MINING CLAIM-continued.

defendant who had formerly been in possession was not still in posses-
sion at the time of his location. A location may be valid up to, but
cannot be extended over a senior discovery in the actual possession of
another.
Id.

8. MINING CLAIMS-REQUISITES TO GIVE TITLES THERETO.- On the
public domain a miner may hold the place in which he may be work-
ing against all others having no better right. But when he asserts
title to a full claim of one thousand five hundred feet in length and
four hundred feet in width, he must prove a lode extending through-
out the claim. Zollars and Highland Chief Consolidated Mining
Co. v. Evans,
39

9. EJECTMENT - WHAT NECESSARY TO MAINTAIN FOR MINING
CLAIMS - BURDEN OF PROOF.- To maintain an action of ejectment
for a mining claim, the plaintiff must establish not only that he is in
possession, but that a lode had been discovered on the claim prior to
the commencement of action, and that such lode so discovered ex-
tends from the discovery shaft to the ground for which he sues. These
are facts to be determined by the jury from a preponderance of the
evidence. As to them, the burden is on the plaintiff.
Id.
10. DISCOVERY OF MINERAL, THOUGH MADE AFTER LOCATION, WILL
AVAIL AGAINST STRANGERS.— -Though the locators of a mining
claim may not, at the time of the location and survey of the claim,
have sunk their shaft to the discovery of mineral in place, yet, if they
shall thereafter so sink the shaft and find the lode, they will hold as
against all who had not theretofore acquired an interest in the lode
the discovery relating back to the location.
11. MINING CLAIM-DEFECTIVE LOCATION CERTIFICATE MAY BE
AMENDED PAPER TITLE.- When there is conflicting evidence
touching the facts necessary to make valid the original location of a
mining claim, the paper title of grantees claiming under the original
locator will go the jury. A location certificate which is fatally de-
fective, in omitting reference to natural object or permanent monu-
ment, may go the jury in connection with an amended certificate
correcting such defect. Van Zandt, Trustee, v. The Argentine Min-
ing Co.

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Id.

159
12. PRACTICE-AMENDMENT AT THE HEARING.- Plaintiff having de-
clared for the entire property, it was developed on the trial that, in
consequence of a defective deed, he had title to only two-thirds of the
claim. Held, that plaintiff could not, on this declaration, recover for
two-thirds, and that the person holding title to the other third of the
claim might not, without his consent, be joined as party plaintiff, yet
plaintiff might amend his complaint so as to demand but two-thirds.

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Id.
13. MINING CLAIM- PREREQUISITES TO LOCATION.— Under the statutes,
federal and state, no location of a mining claim shall be made until

MINING CLAIM-continued.

the discovery of a vein or lode within the limits of the claim; and a
discovery shaft must be sunk thereon to the depth of at least ten feet.
The mineral or ore so discovered must be in position in the form of
a lode and not in a broken and fragmentary condition, intermingled
with slide and debris on the surface. Discovery of ore after location,
in a different part of the claim, will not avail.
Id.
14. THE BURDEN is on the plaintiff to establish the fact that ore was so
found in his discovery shaft, and that the same lode is continuous to
the ground in controversy.

Id.
15. EVIDENCE, WHAT SHALL BE OF PRIOR LOCATION.- Proof of the
date of plaintiff's location, the others not being shown, and the fact
that plaintiff's location is excepted from defendant's patents, will raise
a presumption that plaintiff's location was first made.

Id.
16. THE TOP OR APEX, ON A JUNIOR DISCOVERY - SENIOR LOCATION
ON THE "DIP" WILL HOLD.-Ordinarily the owner of a mining
claim in which is found the top or apex of a lode may follow the vein
within or without his side lines on its "dip" to any depth; yet, if the
same vein has been previously discovered and located on the "dip,"
such discovery will prevail against a junior discovery, though located
on the apex of the vein.
Id.

MINING LOCATION. See Location.
1. MINING LOCATION - PATENT

- WHAT THEY CARRY WITH THEM.-

The law provides that upon a location properly made, the claimant
shall have the vein upon which the location is made, and all other
veins and lodes having their top or apex within the lines of the loca-
tion; and not only within the body of the claim within the lines of
the location, but beyond those lines as far as the vein or lode may, in
its descent into the earth, pass beyond those lines and within the end
lines of the location. But such vein or lode must be in place. Iron-
Silver Mining Company v. Cheeseman et al.

