United States v. Marshall Silver Mining Co.

U.S. Circuit Court for the District of Colorado

United States v. Marshall Silver Mining Co.

17 F. 108, 5 McCrary's Cir. Ct. Rpts 325, 3 Colo. L. Rep. 561, 1883 U.S. App. LEXIS 2231

CourtU.S. Circuit Court for the District of Colorado

DecidedJune 28, 1883

StatusPublished

This text of 17 F. 108 (United States v. Marshall Silver Mining Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Marshall Silver Mining Co., 17 F. 108, 5 McCrary's Cir. Ct. Rpts 325, 3 Colo. L. Rep. 561, 1883 U.S. App. LEXIS 2231 (circtdco 1883).

Pincite

Opinion

McCrarV, Circuit Judge

(orally).

In the case of the United States against The Marshall Silver Mining Company and others, I have considered the demurrer to the bill. The bill charges, at very considerable length, a [562]*562conspiracy between defendants and certain Land Officers to change the boundaries of a claim for a patent, and to do this fraudulently for the purpose of extending one claim over the lines of another, and thus secure a patent to the defendant here, the Marshall Silver Mining Company, for certain mining property which was in equity the property of McClellan, Webster and Rist, who also had their application pending. Numerous acts and several rulings of the Land Officers are charged specifically in the bill as having been wrongful and fraudulent, as having been done and made in pursuance of the general conspiracy to perpetrate a fraud upon the United States, and also upon McClellan, Webster and Rist. I will not take the time to repeat the allegations of the bill, or to go into any discussion upon them. It is sufficient for the present to say that, in my judgment, it charges conspiracy and fraud with sufficient certainty to require an answer. Whether the facts when fully developed will show a fraud upon the United States, or only upon McClellan and Webster, or whether it will show a fraud upon both, are questions we can better determine upon the proofs and on final hearing.

Andrew W. Brazee, District Attorney. Morrison & Fillius, for defendants.

They are questions of some importance, perhaps of some difficulty. It is probably not entirely settled as to how far, or to what extent, an injury to the Government must be shown, as the basis of relief in a case of this character. It may be that it is enough to show that the patent was obtained in violation of the law; possibly it may be necessary to show some actual damage, but these questions may be better determined upon the final hearing of this case than they can be now upon this demurrer, and I do not propose to pass upon them any further than I have already indicated.

The demurrer to the bill is overruled.

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McCrarV, Circuit Judge

(orally).

In the case of the United States against The Marshall Silver Mining Company and others, I have considered the demurrer to the bill. The bill charges, at very considerable length, a [562]*562conspiracy between defendants and certain Land Officers to change the boundaries of a claim for a patent, and to do this fraudulently for the purpose of extending one claim over the lines of another, and thus secure a patent to the defendant here, the Marshall Silver Mining Company, for certain mining property which was in equity the property of McClellan, Webster and Rist, who also had their application pending. Numerous acts and several rulings of the Land Officers are charged specifically in the bill as having been wrongful and fraudulent, as having been done and made in pursuance of the general conspiracy to perpetrate a fraud upon the United States, and also upon McClellan, Webster and Rist. I will not take the time to repeat the allegations of the bill, or to go into any discussion upon them. It is sufficient for the present to say that, in my judgment, it charges conspiracy and fraud with sufficient certainty to require an answer. Whether the facts when fully developed will show a fraud upon the United States, or only upon McClellan and Webster, or whether it will show a fraud upon both, are questions we can better determine upon the proofs and on final hearing.

Andrew W. Brazee, District Attorney. Morrison & Fillius, for defendants.

They are questions of some importance, perhaps of some difficulty. It is probably not entirely settled as to how far, or to what extent, an injury to the Government must be shown, as the basis of relief in a case of this character. It may be that it is enough to show that the patent was obtained in violation of the law; possibly it may be necessary to show some actual damage, but these questions may be better determined upon the final hearing of this case than they can be now upon this demurrer, and I do not propose to pass upon them any further than I have already indicated.

The demurrer to the bill is overruled.

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Bluebook (online)

17 F. 108, 5 McCrary's Cir. Ct. Rpts 325, 3 Colo. L. Rep. 561, 1883 U.S. App. LEXIS 2231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marshall-silver-mining-co-circtdco-1883.