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LARKIN V. UPTON, 144 U. S. 19 (1892)

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U.S. Supreme Court

Larkin v. Upton, 144 U.S. 19 (1892)

Larkin v. Upton

No. 175

Argued March 1, 1892

Decided March 14, 1892

144 U.S. 19


Where special findings are irreconcilable with a general verdict, the former control the latter.

If the findings are fairly susceptible of two constructions, the one upholding and the other overthrowing the general verdict, the former will be accepted as the true construction.

The top or apex of a vein must be within the boundaries of the claim, in order to enable the locator to perfect his location and obtain title, but chanroblesvirtualawlibrary

Page 144 U. S. 20

this apex is not necessarily a point, but often a line of great length, and if a portion of it is found within the limits of a claim, that is sufficient discovery to entitle the locator to obtain title.

Prior to March, 1882, plaintiffs in error, defendants below, filed their application in the United States land office at Helena, Montana, for a patent to the Smelter lode claim. Defendants in error plaintiffs below, "adversed," claiming as owners of a conflicting location, called the "Comanche Lodge Claim," and thereafter commenced this action in the District Court of the Second Judicial District of the Territory of Montana to determine the right of possession to the disputed territory, an area, as alleged, of 7.79 acres. There were two trials in the district court, in each of which the verdict and judgment were in favor of the plaintiffs. The first judgment was reversed by the supreme court of the territory, and a new trial ordered. 5 Mont. 600. The second judgment was affirmed by that court, 7 Mont. 449, which judgment of affirmance was brought by writ of error.

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