Transcript of Record — Silver King Coalition Mines Co. v. Conkling Mining Co.

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SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1920.

No. 158.

SILVER KING COALITION MINES COMPANY, PETITIONER,

v8.

CONKLING MINING COMPANY.

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE EIGHTH CIRCUIT.

INDEX.

Caption to transcript from U. 8. district court..............-..

Affidavit of Nicholas Treweek in the case of Nicholas Treweek

et cl. va. Silver King Coalition Mines Company et al. in

support of motion for an order to inspect and survey the

mining property of the Silver’ King Coalition Mines Company. 1 2

Order in the case of Nicholas Treweek ef al. vs. Silver King

Coalition Mines Company et al. granting survey, etc., of min-

ing property of Silver King Coalition Mines Company...... 5 5

Rene GER GE Gee cecenscceccocccecocceoscesvocess 6 6

Replication to amended answer.............-. 00+ seeeseeeeee 3 22

Stipulation in re certain pleadings................-+-eeeese0- 25 22

Order, December 16, 1911, granting leave to file amended an-

ainda bd deakigehd Hbds 6 HOCGTRERS COE TCC TEC 26 23

pegseveseoeeres 26 23

Opinion of district court, filed November 28, 1916, as to defend-

ant’s motion to reopen the case for the introduction of fur-

bwedeeevicevesuseeseemibesdseretoocececes 43

Jupp & Derwermere (Inc.), Parvrers, Wasnrveton, D. C.. Ocroper 13, 1920.

il INDEX.

Original.

Opinion of the district court, filed January 4, 1917, as to de-

fendant’s motion to reopen the case and plaintiff's motion for

a decree in accordance with the mandate of the U. 8. circuit

Opinion of the district court, filed February 27, 1918, as to

accounting .......... Souseeboooeseedsecoourereeceoeereseee

Decree of the district court, March 21, Pewedcevesecovovees

Stipulation as to the opinion of the district court, filed Febru-

ary 27, 1918, being made a part of the record..............

Order, April 17, 1918, making opinion filed February 27, 1918,

Statement GB GUIBMMEBc co cccccecccoese oe eee

Caption COE EEE EEE EEE EEE Hee

interlocutory decree of the district court, January 20, 1917.

Defendant's statement as to ore mined from Conkling

Data of development work done on the Conkling

ZSeS8e88R RF RR

Print.

82 8 £ 88 8 BSLESF & BK FE

—

-§

= ff

BES

SSESSRERE

Original. Print.

Letter, Thomas Kearns to Nicholas Treweek et al.,

eee. Gr Ee coccevecereceedvececeseceress 206, 174

Letter, N. Treweek et al. to Silver King Coalition

Mines Company, January 6, 1908.............. 206 175

Testimony of C. P. Brooks (recalled)................ 212 180

PD Gy Sn evecsesescerccetooere 213 181

SD i evececéenvetcecerzecees 214 182

Se De cceccesoventeevceocese 216 183

COD Bec occvvcccccovcvcesoece 217 1s4

SED Ts cccccovcccecviceececcees 218 1855

BD Gi ewevetorcere: cevecedseeevece 220 156

Excerpt of record showing time of witness as sta-

See GR Oe Becnsecccscccecercessessodese 220 187

ey Ge Ge icccerecccccowroteroreses 221 187

Stipulation as to defendant's statement of account. 222 188

Testimony of M. J. Dailey (recalled)................- 222 188

Oe 223 159

Bar} Mahoney.........-.----0ccececees 227 192

PE Ev ecocereceveccesoonceres 230 195

GD De rccccedesevocsctccesccceces 234 197

Se ee Gee ecovecccvceccescoseess 237 200

Pe Di nceccceeeodoucecsetes 241 204

Exhibit 47—Option agreement between D. P. Rohl-

fing and Belmont Mining Company and assign-

M. J. Dailey (recalied)................ an

SS Geececcorcveedsscseessvecsccceesceee 242 204

Testiosemy of J. Wi. GelvoleGeld....cccccccccccccccceee 244 206

Be Ge ecvcccescsecesvocccescce 248 208

James Toole (recalled)................ 2) 210

Ee 251 212

i We SE iveswcoscodercceéooevetes 24 214

Pe Se wousersecredotuctervened yori 215

SG ewscerccecacsevcesteoes 26) 219

Cornelius J. O'Neill (recalled).......... 261 220

Daniel McCann (recalled)............. 2A 222

C. P. Brooks (recailed)................ 264 222

ee Gy Gcccseccncrvcceecccess 267 225

Pe te Ge oaveesereerececccssores 269 226

BD Gree cccveveverecsovecavetocess 270 227

BO Ge sverscerasrececesevéveceees 21 227

M. J. Dailey (recalled) ........cccccces 272 228

C. P. Brooks (recaiied)................ 273 229

Certificate of assay of Exhibit 5@................ 275 20

Certificate of assay of Exhibit @0................ 276 21

Certificate of assay of Exhibit 61................ 276 231

Certificate of assay of Exhibit @2................ 276 232

Certificate of assay of Exhibit @................. 276 232

Testimony of J. B. Scholefield (recalled)............. 281 26

C. P. Deedes (recalls) ..cccccccccccece 29 242

243

PRRERRRARRGEEREE REE é gf R Rk & apes

Seri 5 2 A &§ 8&8 SeHe

Hil

reel rf

“ail aH

i's Exhitn poo a oe Sieeseeon:

Testimony of F. 3. Hansen ivecaiiog, os seen

P. Brooks PI orcccecccccccees

account of Silver King Coalition Mines Coss

dete GENER Wowk deme an Conbting ane

sseeesaged

ibd Littilitiitti ttt Te

#41

# 33592 gegee

fendant’s petition for leave to file an amended «tate

;

CCRT

tit

fof

Original. Print.

oo 869m

“— ww

— mM

“wh

“ wm

— i

72 8646

mm 45

“a 415,

mi 4%

wi 8646

“2 4%

a = «426

8 = 46

9% = 426

6426

426

Defendant's

INDEX.

Original.

