Page:Federal Reporter, 1st Series, Volume 5.djvu/186

 3174 TEDESAL BEP0BT2B. �covery of a Iode in the discovery shaft, which extends from Chence to the ground in dispute, would not be available be- yond the extent of the openings. And the plaintiffs have not asked for less than the whole territory in dispute, so that you are advised that, in addition to possession in the plaintiff corporation on September 23, 1879, it must appear from the evidence that a Iode was discovered in the discovery shaft of the Highland Mary claim, and that such Iode extends from that point to the territory in con- troversy. �On these points no remarks from the court are needed ; but I call your attention to one matter having some bearing upon the question whether the Iode, assuming that there is one in the Highland Mary discovery shaft, extends from that point to tLe ground in dispute. There is some question whether the minerai found in the Highland Chief openings is of the same body as that found in the Highland Mary discovery shaft, and one witness, if I am not mistaken, expressed the opinion that they were not the same. The difference in ele- vation of the two shaf ts and the points at which minerai was found, in connection with the topography of the country, seem to raise a doubt on that subject. If you are of the opinion, from the evidence, that there are two bodies of min- erai, separate and distinct from each other, one in the High- land Chief shaft and the territory in dispute very near to that shaft, and another in the Highland Mary shaft, it will be a question of fact on the evidence whether the lattar extends under the first into the territory in dispute. �It is incumbent on the plaintiffs to establish these facts by preponderating testimony; and, in the absence of such testi- mony, you should fmd for defendant. If, however, those facts are establish ed, the plaintiff may prevail, unless defendant has shown a better title to the ground in dispute. And your attention will now be asked to the facts necessary to establish such better title. �Much that has been saidi with reference to the Highland Mary location is equally applicable to defendant's location, which he calls the Eliza; that is to say, a Iode must have been ����