Page:Federal Reporter, 1st Series, Volume 8.djvu/877

 HARKIS V. EQUATOE MINING & 8MELTING 00. 863 �tiff and Carroll could have obtained possession for the purpose of doing the necessary work, it was their duty to use such diligence. If, by demand on Boaro and Hull, they could have obtained such posses- sion, it was their duty to make such demand. But they were not bound to attempt to do the work at any other place than that which had been selected by Carroll, nor were they bound to use force to gain possession, or even to bring an action therefor. If they were excluded by Boaro and Hull from the possession of the very place selected by Carroll for bis discovery eut or shaft, with intent on the part of the latter to hold the ground against them, it is enough on this point. �5. These several questions must be found for plaintiff, by prepon- derance of testimony, to support a verdict in his f avor ; for if, after one haiS discovered a Iode, and set up a notice of his claim to it, and within the time fixed by law for doing the work necessary to a valid location, another cornes to the same place and takes possession thereof, to the exclusion of the first, he shall not have advantage of his own wrong; nor shall the subsequent loeator in such case be permit- ted to allege anything against the right of the first loeator. To per- mit the junior loeator to deny the right of the other, under such circumstances, would be to deny him all remedy, which cannot be allowed. And, therefore, if the facts mentioned are established by the evidence, the regularity and validity of plaintiff's location shall be asBumed. And if, upon the evidence, you affirm the foregoing propositions for the plaintiff, your verdict should be for him. If you deny any or all of them, yt)u should find for defendants. ���Haeris and others v. The Eqtjatob Mining & Smelting Co. �(Circuit Court, D. Colorado. October 6, 1881.) �1. MlSBBAI, LaNDS — TlTLE — ACQUISITION OP. �The rules applicable to real property apply to public minerai lands. There- fore, a purchaser ia possession of a mining claira under color of title may, in time, under the statute of limitations, obtain a perfect title thereto as against all other persons. �2. Dbeds— Records. �Matters of record are incorporated into a deed by reference. �Ejectment to recover possession of the Ocean Wave iode, situate in GrifiBth mining district, Clear Creek county, Colorado. Trial at May term, 1881, and verdict for plaintiffs. Motion for new trial. ��� �