Exhibit 7—Section MME ei av dcerdered ou 495

S—lection No. 3............... - 499

PPR OO Dolores cre cncccs 500

50-—flection No. 5................ 501

S3—flection We. G................ 502

SO I: Geos scecveivcs,. 508

18—Section No. 8................ 504

14—Section No. 9................ 505

15—Section No. 10.............. 506

16—Seetion No, 11.............. 507

17—Section No, 12.............. 508

18—Section No. 13............... 509

19—lection No. 14............... 510

20—Section No. 15............... 511

24—Sketch map of the Alliance

tunnel and workings from

the mouth to the west end..

Plaintiff's Exhibit 45—Map of Conkling claim and where

Defendant's EF

work was stopped in 1910 west

of the 135-foot line, except the

Columbia raise..................

46—Letter, Conkling Mining Company

to Silver King Coalition Mines

Company, November 30, 1908...

48—Final summary, subject to elimina-

tion of ore not from Conkling

OND ee rretris sianiendienes,.,

68—Extract of ore sales from the Sil-

ver King Coalition Mines Com-

pally during the period May 11,

1907, to March Si, 1016.........

70—Revord of crude ore sold by the

Kearns-Keith Mining Company

during May and June, 1907.....

xhibit 85—Map showing surface of what is

known as the Belmont Mining

Company’s ground, ete.......,

86—Extract of ore sales from Silver

King Coalition Mines Company

for October, November, and

December, 1906............._.

91—Report of James Humes, super-

intendent of the Silver King

Coalition Mines Company, for

ei el ee ER

92—Report of James Humes, super-

intendent of the Silver King

Coalition Mines Company, for

OF Fae Pies inivnuedecs ic

515

520

524

525

528

426

427

430

482

436

INDEX.

Original.

Defendant’s Exhibit 96—-Excerpt of shift bosses’ ore ex-

traction book of the Silver King

Coalition Mines Company (page

‘headed “Alliance First Class,

June 1 to December 31,

WEEE. Stibleswadwas. Hiwetees

87—Excerpt of shift bosses’ ore ex-

traction book of the Silver King

Coalition Mines Company (page

headed “Rock Drills’)........

100—Surface map of the Silver King

Coalition Mines Company.....

Plaintiff's Exhibit 116—Summary of cost analysis sheet

of Silver King Coalition Mines Company for 1915........

Plaintiff's Exhibit 117—Summary of cost analysis sheet of

Silver King Coalition Mines Company for 1914

Stipulation as to transcript of record................0005

Approval of statement of evidence, etc., by district judge...

Petition for appeal of the Silver King Coalition Mines Com-

EE © vate Ving ska be kas Dawes swe saae OUR ere atw ecto wwe

Assignment of errors on appeal of the Silver King Coalition

Dy MeN Sahay uate wd dpm Wise ew wm waew ooh Wiens 6 aye auewe

Order allowing appeal of the Silver King Coalition Mines Com-

NE ad eae sae aN aie des eee ew PR CONE Cate bern ce Sue

Supersedeas bond on appeal of the Silver King Coalition Mines

NEN Siro Wow é-dadsivcrnn die cele a aw oS ike eheacg ear a awe

Order enlarging time to file transcript.................0c000.

Stipulation for the transmission of certain original exhibits to

the U. S. circuit court of appeals.............. ccc cece ee eee

Precipe of the Silver King Coalition Mines Company for tran-

SNE Phe ede atow nace CRs neh d el AOA S cians eSeOEes cAwe eles

Additional preecipe of the Silver King Coalition Mines Company

ee I god Word een Se wis ow os Mn alsa ae vie oie oe are

Amended precipe of the Silver King Coalition Mines Company

Pe I seco ceicsy adie a hay eae 9 bo Vinineebia'e ale ee ow ead

Citation on appeal of the Silver King Coalition Mines Company

and admission of service

ee ed

538

Print.

INDEX TO No. 5190.

Original.

Petition for and order allowing appeal of the Conkling Mining

‘Company ......... ee Pee ee ee oie ‘ - 8

Assignment of errors on appeal of the Conkling Mining Com-

SO OEE ee aan junds eee rae 579

Bond on appeal of the Conkling Mining Company............ 581

Precipe of the Conkling Mining Company for transcript....... 582

Citation on appeal of the Conkling Mining Company and accept-

ance of service........ eT TPT Ee eT OO EEE 583

Clerk’s certificate to tramscript............. 0.00 cece ec eccccee 54

Appearance of counsel for appellant in cause No. 5188........ 586

Appearance of counsel for appellee in cause No, 5188.......... 586

Appearance of Mr. William D. McHugh as gounsel for appel-

Ne TRE UI TO, DD oo hdc cnd vcwecweesutevnesovsves oe. 586

Appearance of Mr. E. B. Critchlow. Mr. William W. Ray, Mr.

William J. Barrette, and Mr. William H. King as counsel

for appellant in cause No. 5190...............000.0005 race ~ ie

Appearance of counsel for appellee in cause No. 5190.......... DST

ee Mr: INE ico supa awn pac ode dw wae Seer wwrwevienonés 587

er A SUNN So sbi veers ews ncawed buwesodee0n en baewe 588

Opinion of U. 8S. circuit court of appeals............... 0000005 588

Decree of U. S. circuit court of appeals...............c0c cece G04

Petition for rehearing in cause No. 5188.............c0cceeece 607

Motion to send up additional parts of the record and affidavits

in support thereof in cause No. 5188...............cceceeee 629

Order denying petition for rehearing and motion for an order

requiring district court to send up additional parts of ree-

NEE ate Nrek dboue edind abd dedinee¥ cbse oun bua decode iden Me

Motion for stay of mandate..... Wine at cima ind Tes wale eb.e wna b 651

(Pree DEGGIE WARGO o.oo ia oso ooo vc cccdecvswcccssssdsacee “a 655

Additional supersedeas bond of Silver King Coalition Mines

COMIN: a5 Scares tvcdnos Liew en ee a ee eT eee 656

Precipe for transcript for Supreme Court on return to writ of

certiorari in Nos. 5188 and 5190..... Se ee ere 658

Order for substitution of exhibits and transmission of exhibits

to Supreme Court U. 8. on writ of certiorari................ 661

Writ of certiorari and clerk’s return.................-000000- 665

Clerk’s certificate to tramscript............cc cece ec cece ec ceeee

Print.

