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Opinion of the Court.
“ Answer. Yes."
“1st. If the jury find that the locators of the Comanche lode claim discovered a vein in the hole or shaft claimed as the Comanche discovery, then the jury will answer: Was the top or apex of such vein within the limits of the Shannon claim as patented ?
We fail to see any conflict between these findings and the general verdict. They show that within the discovery shaft a vein was disclosed, and that the top or apex of such vein was not within the limits of the Shannon claim. It follows, of course, that it must have been within the Comanche claim, and that was sufficient to sustain the location. It is said that the second finding, which is to the effect that a part of such vein or lode was south of the boundary line and within the limits of the Comanche claim, carries with it the implication that part was north of that boundary and within the Shannon claim; that as the testimony shows that the general direction of the dip was southward, and only a part of the vein or lode was within the Comanche claim, the apex of this vein was necessarily within the Shannon claim. But it is distinctly found that the top or apex was not within the limits of the Shannon claim; and because the jury responded “yes” to a question as to whether a part of this vein was within the Comanche claim, it does not follow that they would have responded “no” if the question had been whether all of the vein was within the Comanche territory. Doubtless the form of this question was adopted by counsel for plaintiffs in view of the conflict as to the boundary line; but it is not fair to infer from the mere form that the jury meant to find, or would have found, if the distinct inquiry had been presented to them, that any portion of the vein was within the Shannon territory. It would be a strained inference from the facts as found, that any portion of the vein, from its apex downward, at least so far as disclosed in the discovery shaft, was north of the boundary line within the limits of the Shannon claim. There is, therefore, no conflict between the findings and the verdict, and there was ample testimony to sustain both.
Opinion of the Court.
Counsel for plaintiffs in error insists that under the instructions the jury might have found for the plaintiffs, if any portion of the apex was within the Comanche territory, and in support thereof refers to this instruction:
“8. (Given.) The apex of a vein or lode is the highest point thereof, and may be at the surface of the ground or at any point below the surface. When the vein or lode does not crop out, but is what is called a blind vein or lode, the apex thereof would necessarily be below the surface of the ground; and in this case you are instructed that if the locators of the Comanche lode vein, at the time of the location thereof, found, or if, from the work done by others prior thereto, they could see, at any point within the limits of said location, a lode or vein the top or apex of which was within the said lines of their location, then, in such case, they made a discovery of a lode or vein such as the law requires to be made to entitle them to locate the ground, and it is wholly immaterial as to the amount or quantity of such vein or lode which may have been found within the limits of their said location; any amount of it would suffice, however small, either as to the amount of the vein or its apex within the limits of the said location.”
While the giving of this instruction was at the trial excepted to, error has not been here assigned thereon, and with one construction, at least, of its language it is undoubtedly correct. The apex of a vein is not necessarily a point, but often a line of great length. Any portion of the apex on the course or strike of the vein found within the limits of a claim is sufficient discovery to entitle the locator to obtain title; for while the owner of a vein may follow it in its descent into another's territory beyond his own side lines, he cannot beyond his end lines, and the vein beyond those end lines is subject to further discovery and appropriation. That such was the understanding by the jury of the instruction and such the fact in this case is evident from the findings. Indeed, it would seem from some of the testimony that the course or strike of this vein was not exactly along the boundary line between the Comanche and the Shannon, but varying somewhat therefrom; hence the apex, in its full width and with some portions of its
Opinion of the Court.
length, might be found in each claim, and so discovered justify the discoverer in obtaining title to each. We see no error in the proceedings, and the judgment will be
UNITED STATES v. WILSON.
APPEAL FROM THE COURT OF CLAIMS.
No. 1157. Argued January 26, 1892. – Decided March 14, 1892.
Under the act of March 3, 1883, “ to adjust the salaries of postmasters,"
22 Stat. 600, c. 142, a postmaster who is assigned by the Postmaster General to the third class, at a designated salary, from a designated date, is entitled, if he performs the duties of the office, to compensation at the rate of that salary, from that date, without regard to his appointment by the President and confirmation by the Senate.
The case is stated in the opinion.
Mr. Assistant Attorney General Parker for appellant.
Mr. Harvey Spalding for appellee.
