
    159 F. 868
    BIGLOW et al. v. CONRADT et al.
    No. 1,457.
    Circuit Court of Appeals, Ninth Circuit.
    March 7, 1908.
    
      John L. McGinn and Martin L. Sullivan (Campbell, Metson, Drew, Oatman & Mackenzie and E. H. Ryan, of counsel), for plaintiffs in error.
    Heilig & Tozier (T. C. West, of counsel), for defendants in. error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating- the facts as above).

The case is here on the sufficiency of the facts found by the court to support the judgment. The findings have not been carefully prepared, and do not state ultimate facts with fullness or precision; but a fair and reasonable construction of all the findings, taken together, will enable this court to determine the questions in controversy. O’Reilly v. Campbell, 116 U.S. 418, 420, 421, 6 S.Ct. 421, 29 L.Ed. 669. Plaintiffs’ claim to the right of possession of the overlap rests mainly upon two facts drawn from the findings of the court. The first of these facts is that when Carruthers and Anderson, plaintiffs’ predecessors in interest, about May 1, 1905, set out the corner stakes of Creek Claim No. 6A, extending the southeast corner of that claim so as to include the ground in controversy, they did so without opposition of any person whatsoever and in a peaceable manner, and that at that time neither of the defendants nor any one in their behalf was upon or engaged in work upon any part of the ground in dispute in this action designated as the overlap. But the court also found that prior to the time Carruthers and Anderson set out the corner stakes for their Creek Claim No. 6A they had no possession of any part of the defendants’ bench claim, which at all times was in the possession of the defendants, and was being worked in April, 1905, by one of the defendants who was then engaged in sinking a shaft on the claim. The entry of Carruthers and Anderson upon defendants’ claim for the purpose of setting out a stake for the extension of their Creek Claim No. 6A was, therefore, an intrusion. As against a mere intruder, the possession of a mining claim by a locator who has complied with the law is of itself sufficient to prevent the intruder, even upon a peaceable entry, from acquiring a right of possession. 1 Lindley on Mines, §§ 216, 218, 219; Haws v. Victoria Copper Mining Co., 160 U.S. 303, 316, 16 S.Ct. 282, 40 L.Ed. 436; McIntosh v. Price, 121 F. 716, 718, 58 C.C.A. 136; Eilers v. Boatman, 3 Utah, 159, 2 P. 66.

The second fact upon which plaintiffs rely is that, when Carruthers and Anderson went upon defendants’ claim and set their corner stakes for their Creek Claim No. 6A, no discovery of gold had been made upon defendants’ claim. It is therefore contended that as there was no discovery by defendants there was no location by them; but plaintiffs are not in a position to urge this objection to defendants’ claim as a reason for appropriating a portion of it by an overlapping location. To do this they must have had some superior right to the ground within such overlap, and this they did not have by reason of any discovery relating to a claim including the overlap. Plaintiffs’ position is this: That Carruthers and Anderson in September and October, 1904, sunk a discovery shaft to the depth of 39 feet, where they found colors of gold, upon which they claimed a discovery for 6A. This was nine or ten months before the discovery of gold upon defendants’ claim, which, as before stated, was made on July 7, 1905. But this discovery shaft was sunk within the boundaries of the original claim, and six or seven months before Carruthers and Anderson attempted to extend the boundaries of their claim so as to include that portion of defendants’ claim within the overlap. This discovery — and no other was made — had relation, therefore, to the original boundaries of plaintiffs’ claim, within which it was made, and fixed their right of possession to the claim within such boundaries; but it had no relation to the claim with the extended boundaries, made six or seven months later, so as to include a portion of defendants’ claim in the overlap, and the discovery made within the original boundaries of the claim fixed no right of possession to such extended boundaries as against the defendants’ right of possession of their claim.

Moreover, the defendants were the first and only persons to make a discovery of gold in the overlapping ground, and the occupation of the ground by the defendants for mining purposes which enabled them to make this discovery was without opposition on the part of the plaintiffs. It therefore appears, from the facts found, that the plaintiffs acquired no right of possession in the overlapping ground, by extending the boundaries of their claim so as to include it, as against defendants’ actual possession of the ground as part of their claim. This we understand to be the law as declared in Belk v. Meagher, 104 U.S. 279, 284, 26 L.Ed. 735.

The findings being sufficient to support the judgment, the judgment of the court below is affirmed.  