482

483

485

486

SILVER KING COALITION M. CO. V8. CONKLING M. CO.

a Pleas and proceedings in the United States Circuit Court

of Appeals for the Eighth Cireuit, at the December Term,

1918, of said Court, before the Honcrable Walter H. Sanborn and

the Honorable Kimbrough Stone, Circuit Judges, and the Honorable

James D. Elliott, District Judge.

Attest :

[Seal United States Circuit Court of Appeals, Eighth Circuit. ]

E. E. KOCH,

Clerk of the United States

Circuit Court of Appeals

for the Eighth Circuit.

Be it Remembered that heretofore transcripts of record pursuant

to appeals allowed by the District Court of the United States for

the District of Utah were filed in the office of the Clerk of the United

States Circuit Court of Appeals for the Eighth Circuit, in certain

causes wherein the Silver King Coalition Mines Company was

A pellant, and the Conkling Mining Company was Appellee, in

which cause the transcript of record was filed and docketed in said

Circuit Court of Appeals on June 26, 1918, as No. 5188, and also

wherein the Conkling Mining Company, a corporation, was Ap-

pellant, and the Silver King Coalition Mines Company was Ap-

pellee, in which cause the transcript of record was filed and docketed

on June 27, 1918, as No. 5190. Said transcripts as prepared and

printed under the rules of the United States Circuit Court of Appeals

for the Eighth Circuit, under the supervision of its Clerk, are in the

words and figures following, to-wit:

1 UNITED STATES OF AMERICA,

District of Utah, ss:

At a regular stated term of the District Court of the United

States for the District of Utah, in the Central Division thereof,

begun and held in the Court room in the Federal Building, at Salt

Lake City, on the 8th day of April, in the year of our Lord one

thousand nine hundred and eighteen and the one hundred and

forty-second of the Independence of the United States of America.

Present: Honorable Tillman D. Johnson, United States District

Judge for the District of Utah.

2 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

TRANSCRIPT OF THE RECORD.

In Equity.

No. 2125 (307).

ConkKiineG Mrixtne Company, a Corporation, Plaintiff,

vs.

Srtver Kixe Coarition Mixes Company, a Corporation, Defendant.

Affidavit of Nicholas Treweek

in support of a motion for an order to inspect and for a survey,

filed in the Cireuit Court of the United States for the District of

Utah on the Ist day of June, 1908, as follows, to-wit:

In the Cireuit Court of the United States, Eighth Cirenit, in and for

the District of Utah.

Nicnoias Treweek and J, Leonarp Burcu, Plaintiffs,

vs.

Sutver Krxe Coatition Mixes Company, a Corporation, and Jou»

M. Daveuerty, Defendants.

Nicholas Treweek, first being duly sworn deposes and says:

That he is if the age of 57 years and for 35 years past has been

and is a resident of Salt Lake City, Utah, and is one of the plaintiffs

in the above entitled action. That he is by profession and oceupa-

tion, a mining engineer and miner, and has had very large experi-

ence in his profession and business in vein, lode or ledge mining for

gold, silver and lead and other metals, and especially in the

2 Uintah Mining District, Summit County, Utah. That he is

now manager of and directing the development work of the

Wabash Mining Company’s mine in said District; and from time

to time in the last thirty years has been the manager of other large

and extensive mining enterprises in other places than said Uintah

Mining District. That the affiant is in charge of matters and things

pertaining to the prosecution of the above entitled action. That he

is one of the owners of the Arthur and Conkling lode mining claims

described in the complaint and the subject matter of the above en-

titled action, especially with the surface conditions and to some

extent the underground workings of the same made by the defendant

company or its predecessor in interest of the Alliance Tunnel in so

far as he has been permitted to examine and observe the same by the

Defendant Company.

That affiant is elso and for many years last past has been ac-

quainted with the mining claims of the Defendant Company in said

mining district adjoining and near by to said Conkling and Arthur

SILVER KING COALITION M. CO. V8. CONKLING M. CO. 3

mining claims in a general way and to some extent to the under-

ground workings therein in so far as permitted by Defendant Com-

pany to inspect and examine same. .

That the portion of the underground workings of said Arthur

and Conkling mining claims that he has been so permitted to in-

spect and examine, affiant is informed and believes is a small portion

of the underground workings of the said Arthur and Conkling min-

ing claims made by the Defendant Company or its predecessors.

That the Alliance Tunnel the affiant is informed and believes is

owned by the Defendant Company and that the Defendant Com-

pany or its predecessors in interest thereof has run same into and

underneath the surface and at great depth through the said Arthur

and Conkling mining claims and beyond the southwest end line of

the said Conkling claim and into and underneath the surface of

mining claims belonging to Defendant Company the distance of

which affiant does not know, and through said Alliance Tunnel has

mined, and is mining and intends to mine the ores in dispute in this

action within and underneath the surface of said Arthur and Conkling

mining claims; and also through which tunnel Defendant Com-

pany is mining and intends to mine and is transporting and intends

to transport the ores mined by it from the same ore body or same vein,

lode or ledge lying beneath the surface of said mining claims owned

by the defendant company, but that the defendant company

3 has refused and continues to refuse to the plaintiffs and the

affiant, further entrance into and upon said Alliance tunnel,

and has excluded and refused affiant admission thereto and will

not permit him or any one in the interest of the plaintiff to ap-

proach or inspect any portion of said tunnel that lies within about

135 feet northeasterly back towards the face of the tunnel from the

vertical plane drawn down vertically through the southwest end

line of the said Conkling mining claim, as called for in the field

notes of the patent survey therefor.

That the Defendant Company claims to be the owner of the

Walker and Walker Extension, Brave Columbia, Constitution, and

Cumberland lode mining claims, and that the vein, lode or ledge

upon which is deposited said ore body apexes within said Walker

and Walker Extension, Brave Columbia, Constitution, and Cumber-

land mining claims in such position that the Defendant Company

has extralateral rights thereto, that is, the right to follow same on its

dip into and underneath the surface of said Arthur and Conkling

mining claims, and to own, mine and remove ores therefrom lying

underneath and within the surface of said Arthur and Conkling

mining claims, and contained within vertical planes drawn down-

ward through the exterior boundaries of said Arthur and Conkling

mining claims.