MR. JUSTICE LAMAR delivered the opinion of the court.
This was an action in the Court of Claims by a late postmaster of Chadron, Nebraska, to recover an alleged balance of salary claimed to be due.
The material facts are these: The claimant was a fourthclass postmaster, duly appointed and qualified, at Chadron, Nebraska, from July 1, 1885, to January 25, 1887. When he was first appointed the salary of the office was $1000 a year; and it continued at that figure until October 1, 1886, when, by an order of the Postmaster General, issued a few days previously, the office was assigned to the third class, and the salary was increased to $1600 a year. Although the office
Opinion of the Court.
was thus advanced in rank and the salary attached to it increased, and the claimant continued to discharge the duties of it, he was not commissioned by the President a third-class postmaster until January 25, 1887; and, under an order of the Sixth Auditor, dated November 16, 1886, he was not permitted to enjoy the benefits of the increased salary until he was commissioned a third-class postmaster, but continued to draw a salary from October 1, 1886, to January 25, 1887, at the rate of only $1000 a year. Insisting that his salary for the period last mentioned should have been at the rate of $1600 a year, under the order of the Postmaster General, instead of at the rate he was paid, the claimant brought his action in the Court of Claims to recover such alleged balance. That court sustained his claim, and rendered judgment in his favor for $190, that being the difference between the amount of his salary for the period mentioned at $1000 a year and at $1600 a year. 26 C. Cl. 186. From that judgment the United States appealed.
To understand the precise nature of the question involved in this case, a reference to the act of March 3, 1883, c. 142, 22 Stat. 600, 602, relating to the salaries of postmasters, is neces sary. Section 1 of that act reads thus :
“That the respective compensation of postmasters of the first, second and third classes shall be annual salaries, assigned in even hundreds of dollars, and payable in quarterly payments, to be ascertained and fixed by the Postmaster General from their respective quarterly returns to the Auditor of the Treasury for the Post Office Department, or copies or duplicates thereof, to be forwarded to the First Assistant Postmaster General, for four quarters immediately preceding the adjustment, at the following rates, namely.”
Then follows a table of what shall constitute offices of the various classes, with the salary attached, the salary in each instance being made dependent upon the gross receipts of the office; and, with reference to third-class offices, the section, in one paragraph, provides as follows:
“Gross receipts, four thousand two hundred dollars, and not exceeding five thousand dollars, salary, one thousand six hundred dollars."
Opinion of the Court.
Offices whose gross receipts are less than $1900 per annum are assigned to the fourth class; and by section 2 of the act it is provided that the salary of postmasters of that class shall be determined by a graduated scale of commissions upon postages, etc., and the box rents collected, the same to be ascertained and allowed by the Auditor of the Treasury for the Post Office Department in the settlement of the accounts of such postmasters upon their sworn quarterly returns. The second section then provides as follows:
“That when the compensation of any postmaster of this class shall reach two hundred and fifty dollars for four consecutive quarters each, exclusive of commissions on money order business, and when the returns to the auditor for four consecutive quarters shall show him to be entitled to a compensation in excess of two hundred and fifty dollars per quarter, the auditor shall report such fact to the Postmaster General, who shall assign the office to its proper class, and fix the salary of the postmaster as provided by section one of this act.”
“ SEC. 3. That the Postmaster General shall make all orders relative to the salaries of postmasters; and any change made in such salaries shall not take effect until the first day of the quarter next following the order; and the auditor shall be notified of any and all changes of salaries.”
Reverting again to the facts of the case as found by the Court of Claims, and applying the statute just referred to, a satisfactory solution of the question involved will be found. The third and fourth findings by the Court of Claims are that for the four quarters between July 1, 1885, and July 1, 1886, the claimant made returns from his office to the auditor showing gross receipts amounting to $1912.99, of which $338.50 was from box rent; and that the auditor thereupon reported this fact to the Postmaster General, with a statement showing that the claimant, upon these returns, would be entitled to commissions and box rents amounting to $2150.85 for the four quarters, being at the rate of $537.71 per quarter.
Here, then, was a case in which the returns made by the postmaster to the auditor showed the postmaster “to be entitled to a compensation in excess of two hundred and fifty