191
2. VEIN, LODE or Ledge - DEFINITION OF-Existence of, a QUES-
TION OF FACT.- Vein, lode and ledge are the words used in the
statute to designate a mineral deposit in rock, and are supposed to be
nearly synonymous in meaning. For the purposes of this case, it is
sufficient to say that a vein or lode is a body of mineral or mineral-
bearing rock within defined boundaries in the general mass of the
mountain. The existence of such vein or lode is a question of fact to
be found by the jury from the evidence before them.
Id.

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3. ORE BODY "IN PLACE' "— WHEN. — If the ore ody is continuous to
the extent that it may maintain that character, it is in place, whether
deposited in that form, or moved to its position bodily with its inclos-
ing walls. Whether the vein is thick or thin is not material, so it is
continuous. But if the territory is so broken up, jumbled and mixed,
the several parts together, that there is nothing continuous, there is
no lode in place.
ld.

MORTGAGE. See Statute, 1. Partnership, 3, 4. Equity, 7. Receiver, 1.
Administrator, 3, 4, 5, 6. Mechanic's Lien, 3.

13

1. MORTGAGE OF PERSONAL PROPERTY - DELIVERY.- At common law
a secret conveyance of personal property, without delivery, was fraud-
ulent and void as to all who should deal with the vendor upon the
faith of his ownership. Crooks, Assignee, v. Stuart et al.
2. SAME STATUTE OF IOWA.- The statute of Iowa provides that “no
sale or mortgage of personal property, where the vendor or mortgagor
retains actual possession thereof, is valid against existing creditors or
subsequent purchasers without notice," unless the instrument is exe-
cuted and recorded as conveyances of real estate are required to be
executed and recorded. The ruling of the supreme court of Iowa,
that a mortgage of personal property, when recorded, is good as
against a creditor of the mortgagor who becomes such after the exe-
cution and before the recording of the instrument, being a decision
upon a question of the construction of a state statute, is a rule of
decision for this court; but if it were an open question, this statute
would be construed as merely declaratory of the common law rule
above stated.

Id.

3. SAME - DEALING with the MORTGAGED PROPERTY BY MORTGAGOR
AS IF IT WERE HIS OWN.- Independently of the statute the law is,
that where the mortgagor of a stock of goods remains in possession,
and continues to sell, dispose of and deal with the property as if it
were his own, the mortgage not being recorded, the same is void as
against a creditor of the mortgagor who becomes such without notice
of the mortgage. This being a question of general law, this court is
bound by the decisions of the supreme court of the United States
upon the subject.

MORTGAGEE. See Mortgage, 2, 3.

MORTGAGOR. See Mortgage, 2, 3.

Id.

MOTION. See Infringement, 3. Estoppel, 4.

MOTION TO DISMISS. See Practice, 4.

MUNICIPAL BONDS. See Bonds, 3, 13, 16, 17.

MUNICIPAL CORPORATIONS. See Election Precinct, 4. County, 1, 2.

Mandamus, 3. Constitutionality, 1, 2, 3.

MUTUALITY. See Contract, 4, 5.

NATIONAL BANKS. See Banks, 1.

NAVIGABLE RIVER. See Bridge, 1.

NAVIGATION. See Mariner, 2.

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NEGLIGENCE. See Verdict, 2, 3. Common Carrier, 1, 2. Pleadings, 2.
1. NEGLIGENCE FELLOW SERVANTS.-If a corporation employs several
agents as fellow servants in the same common employment, and one of
those servants is injured by the negligence of another, the corporation
(at common law) is not liable unless it be that the servant who is guilty
of the negligence was employed by the company with knowledge that
he was incompetent or negligent, or was continued in service by the
company after notice of the fact that he was incompetent or negligen t
Ross v. The Chicago, Milwaukee & St. Paul Railway Company, 235
2. SAME-COMMON SERVICE.- If the company sees fit to place one of
its employees under the control and direction of another, then the two
are not fellow servants engaged in the same common employment
within the meaning of the rule above stated.
Id.
3. SAME-SAME.- Where the rules of the company required that "con-
ductors must in all cases, while running by telegraph or special orders,
show the same to the engineer of their train before leaving stations
where orders are received," and that "the engineer must read and un-
derstand the order before leaving the station," held, that the engineer
was in an important sense subordinate to the conductor, and they
were not fellow servants.

