Page:Federal Reporter, 1st Series, Volume 8.djvu/876

 862 PEDEBAL BBPORTEB. �in controversy, any other citizen could make a valid location ; for this notice, specifying no bounds or limita, eannot be said to have any «xtent beyond wbat would be nfecessary for sinking a shaft. �3. If you find these matters for the plaintiff, a third question for your consideration ia whether defendant Boaro, in making iJie location under which defendants claim, went into the slight excavation made by Carroll and there sunk his own discovery shaft, or run bis own eut, making that the basia of defendant's location. If he did so, the plaintiff having then a right to that locality, as before explained, the entry of Boaro was an intrusion into his territory, for which he may maintain this action. But it should appear to you, from the evidence, that Boaro entered at the very place which had been previously taken by Carroll, because, as Carroll's notice failed to specify the territory he wished to take, it could not refer to or embrace any other place than that in which it was planted. Possibly the rule here laid down may be applicable to the case in which a subsequent locator may sink his discovery shaft so near to that of the first locator as to pre- vent further work by the latter in the development of the claim. But it is not neceasary to advert to that matter, for the plaintiff contends tihat Boaro went into the very place where Carroll made his excava- tion and planted his discovery stake, and there made a eut, shaft, or other opening, on which to found his own location. That is the question in issue between the parties, and you should decide it on the evidence. �4. These things being found for the plaintiff, a fourth question for your consideration is whether Carroll, after discovering the Iode, abandoned it. To perfeet their location it was incumbent on the plaintiff and Carroll, as the locators of the claim, to sink a discovery shaft within 60 days after the date of location, and to do the other things required by statute within 90 days from that date. Failing in that, they would have no right whatever to the territory in contro- versy. And although Carroll may have intended to do the neceasary work, and to perfeet the location within the time limited by statute, at the time he set up his stake, if he afterwards abandoned that intention the plaintiff eannot recover. It should appear to you, from ihe evidence, that the plaintiff and Carroll, at the time the Hawk location was made, and continuously thereafter, held and maintained the purpose and intention to complete the location, and that they were prevented from doing so by the act of Boaro and Hull in taking possession of the place in controversy, and excluding Carroll and the plaintiff therefrom. If, by the use of reasonable diligence, the plain- ��� �