Page:Federal Reporter, 1st Series, Volume 5.djvu/187

 Z0LLAR3 U. EVANS. ���175 ���found in the discovery shaft, and the Iode must extend from that point to the ground in dispute. PerhapB there is'some doubt bere, also, -whather any body of minerai or mineralized rock that may be called a Iode waa found in the discovery shaft, and, if so found, whether the same body was exposed tn the territory in dispute. Those questions are submitted to your decision on the evidence, and assuming that the plàin- tiffs have established their right, as before explained to you, if you further find that defendant's grantors discovered a Iode in the Eliza discovery shaft, and that such Iode extends from thenoeinto the ground in dispute, the defendant will prevail; because, as was before explained to you, plaintiffs' right cannot be of earlier date than July 30, 1879, and defendant, if his grantors made a valid discovery and location, dates back to 1878, long prior to the date of plaintiffs' title by possession. It is true that there is some controversy upon the question ■whether, at the time of the surveyof the Elizalode, in July,1878, the locators bad sunk their shaft to the point.where they claim to bave found the Iode; but, if they had nofe done so, they did in fact sink it to the point mentioned by September foUow- ing ; and if they then found à Iode they could bave advan- tage of it, as against ail who had not then acquired an interest in the Iode, in the same manner as if they had uncov- ered it before making their survey and filing their certificate. And if their location was completed by or before September, 1878, it antedates plaintiffs' title by possession in the same manner as it would if it had been completed in July of that year. In that view, the question as to defendant's title still remains whether a Iode was discovered in the discovery shaft, and whether such Iode extends from that point to the ground ' in controversy. �If the plaintiffs have established their title, as first ex- plained to you, and the defendant bas not established his title, your verdict should be for plaintiffs. If the plaintiffs bave failed to establish their title, or the defendant has established his title, your verdict should be for defeftdant. �Verdict for defendant. ����