Marshall v. Harney Peak Tin Mining, Milling & Manuf'g Co.

Citations

• 1 S.D. 350
• 47 N.W. 290
• 1890 S.D. LEXIS 40

Syllabus

<p>1. On an application to take the case from the jury, whether by motion for a nonsuit, or the direction oí a verdict, or by demurrer to evidence, the evidence of the opposite party must be assumed to be true, and he is to be given tho benefit of all legitimate inferences therefrom in his favor.</p> <p>2. The essentials to Complete a mining claim, so as to vest in the claimant a statutory grant from the United States, are (1) discovery; (2) notice; (3) location; (4) marking’ boundaries; (5) record.</p> <p>3. Discovery and appropriation are recognized as sources of title to mining-claims; and development as the condition of continued ownership, until a patent is obtained.</p> <p>4. Whenever preliminary work is required to define and prescribe alocatod mining claim, the law protects tho first discoverer in the possession of the claim, until sufficient excavations and developments can be made, so as to disclose whether a vein or deposito! such richness as to justify work exists, up to the time limited by the statute for doing such work.</p> <p>5. Tho question of abandonment of a mining claim is one of intention, and the intention is to be gathered from all the evidence and inferences from it. This is particularly within tho province of a jury, to be determined from all the fads and circumstances of the case, and is not a question for the court.</p> <p>(Syllabus by tho Court.</p> <p>Reporter: An order granting a rehearing of this case was made by the court January 30, 1891. Upon the rehearing the foregoing opinion of the court was adhered to and the case remanded for a new trial. (54 N. W. 272.)</p>