The affiant further says that the issues in the foregoing action is,

where the true apex, strike or dip of said vein, lode, ledge or ore body

encountered by the Defendant Company or its predecessors in said

Alliance tunnel and underneath the surface of said Arthur and

Conkling mining claims and within vertical planes drawn downward

4 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

through the exterior boundary of said claims, and the ownership of

said vein, lode, ledge or ore body is to be determined.

the plaintiff nor affiant cannot from the examination that

been itted to make, determine the true ition of the

said vein, lode or ledge or said ore body, nor the true

| the same without being given unobstructed access to

said Alliance tunnel, to its ultimate end, and also all

drifts, winzes, ises, and stopes mac. from that of said tunnel

’ And also to that end it will be absolutely to exam-

ine and i the underground workings within said Walker and

strueted and that they or some one of them may or would likely en-

counter said vein a7 ledge on ite dip Uf euch vein, lode of lodes

in fact exists and did apex, strike and dip as claimed by defendant

The affiant further says that the veins, lodes or ledges or ore bodies

in place in the said Arthur and Conkling mining claims, and those of

the adjoining and adjacent mining claims of the defendant company

are covered and kept from view by loose earth, gravel and rock, com-

monly called wash, to the depth of so many feet that their apex or

apexes do not come to or reach the surface and therefore cannot be

discovered or traced on the surface, but must be done wholly from

examination and i jon in workings as they exist

in said mining claims of plaintiff those belonging to defendant

company as hereinbefore set forth.

Affiant further says that all information to be obtained and that

he desires to obtain by examination and inspection of the workings

are intended to and will be used only for the of ascertaining

the extent and condition of said veins, lodes, or or ore bodies

lying underneath the surface and within vertical drawn down

through the exterior boundary of said Arthur Conkling mining

claims, and to establish the rights of the plaintiff in the above en-

That all of said inspections and examinations can be made without

injury to defendant company.

Suet Gro Coming Sen, Hote of bates, opens of ene, os exp Ban

nel as disclosed in the said Alliance tunnel, has a slight dip from

Seiumeiting Gennae cquett dhadiem, anh b entices i

ing u rom, if it so continues it

would not within vertical planes drawn down through the ex-

terior heuniney of the defendant company’s said Walker and Walker

SILVER KING COALITION M. CO. VS. CONKLING M. Co. 5

Extension, Brave Columbia, Constitution and Cumberland mining

claims or either of them.

And it is also necessary in the poate that in making such

examinations and inspections to make such surveys of the same as

the plaintiff, or affiant, may think relevant and proper.

5 and which will aid in the determination of the isewes im «aid

action.

The affiant attaches to this his affidavit Exhibit (A) and as part

thereto a map showing the approximate relation of the «aid Arthur

Conkling Mining claims to and with said Walker and Walker Ex-

tension, Brave Columbia, Constitution and Cumberland mining

claims and other mining claims adjoining or adjacent and belong-

ing in part to defendant company, and also the proximate relation

of the said tunnels to said mining claims and the relative position

which they bear towards each other and also the position of the vein,

lide, ledge or deposit of ore in dispute in this action and lying

underneath the surface of said Conkling mining claim as herein-

before more particularly referred to.

NICHOLAS TREWEEK.

Subscribed and sworn to before me by Nicholas Treweek, this 2nd

day of June, 1908.

[SHALL | G. A. LAND,

Notary Public.

Service by copy admitted June 4, 1908,

Attorneys and of Counsel for the Defendant,

Silver King Coalition Mines Company.

Filed June 4, 1908.

JERROLD R. LETCHER,.

Clerk.

(Order Granting Inspection and Survey of Mining Property of Sil-

ver King Coalition Mines Company.)

Made, Filed and Entered in the Cireuit Court of the United States

for the District of Utah on the 30th Day of June, 1908,

Nicnouas Treweek and J. Leoxarp Burcu, Plaintiffs.

vs.

Sitver Kine Coarition Mines Company, a Corporation, and Joux

M. Davenerry, Defendants.

Motion of the plaintiffs in the above entitled action for surface and

underground inspection and survey coming on regularly to be heard

and all and singular upon the stipulation of the respective parties

to said action made in court.

It is hereby ordered the plaintiffs with their experts, agente,

and surveyors be and are hereby given the free and unmol-std right

SILVER KING COALITION M. CO. VS. CONKLING M. Co.

to enter upon and into the Hanauer tunnel, Etna tunnel and the

Apex tunnel ing to the defendant company, and also,

and into the Alliance tunnel which on its course

;

sheFE

deseri

named

SS aie ee ibed in answer of def

i ms to

defendant and to measure and determine the course and strike of

inconvenience to both by ~~ as circumstance will a.

Done in open court the 30th day of June, A. D. 1908.

J. A. sseoee

Filed June 30, 1908.

JERROLD R. LETCHER,

Clerk.

Amended Bill of Complaint.

(Filed in the U. 8. Circuit Court July 5, 1909.)

In Equity.

No. 307.

Coxkiixne Mixtxc Company, a Corporation, Complainant,

vs.

Strver Kine Coarition Mines Company, a Corporation, Defendant.

To the Honorable the Judges of the Circuit Court of the Unitett

States in and for the District of Utah:

The Conkli pe | Company, a corporation organized and

existing under the laws the State of Utah, and a citizen of the State

of Utah, by leave of this Court first had and obtained, files this, its

SILVER KING COALITION M. CO. VS. CONKuir” ™. Co. 7

Amended Bill of Complaint, against the Silver King Coalition

Mines ¥, a corporation organized and existing under

the laws of the State of Nevada, and a citizen of the State of

Nevada; and thereupon your orator respectfully represents and

alleges

‘

That on or about the seventeenth day of September, A. D. 1008

Nicholas Treweek and J. Leonard Burch, the original complainants

herein, caused your orator to be duly incorporated under the laws

of the State of Utah for the purpose and pursuit of mining.

