Page:Federal Reporter, 1st Series, Volume 7.djvu/346

 334 FEDERAL REPORTER. �mine. Mr. Koeneke states further that he did go on to the mine, anrt finding a padlock on the dobr of the tunnel abandoned the idea of work. �Mr. Harpham testified: �He was sent down by the board of directors in June, 1880, a.s agent and attorney at law ; that befbre going to Candalaria he stopped in Carson and commenced this suit, taking the summons along, to be served in case he was net allowed to do the annual work on the mine for the year ; that on liis arriva) at Candalaria he made inquiries touching the locality of the mine, and went out to it or in its vicinity. He says, on cross-examination, he does not know whether he was on the claim, or within a quarter of a mile of it, but saw the mouth of the tunnel closed up. He further testi- fles that without attempting to do any work, although in no way molested, he next sought the defendants, and sought permission of Thomas Perasich to work before trying to do any ; that he found Thomas Perasich at the Tilden mine, some 10 or 12 miles from Candalaria, and at that distance from the mine told him he had corne down to do the annual work for the year ; that Perasich there told him that the mine was his, and he was in possession, and would blow the top of anybody's head ofE who tried to do work on the claim for plaintifF ; that the deputy marshal was with him, and upon this he had him serve the summons. He also testifles that from what he heard about Candalaria he did oot think it would be safe to try to work. �This is a favorable statement of the evidence for the plain- tiflf. Both Perasich and Gregovich deny that any threata were made, and Perasich denies that there was any padlook on the tunnel door. There is also some conflict as to what occurred at the Tilden mine. Perasich denies that he said he was in possession, and denies that he was in fact in pos- session at the time this suit was commenced. But let us assume that the statements of Mr. Koeneke and Mr. Harp- ham are absolutely correct, pnd it does not follow that what they did amounts to a resumption of work as the law requires. Neither states that thei'e was any offer of violence even at that distance from the mine. No weapon of any kind was shown, and there was no demonstration by any act, so far as testimony shows, calculated to alarm, beyond these naked threats, made in one instance a half a mile and in the other seven to twelve miles from the ground in controversy. More- over, it appears by the testimony of both that they went to the mine during their stay at Candalaria, and were altogether unmolested. Why no attempt was made to work at these times does not appear, Words, unaccompanied by any overt ��� �