Page:Federal Reporter, 1st Series, Volume 8.djvu/874

 860 FEDERAL REPORTER. �ing of it, every reasonable intendment must be made in favor of the primary rights of the complainant. At the points of the alleged conflict, no actual encroachment upon these rights can be sanctioned or allowed; and in measuring their extent there must be a liberal consideration of the future as well as the present necessities of the complainant, touchmg the use of the existing tracks, the construc- tion of additional ones, the convenient storage of its freight at ali seasons, and the unembarrassed transaction of its freight business. �In view of theae considerations, the suggestion of Judge Acheson has great force, that it might be most prudent on the part of the respondent to modify its location at Moorhead's and Harbor Creek. ���Erhaedt V. BoAEO and others. [District Court, D. Oolorado. 1881. ) �1. MlSKEAL LaNDS— DlBCOVBRT — Its VaLIDITT. �If the outcrop of a vein or body of mineral-bearing rock is found on the sur- face, the discoTerer has the period of 60 days from the date of the discovery to show that the vein or, hody of rock is in place at a deptb of 10 f eet or more from the surface. �2. Samb— KoTicB. �A locator, under a notice containing no specification or description of the territory claimed by him, has a claim only to the very place where the discov- ery stake was set up. ; �3. Ejbctmbitt. �To main tain an action of ejectment it must be sbown either (1) that a per- fect location has been made, and that there has been dispossession ; or (2) that the failure to perfect the location was due to the wrongful act of the defendant. 4 Equitt. �One cannot take advantage of his own wrong. �Thomas Macon, H. G. Thatcher, and J. M. Semple, for plaintiff. Thomas M. Patterson and Julius Thompson, for defendants, Hallett, D. J., (charging jury.) 1. The first question for the con- sideration of the juryis as to the discovery of a Iode or vein of silver- bearing ore by Carroll at the place in eontroversy, It is incumbent on the plaintiff to show, by preponderance of testimony, that such discovery was made. On this point there is the testimony of Carroll as to what he found there, and some evidence on both sides as to the condition of the ground in the locality. The position of the plaintiff is that the Iode cropped out at the place, and was elearly disclosed by the slight work with a pick which Carroll testifies to. The position ��� �