That the capital stock of your orator was paid for upon the in-

corporation of ‘said company by a conveyance and transfer to vour

orator by said Nicholas Treweek and J. Leonard Burch of all their

right, tithe and interest (being an undivided three-fourths) in and

to the Conkling Lode Mining Claim, patented as U. 8. Lot No. 689,

and the Arthur Lode Mining Claim, patented as U. 8. Lot No. 690.

situated in the Uintah Mining District, County of Summit and State

-of Utah, and also by an assignment and transfer to vour orator of all

manner of actions and causes of actions, suits, duce, demands, con-

troversies and accounting of every kind and nature whatseever in

favor of said Nicholas Treweck and J. Leonard Burch against the

defendant herein.

That said defendant corporation was organized and incorporated

wonder the laws of the State of Nevada. on or about the month of

May, 1917, to consolidate and take over sundry mining claims and

ies, including the Kearns-Keith Mining Company and the

Silver King Mining Company, respectively corporations. which said

last-named companies theretofore and for a long time had Leen en-

gaged in the business of mining in the Mining District where said

Conkling and Arthur Lode Mining Claims are situated.

That in and by said consolidation and merger the defendant cor-

poration succeeded to the interest then and theretofore owned by

said Kearns-Keith Mining Company in and to said Conkling end

Arthur Lode Mining Claims, viz., an undivided one-fourth (1%)

interest therein.

That on or about the twenty-second day of September, 1903, said

Kearns-Keith Mining Company, predecessor in interest and grantor

of the defendant herein, became the owner of said undivided one-

fourth (14) interest in and to said Conkling and Arthur Lode

s Mining Claims, and ever since continued to be the owner

thereof until the same was transferred to and merged in the

defendant company as aforesaid, to wit, on or about the twenty-

ninth day of , 1907.

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LVER KING COALITION woo we PORKLING M. OH.

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HAAR a: . GEE

SILVER KINC COALITION M. CO. V8. CONKLING M. CO.

VL.

That under and beneath the surface and within the exterior

boundaries of each of said mining claims extended downward ver-

_ there is « lode or vein or rock in place, bearing silver, lead

valuable minerals, extending on its course or strike through

of said claims. That said mining claims and each of them

valuable for the ores and minerals therein contained.

VIL

That, as your orator is informed and believes, ever since the in-

ion of said defendant company the defendant herein has

been and still i in ion of said vein or lode, within the

premises hereinbefore ibed and all the ores and minerals therein,

working and developing the same and extracting said ores and

mi therefrom. Also upon information and belief, your orator

alleges that prior to the incorporation of the defendant as herein-

before alleged, ite said grantor and predecessor in interest,

11 the Kearns-Keith Mining Company was in possession of said

vein or lode and all the ores and minerals therein within the

planes aforesaid, working and developing the same and extracting

the ores and minerals therefrom.

That said defendant and said Kearns-Keith Mining Company

gained access to said Mining Claims and premises and said ores, be-

neath the surface and within the said boundaries of said mining

claims extended downward vertically, by means of extending certain

ay ee works situated upon other property, now owned by

the defendant and prior to the incorporation of the defendant com-

ca, owned by said Kearns-Keith Mining pny | and Silver

ing Mining Company, which were merged into the defendant

wn as hereinbefore alleged, and to which said underground

w your orator herein and its said grantors and predecessors in

interest have had no access or means of access, and from which

they have been, and your orator is and has been, excluded by said

defendant, except as permitted to enter by the order of the Court

herein, made on the 30th day of June, 1908.

VIII.

That, as your orator is informed and believes, the defendant

herein, since its said incorporation, and said Kearns-Keith Mining

Company, the grantor of said defendant, prior thereto, by means

of said underground works, have extracted large quantities of ore

from said Conkling and Arthur Lode Mining Claims within the

Hanes aforesaid. That the ores so extracted by the defendant and

its said grantor, said defendant ha- appropriated and converted to

its own use. That the value of said ores, so extracted by the defendant

and its said grantor, your orator is unable to specify with exactness,

SILVER KING COALITION M. CO. VS. CONKLING M. CO. ll

but upon information and belief alleges the same to exceed in value

the sum of one million dollars ($1,000,000.00).

IX.

Your orator further alleges that said grantors of your orator did,

prior to the commencement of this action, demand from said defend-

ant that it account to them, as tenants-in-conmmon with it in said

mining claims, for the ores and minerals by it and its said grantor

removed from said premises and disposed of, and for their just and

proper share of the value thereof. That said defendant company

failed and refused to give to said grantors of your orator any ae-

counting whatsoever for the ores or minerals by said defendant

company extracted and removed from said premises, or

12 to pay to them or either of them their just, or any, propor-

tion of the value thereof.

That after the incorporation of your orator, and after your ora-

tor succeeded to the rights and interests of said Nicholas Treweek

and J. Leonard Burch in and to said mining claims, and each of

them, to-wit, on or about the thirtieth day of November, 1908, your

orator demanded of said defendant an accounting as tenant-in-

common in and to said mining claims and for your orator’s just

proportion of the value of the ores mined from underneath the sur-

face of said Conkling and Arthur Lode Mining Claims between

planes drawn down vertically through the exterior boundaries of

said mining claims as herein described. That said defendant com-

pany has entirely ignored said demands and failed and neglected

to make answer thereto, except as hereinafter alleged, and refused

to let your orator into the possession of either of said mining claims.

or to in any manner account to or with your orator in the premises.

That the defendant asserts, pretends and claims as exclusive in-

terest (not as Tenant-in-common with your orator) in a portion of

said premises, to-wit, the southwest one hundred and thirty-five and

one-half (135.5) feet of said Conkling Lode Mining Claim. as here-

inbefore described, adverse to your orator, and to have exclusive

right and ownership of all the ores contained therein within planes

extended f tannin | vertically from the following described lines:

to-wit, bounded on the southwest by the southwest end line of said

Conkling claim as hereinbefore bounded and described, and on

the northeast by a line drawn parallel thereto and one hundred and

thirty-five and five tenths feet distant therefrom, and by the re-

spective side lines of said Conkling Mining Claim as hereinbefore

described ; and said defendant has given out in speech, and other-

wise, that it has the exclusive right to enter in and upon said: prem

ises and remove ore therefrom without accounting to your orator as

a tenant-in-common with it as aforesaid, because of its alleged owner-

ship of certain. overlapping and conflicting mining claims called

12 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

the Custer No. 2 and Silver Hill No. 4, and also because it asserts

that the boundaries of said Conkling Claim as described in the

patent thereof and herein, are not the proper boundaries thereof

to the extent of including the said southwest 135.5 feet of said Conk-

ling Claim as hereinbefore described and bounded.

