Page:Federal Reporter, 1st Series, Volume 8.djvu/316

 302 FEDBRAIi BBPOBTBR. �sami>Ies of ore were taken from all parts of the vein, and found to odntain silver and lead. The rnups put before you by plaintiff to show the condition of the groundgive the vein as extending from one claim to the other; and clearly that is the position assumed. �On the other hand, defendants contend that the ground in eontro- versy is so broken, and the several parts so intermingled, that there is not, and cannot be, a body of ore extending for any considerable distance through any part of it. They have many witnesses to testify to that condition of the ground. They concede that in the ground in Icontroversy there are detached fragments,, particles, and perhaps masses of ore intermingled with the country rock in the like fragments, particles, and masses; but they deny that there is anything like a continuons body or sheet of ore extending from one daim to the other. And this is the question in issue. It is pretty nearly a direct issue between the witnesses for the plaintiff and the witnesses for the defendants, and, as you give credit to one party or the other, you should find the fact. . I don't think that I can in any manner make it clearer to you. I have to say, also, that the burden of proof is upon the plaintiff by a preponderance of testimony to establish the facts which are necessary to support a finding in its favor; and the fact mainly in issue, as I have stated to you, is : What is the condition of this ground extending from one of these daims into the other? �A good deal has been said by the witnesses as to whether there is a top or apex of the vein. That depends, gentlemen, very much as to whether there is any vein or Iode there. If you find that there is a vein or Iode, to my mind the evidence is clear enough that the top of it is in the Lime location; and if there is none there, of course that which does not exist, does not exist in any part — it does not exist by its top nor by its bottom, nor anywbere between the two poirats. 8o that it is, gentlemen, a question of the credibility of witnesses. The testimony is strongh' conflicting— I don't think Ihave ever known a case in which it was more so; and, as I have said, the question is as to which one of these theories you will accept. �Now, I ought to say to you, further, that as to this ore body that i have spoken of, whether it is of greater or less exteut-^that is, whether it is very thin or very thick — is immaierial. If it extends, as claimed by the plaintiff, from their claim to and into the othei-, the strength of the vein is not material. Their position. is, as you remember, that it extends all the.way from their claim to"a.nd into the other, sO far as it has been explored, and it is not material whet lier it is stroug or wealv, il it. extends in the manner described by them. : ��� �