Page:Federal Reporter, 1st Series, Volume 8.djvu/314

 300 FEDERAL REPORTER. �which was first made. As to the matters here presented for your consideration, that is not a question of any importance in this suit. Probably the plaintiff is confined to the monuments originally located. If it be true, as stated by some of the witnesses, that the Lime was first located further to the west, the plaintiff would be confined to that territory, if an issue should be made upon that point. But the issue here is as to the whole of this claim, and there is no testimony showing the existence of a difference in the condition of the ground, or of the existence of a Iode or vein, if any does exist, in the part which is included in the last survey and not in the first; that is, the small strip of territory along the east side of the claim which may have been, included in the last survey, but not in the first. So that is not a matter of any importance. �Of course there has been considerable said by counsel on both sides upon other matters, as to ability of counsel, and good sense and char- acter and personal relations, which have nothing to do with the case. I suppose it is hardly necessary to mention that. �Now, as to- the matters which are in issue between the parties. You have observed that there is no conflict upon the surface of the ground, except, perhaps, it may be as to the small strip along the east side of the Lime claim and the west side of the Smuggler claim as to which there may be conflicting surveys, and which I have stated toyou is of no importance in this suit. There is no conflict upon the surface of the ground. The plaintiff, by patent from the government issued to per- sons who located the claim, holds the absolute title to what has been described before you as the Lime location ; and we may say that as to the surface, and all that rightfully goes with the surface, the plain- tiff is the absolute owner of that territory. We may say, also, that as to the Smuggler location these defendants, although they have not a government title, a title by patent, are the owners of the surface and all that rightfully goes with the surface of the Smuggler location. So that we have no controversy upon that point. �The law provides that upon a location properly made, and when- ever patent has been issued, we assume in all controversies between individuals that the location is properly made. The law provides that upon a location properly made the claimant shall have the vein upon which the location is made, and all other veins and Iodes having their top or apex in the territory within the lines of the location, and not only within the body of the claim, within the lines of the location, but heyond these lines as far at the vein or Iode may, in its descent into the earth, pass- beyond those lines and within the end lines of the ��� �