13 That the alleged claims and pretenses of said defendant

are false and untrue, and unfounded in fact; also that by

reason of the facts herein alleged.the said defendant ought not

to be permitted to controvert and vary the location and boundary

of said Conkling Claim upon the ground as the same are described

in said patent and herein, or to assert an interest adverse to your

orator or otherwise, if at all, then as trustee holding the title of

said overlapping and conflicting Silver Hill No. 4 and Custer No.

2 Lode Mining Claims for the benefit of the defendant and your

orator as tenants-in-common in said Conkling Lode Mining Claim,

according to their respective interest therein as hereinbefore alleged.

That the description of the location of said Conkling Lode Mining

Claim, as described herein, is the same and identical description

as described in the patent and as patented. That in and by said

description contained in said patent, the location of the boundaries

of said Conkling Lode Mining Claim can be readily traced, ascer-

tained and determined upon the ground, all of which has, at all of

the times herein mentioned, been well known te said Kearns-Keith

Mining Company, and to the defendant herein, as your orator verily

believes. That ever since said Conkling Lode Mining Claim was

patented, the owners of said claim have never had any dispute or

contention over, or disturbance of their ownership and right of

possession of said Conkling Lode Mining Claim as described herein

and as located upon the ground by said description contained herein

and in said patent, or of or to any part or portion of said claim

until the wrongful acts and conduct of the defendant and its said

grantor, Kearns-Keith Mining Company, as co-tenant or tenants-in-

common with your orator and its grantors as herein alleged.

XI.

That the defendant herein and its said grantor Kearns-Keith

Mining Company, subsequent to said twenty-second day of Septem-

ber, 1903 the actual time of which your orator has no means of as-

certaining), as your orator is informed and believes, did secretly

extend a certain tunnel called the Alliance Tunnel through and

underneath said Conkling Lode Mining Claim from the Northeast

boundary of said claim to the southwest end boundary of said claim ;

also secretly drove a cross-cut extending from said Alliance Tunnel,

so extended underneath said Conkling Lode Mining Claim, to near

the southwest corner of said Conkling Lode Mining Claim as de-

scribed in said patent and herein. That said Alliance Tunnel at

the time of the incorporation of said Kearns-Keith Mining

14 Company did, not extend to the boundaries of said Conkling

Lode Mining Claim, or any part or portion thereof,*as your

orator is informed and believes. That said tunnel and cross-cut,

—

SILVER KING COALITION M. CO. VS. CONKLING M. CO, 13

so extended, are upwards of one thousand and three hundred (1,300)

feet in depth below the surface of said Conkling Lode Mining Claim.

That said secret openings so made underneath the surface and within

the boundary planes of said Conkling Lode Mining Claim extended

down vertically, can be entered through the main shaft of said Sil-

ver King Mining Company and the levels and drifts therefrom,

or through said Alliance Tunnel, only; that said shaft, drifts, levels

and said Alliance Tunnel are under the exclusive ownership and con-

trol of the defendant (except only as to the right reserved to Thomas

Kearns, and his assigns, to use said Alliance Tunnel) and prior to

said merger, during the time aforesaid were under the exclusive

ownership and control of said Silver King Mining Company, with

the right reserved to said Kearns or his assigns as aforesaid, which

said right, so reserved, upon information and belief, your orator

alleges said Kearns assigned and transferred to said Kearns-Keith

Mining Company upon its incorporation. That in so drifting and

extending said cross-cut from said tunnel, said defendant, and prior

to said merger, said Kearns-Keith Mining Company, secretly dis-

covered and explored a large and valuable ore deposit upon which

said Kearns-Keith Mining Company, prior to said merger, and said

defendant, subsequent thereto, secretly discovered and explored a

large and valuable ore deposit, upon which the said defendant and

its grantor have made extensive stoping and secretly removed there-

from ore of the value of not less than one million dollars ($1,000,-

000.00) as your orator is informed and believes.

XII.

That the description of the said Conkling Lode Mining Claim as

asserted and pretended to be by the defendant herein as aforesaid

is such that it is within the boundary planes of said Conkling Lode

Mining Claim, as described in the patent thereof as aforesaid. ex-

tended downward vertically, and principally within the boundary

planes extended downward vertically of said southwest 135.5 fect

of said Conkling Lode Mining Claim, as hereinbefore described,

that the principal part and value of said ore so secretly found and

discovered as aforesaid was and is contained.

That the value of said ores so found and discovered within the

planes extended downward vertically from the boundaries

15 of said southwest 135.5 foot strip of said Conkling Lode

Mining Claim, as hereinbefore described, is, as your orator

is informed and believes, not less than two million five hundred

thousand dollars ($2,500,000.00).

That all of the aforesaid secret underground work and discovery

of ore and removal of ore were intentionally and wrongfully kept

secret by the said defendant and by its grantor, the Kearns-Keith

Mining Company, from your orator’s grantors and predecessors in

interest, Nicholas Treweek and J. Leonard Burch, as your orator is

informed and believes, and unknown to them or either of them until

as hereinafter alleged. That on or about the month of April, 1907,

the then owners of the interest now owned by your orator in said

14 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

Conkling Lode Mining Claim, to-wit, said Nicholas Treweek and J.

