Page:Federal Reporter, 1st Series, Volume 7.djvu/347

 SLAVONIAN MINING CO. V. PERASICH. 335 �act Bhowing a present intention of carrying them into effect, even on the ground, would hardly justify the plaintiff in de- clining to make some effort to work. But unless the threats were made on the ground, or so near as to amount to the same thing, they certainly ought not to have that effect. The threats made to Mr. Koeneke by one of the defendants, a half a mile from the mine, do not seem to have had a very setious effect on Mr. Koeneke or the other directors, for they still thonght in June that the work might be done. �Mr. Harpham says he was to try to dd the work, and only serve the papers in case he was not allowed to do it, and that he had a considerable sum of money withhim — $100 or so — with which to carry out that pnrpose. Harpham was not in any way molested when he vieited the mine. He made no attempt to work, but sought Perasich at the Tilden mine, seven tb twelve miles away, to obtain his permission. I have no doubtthat at this time if Harpham, instead of seekihg for Perasich, had made a real effort to perf orm the labor which the law requires, he would have succeeded. But, whether he would or not, it certainly seems to me to have been his duty to try, Yet, although not molested by any one, he is not sure that he got on to the daim while he was in Candalaria^ At this time the plaintiff might have resumed work, and complied with the law if it were done peaceably. It had no need to ask permission of any one. Either its old claim was good or it had none. It might enter by virtue of its old location so long as the ground remained unappropriated. Whenever there has been such force as excuses from performance it has been on the ground. I have not been referred by coun- sel to any authorities on this point. ' �In Rollnson y. Imperial, 5 Nev. 44, De Groat, while en- gaged in feneing liis land, under a law which required him to fence within one year, was foreibly stopped by Black and Eastman, and himself and employes driven from the prem- ises. And in Alford v. Dewin, 1 Nev. 207-14, the defend- ants had entered, and the plaintiffs, being wrongfully ousted, could not f enceV ' I will not say that tHere may not be threats on the ground, unaccompanied by actsi'-of so serious and ��� �