Counsel have tried this case upon the theory that the excess over 30 acres in “6A” was the important feature in the case; but a careful study of the evidence has led me to the conclusion that that is not so important as two other features which seem to me to be decisive of the controversy.
The first of these is that the area in “6A” was for about a year ’after its location limited by the calls for distances on its center stakes of 490 feet on each side thereof. These two center stakes were set on September 14, 1904, by Carruthers and Anderson, and the area of “6A” as then claimed by them was from the lower to the upper center stake, called 1,000 feet, but actually only 873 feet, and 490 feet on each side of the base line, and thus containing less than 30 acres.. Their discovery shaft, in which at a depth of 39 feet they claim to have discovered gold, was within this area, and conceding that they made such discovery in September, 1904, it gave life to a claim only 873 feet long by 980 feet wide. No outboundary stakes were then set, and no outboundaries known or claimed, except those indicated by the calls for distances on the center stakes. That area did not include any part of the overlap now in controversy. That was all-outside the boundaries of “6A” at the time of that discovery.
The second admitted fact, which seems a decisive one, is that when, about the last of April or the 1st of May, 1905, Anderson and Carruthers first set out their outboundary stakes as they now stand, and thus extended the side lines of “6A” so as to overreach the Salmon bench and create the overlap in *140controversy, the defendants were in the actual possession of the whole of the Salmon bench and engaged in seeking to make a discovery of mineral thereon. The Salmon bench had been thus marked on March 19, 1904, more than a year before Anderson and Carruthers attempted to extend the boundaries, of “6A” by setting stakes at its corners. This being admitted, it seems to me to follow as a matter of law that Carruthers and Anderson could not, by extending their boundaries, include any part of the claim of the defendants. 1 Lindley, § 373; O’Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. 421, 29 L. Ed. 669. Nor can one thus locate additional ground of which another is in the actual possession, because it is. not vacant, unoccupied, and unappropriated lands. Eilers v. Boatman, 3 Utah, 159, 2 Pac. 66, 15 Mor. Min. Rep. 462; Id., 111 U. S. 356, 4 Sup. Ct. 432, 28 L. Ed. 454; McIntosh v. Price, 121 Fed. 716, 58 C. C. A. 136. So far as the evidence in this case discloses the fact, the defendants were in actual possession of the Salmon bench when Carruthers and Anderson thus sought to overlap it, and have been in the good-faith possession thereof ever since, and have engaged in working it for the gold therein.
Judgment for defendants.