Leonard Burch, became suspicious that there had been secret devel-

opments made in said Conkling and Arthur Lode Mining Claims by

the said Kearns-Keith Mining Company, and thereafter, after said

merger, applied to said defendant for admission to any underground

workings beneath the surface of said Conkling and Arthur Lode

Mining Claims; that said application was refused by the said de-

fendant. That thereafter, on or about the month of December,

1907, said Nicholas Treweek and J. Leonard Burch, as tenants-in-

common with the said defendant in said Conkling Lode Mining

Claim as aforesaid, demanded of said defendant an accounting for

their respective shares of the proceeds of any and all ores taken from

said Conkling and Arthur Lode Mining Claims; that said defendant,

in response to said demand, expressed great surprise at the demand

made upon it as aforesaid, and reminded said Nicholas Treweek and

J. Leonard Burch that the defendant was a co-tenant with them in

the ground they claimed, viz., the Conkling and Arthur Lode Min-

ing Claims, and also asserted that it had spent a great deal of money

in explorations, and claimed the right to remove and extract suf-

ficient ore, had there been any in the said Conkling and Arthur Lode

Mining Claims, to repay the said defendant for the money expended

in such explorations, before the said Nicholas Treweek and J. Leon-

ard Burch, as tenants-in-common with said defendant, could set up

any claim for an accounting. That in reference to the demand

made for the privilege of entering the workings for the purpose of

making an examination and survey, the defendant asserted and con-

tended that such demand, so made, was not with the hope of finding

the conditions in reference to the defendant having mined ore in

said Conkling and Arthur Lode Mining Claims, as suspected,

16 but charged some ulterior and improper purpose or motive in

said demand and request so made o said Treweek and Burch.

XIII.

Your orator further alleges that after the secret discovery by said

defendant and its grantor, Kearns-Keith Mining Co., of ore of great

value as aforesaid and within that portion of said Conkling Lode

Mining Claim hereinbefore referred to as the southwest 135.5 feet

thereof, and said Kearns-Keith Mining Company, the predecessor

in interest and grantor of the defendant herein, as aforesaid, prior

to the incorporation of the defendant, to-wit, in the years 1906 and

1907, made and caused to be made cunning efforts to purchase the

interest in said mining claims owned by said Treweek and said

Burch, representing that said interests were of no special value, and

offering to pay for said interest the sum of fifteen thousand dollars

($15,000.00) and no more. That the first suspicion said Treweek

and Burch had of the possibility of there having been underground

developments made in said Conkling and Arthur Lode Mining

Claims as aforesaid, arose after the last attempt of said Kearns-

Keith Mining Company to purchase their interest in said Conkling

and Arthur Lode Mining Claims for said sum of fifteen thousand

SILVER KING COALITION M. CO. VS. CONKLING M. CO. 15

dollars ($15,000.00), and after the purchase of said Custer No. 2

and Silver Hill No. 4 Mining Claims, as herein alleged.

XIV.

Your orator further alleges that after failing to purchase the in-

terest of said Treweek and Burch in said Conkling and Arthur Lode

Mining Claims are aforesaid, the defendant’s said grantor, Kearns-

Keith Mining Company, did thereafter and during tlie month of

April, 1907, purchase from the Belmont Mining Company, a corpo-

ration, for a consideration not exceeding one hundred fifty thousand

dollars ($150,000.00), as your orator is informed and believes, the

Custer No. 2 and the Silver Hill No. 4 Lode Mining Claims, then

owned by the said Belmont Mining Company, and took a convey-

ance for the same in the name of said Thomas Kearns, Trustee, who

was then the President or Manager of said Kearns-Keith Mining

Company. That upon the incorporation of the defendant herein

said Thomas Kearns, as Trustee, wrongfully conveyed the said min-

ing claims, and the whole thereof, exclusively to the defendant

herein. That said Custer No. 2 and Silver Hill No. 4 lode mining

claims, Survey No. 4850, were, by Letters Patent dated June

17 2, 1904, granted from the United States of America to the

Belmont Mining Company. That said Patent was based

upon location notices antedating the location of said Conkling lode

mining claim. That as patented, said Custer No. 2 and Silver Hill

No. 4 lode mining claims, overlap and include a large area of said

Conkling lode mining claim as patented and described in the patent

thereof and herein, including within said overlap all of the area of

said Conkling lode mining claim included within the southwest 135.5

foot strip thereof, except only a small area at the northwest corner of

said Conkling lode mining claim as herein described, and particu-

lariy included within said overlap, all that portion of said 135.5 foot

strip wherein said ore was discovered and contained as aforesaid.

That during all of the period aforesaid, while the said Treweek

and Burch and the said Kearns-Keith Mining Company were ten-

ants in common as aforesaid in said Arthur and Conkling lode min-

ing claims, the said Kearns-Keith Mining Company and said Tre-

week and Burch were as tenants in common as aforesaid, in the

actual possession of said claims and each of them, to the full extent

and area thereof as herein specifically described, including said south-

west 135.5 foot strip of said Conkling claim as herein described.

That said purchase from said Belmont Mining Company of said

Custer No. 2 and Silver Hill No. 4, was made as hereinbefore alleged

while said Kearns-Keith Mining Company and said Treweek and

Burch, as tenants-in-common, were in the possession as aforesaid of

said Arthur and Conkling claims, including all the aforesaid over-

lapping area thereof covered by said Custer No. 2 and Silver Hill

No. 4 lode mining claims. That at and prior to the time of the

purchase of said Custer No. 2 and Silver Hill No. 4 mining claims

as aforesaid, no ore had been found or developed within the said

ciaims or either of them as your orator is informed and believes. ex-

16 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

cept the aforesaid ore bodies developed prior to said purchase within

said area overlapping said Conkling mining claim as herein described

and as patented, and as then and during all the times prior thereto

while said Treweek and Burch and said Kearns-Keith Mining Com-

pany as tenants in common in said Conkling claim as aforesaid were

as such tenants in common and not otherwise, in the lawful and

actual possession thereof as part and parcel of said Conkling lode

mining claim.

That untii the purchase by the said Kearns-Keith Mining Com-

pany of the said Custer No. 2 and Silver Hill No. 4 lode min-

18 ing claims, neither the said defendant nor its said grantors

held or claimed any right or interest in or to the premises

described in the patent of said Conkling lode mining claim, or in or

to the lodes or veins within the boundary plan. ) thereof as described

in said patent, or in or to the southwest 135.5 foot strip, or in or to

the lodes or veins therein, except the right and interest held by the

said defendant and its grantor, the said Kearns-Keith Mining Com-

pany, as tenant in common with your orator and its predecessors in

title under the patent and grant from the United States of America

of the Conkling mining claim hereinbefore set forth; and after said

purchase neither the said Kearns-Keith Mining Company, nor the

defendant, made any independent claim nor any claim at all ad-

verse to your orator, or adverse to the said Treweek and Burch in or

to said premises or any part thereof until on or about the 11th day

of April, 1908.