Id.

4. SAME-SAME.- Under such a rule the conductor was the superior of
the engineer in respect to the duty of delivering or showing the run-
ning orders to the engineer, and when such conductor failed to show
such orders to such engineer, and an accident happened by which the
engineer was injured, held, that the company was liable.
Id.

5. RAILROAD COMPANY-DUTY TO EMPLOY COMPETENT PERSONS.-
When a railroad company takes a servant into its employ it becomes
obligated to use proper diligence in the employment of fellow servants
of ordinary fitness and competency, and not to continue an incompe-
tent or unfit person in its service after notice.
Id.

6. SAME

DUTY OF GIVING NOTICE.- If one servant of a railroad com-
pany becomes aware of the negligence or incompetency of a fellow
servant, it is his duty to give notice to the company.
ld.
7. Same— DutTY OF COMPANY UPON RECEIVING NOTICE.-Upon re-
ceiving notice of the incompetency or negligence of an employee, the
railroad company continues him in service at its own risk, notwith-
standing the fact that it may have made inquiry or had an investiga-
tion and decided that such servant was not negligent or incompetent.
It is bound by the fact, whatever it may be.
8. SAME

Id.

REMAINING IN SERVICE AFTER NOTICE.-Where an em-
ployee knows that a fellow servant is negligent or incompetent and
gives notice thereof to the company, he is not bound, at once, to leave

NEGLIGENCE-continued.

the service of the company, He may remain a reasonable time with
the expectation that the company will do its duty.
Id.
9. EXHIBITION OF NEW INVENTIONS.- New inventions in machinery
are not prohibited from being shown in proper places, in proper condi-
tion and at proper times, because either men or animals may become
frightened at the unusual sight. Huntoon et al. v. Trumbull et al.
314
10. SAME-PROPER CARE.- The usual place of keeping machinery of
new or unusual character may be considered by the jury as bearing on
the question of proper care.

Id.
11. CAUSE OF RUNAWAY.- In an action for damages caused by a runaway
horse, if the jury are satisfied from the evidence that the horse was
dangerous in the sense of being disposed to run away, that fact may
be considered with the other testimony in arriving at the cause of the
runaway.
Id.
12. KNOWLEDGE OF HORSE'S CHARACTER.- The knowledge of the hus-
band (who is the driver), concerning the disposition of the horse, is the
knowledge of the wife.

Id.
13. ACCIDENT CAUSED BY VICIOUS HORSE.-If neither the husband nor
wife knew the vicious character of the horse, yet if the jury are satis-
fied from the evidence that the horse was vicious, and that being so,
caused or actually contributed to the running away and consequent
injury, they must find for the defendants.

Id.

14. NEGLIGENCE - UNNECESSARY DELAY IN TRANSPORTING FREIGHT-
THAT THE COMPANY NEEDED ITS ROLLING STOCK FOR OTHER PUR-
POSES, NO EXCUSE FOR.- It is the duty of a railroad company,
engaged as a common carrier, to transport freight without unneces-
sary delay. A delay of twenty-four hours at a station on the way is
an unnecessary delay, unless excused. That the company needed its
rolling stock for the purpose of conveying passengers is not a suffi-
cient excuse. The duty of the company is to be prepared to execute
its contracts, both to carry passengers and freight. It cannot excuse
itself for failure to do the one, on the ground that it was bound to tlo
the other, and was not able to do both. Ormsby v. U. P. Railway
Company,
48
15. CONTRIBUTORY NEGLIGENCE — A FACT FOR THE JURY.- If plaintiff
by his negligence materially contributed to the injury which he has
sustained, he cannot recover. It is for the jury to determine whether
the plaintiff, under the circumstances as shown by the proof, acted
with reasonable and ordinary prudence, and whether his conduct con-
tributed to the injury which he sustained.
Id.
16. A COMMON CARRIER CANNOT RELIEVE HIMSELF FROM RESPONSI-
BILITY FOR HIS OWN NEGLIGENCE BY CONTRACT WITH THE
SHIPPER. A common carrier cannot relieve himself from responsi-
bility for his ovn negligence, or the negligence of his employees, by

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