That in the secret extension of said Alliance Tunnel as hereinbe-

fore set forth and continuously during the progress of said work, the

said defendant and its said grantor carried on said work, claiming

- to be so operating as tenants in common with your orator and your

orator’s predecessors in title, said ‘Treweek and Burch, and for the

discovery and development of ore within the exterior boundaries ex-

tended downward vertically of said Conkling mining claim, and

claimed of and from its co-tenants, payment and reimbursement out

of the ores developed in said Conkling mining claim for the cost and

expense incurred in said work. That while so ca ing on said work

as such tenant in common as aforesaid and while claiming to be

carrying on the same for the development of said properties so held

and claimed in common, and while claiming reimbursements, by

reason of said co-tenancy, out of the ores within said Conkling min-

ing claim for the cost and expense of extending said tunnel, the de-

fendant’s said grantor, the said Kearns-Keith Mining Company

secretly discovered said ore body within said 135.5 foot strip, and

fraudulently contriving to deprive its co-tenants of their just and

any proportion of the value of said ore, and contriving and intend-

ing to secure to the said defendant’s grantors, the benefit of the whole

thereof. the said Kearns-Keith Mining Company secretly and with-

out informing the orator’s predecessors in title of the discovery of

said ores, purchased as aforesaid said Custer No. 2 and Silver Hill

No. 4 mining claims, and thereafter held the same secretly, and

after developing the said ground and fully ascertaining the extent

SILVER KING COALITION M. CO. VS. CONKLING M. CO. 17

of said ore bodies and the vaiue of the ore contained therein,—

19 for the first time made known to your orator’s predecessors in

title that the said Kearns-Keith Mining Company claimed

adversely said 135.5 foot strip, and for the first time, pretended and

claimed that said 135.5 foot strip was not within the boundaries or

planes of said Conkling mining claim.

That said Kearns-Keith Mining Company secured title to said

Custer No. 2 and Silver Hill No. 4 mining claims by reason of its

possession of said premises under its claim thereto as tenant-in-com-

mon and under its claim that the same was part of the Conkling

mining claim, and purchased said Custer No. 2 and Silver Hill No.

4 mining claims because of its knowledge obtained while extending

said tunnel (and while so in possession as tenant in common with

your orator’s, predecessors in title) of the valuable ore body within

said 135.5 foot strip,—contriving and intending by means of such

adverse claims, to deprive your orator and its predecessors in title

of the ore discovered and partially extracted and sold by the said

Kearns-Keith Mining Company while in possession of said prop-

erty and of said 135.5 foot strip as tenant in common with your

orator’s predecessors in title, the said Treweek and Burch. That

the said pretensions of the said defendant that the boundaries of said

Conkling lode mining claim as described in the patent and herein

are not its true boundaries, but that the southwest 135.5 feet of said

Conkling lode mining claim, as the same is bounded and described

in the patent and herein, should not be included therein when located

upon the ground, constituted the first notice that said Treweek and

Burch, or either of them, ever had that any such claim, pretension

or contention existed, from any source whatsoever. That said claim

and assertion first came to the notice or knowledge of said Treweek

or Burch, or either of them, on or about the 11th day of April,

1908, as your orator is informed and believes.

XV.

Your orator further alleges that under and pursuant to an order

of this Honorable Court, made herein on the thirtieth day of June,

1908, permitting the then complainants herein, Nicholas Treweek

and J. Leonard Burch, with their experts, agents and surveyors, the

free and unmolested right to enter upon the aforesaid underground

workings for the purpose, among other things, of measuring and

determining the amount and value of the ore that had been mined

by the said defendant company underneath the surface of said

; Conkling and Arthur Lode Mining Claims, the said Treweek

20 and Burch were able for the first time to, and did, ascertain

the actual facts in respect to said secret underground workings

as aforesaid, underneath the surface boundaries of said Conkling Lode

Mining Claim as described in said patent and herein, within planes

extended downward vertically. and of the location of the ore body

within said Conkling Lode Mining Claim, and the character and

extent of the ore body developed therein, and of the importance

2—158

18 SILVER KING COALITION M. CO. V8. CONKLING M. CO.

and great value of said Conkling Lode Mining Claim, which is only

valuable for the ores therein contained.

XVI.

Your orator further alleges, upon information and belief, that

the said defendant herein since it succeeded to the interest of said

Kearns-Keith Mining Company in said Conkling Lode Mining

Claim as aforesaid, and the said Kearns-Keith Mining Company

prior thereto and subsequent to its purchase aforesaid, and while

said companies were ively as aforesaid tenants-in-common

with said Treweek and Burch in said Conkling and Arthur Lode

Mining Claims, and the discovery of ore therein and the extraction

and removal of ore from said Conkling Lode Mining Claim, for the

purpose of taking wrongful and undue advantage of said Treweek

and Burch, as co-tenants as aforesaid, endeavored to purchase their

said three-fourths interest therein for a trifling sum compared with

the actual value as then known exclusively to the said defendant

herein, and its said grantor, the Kearns-Keith Mining Company

XVIL.

Your orator further alleges upon information and belief, that

said overlapping — patented claims, to-wit, the Custer No. 2

and Silver Hill No. 4, were purchased as aforesaid without the

knowledge, acquiescence or consent of said Treweek and Burch, or

either of them, for the purpose and with the intention of defrauding

said Treweek and Burch, and your orator, as tenants-in-common

with the said defendant and its grantor, the Kearns-Keith Mining

Company, in said Conkling Lede Mining Claim as aforesaid, out of

their just and — = in the premises, and particularly from

that portion of said Conkling Lode Lining Claim wherein the prin-

cipal part and value of said ore, so secretly discovered as aforesaid, ix

contained. Also that the attempt on the part of the defendant

herein to describe and locate the said Conkling Lode Mining Claim

so as to exclude the southwest 135.5 feet thereof, as aforesaid, is made

with a like intention and purpose, as your orator is informed

21 and believes. That neither your orator, nor its said grantors,

Nicholas Treweek and J. Leonard Burch, were ever notified

by said defendant or its grantor, Kearns-Keith Mining Company, as

it and they were in duty bound to do, of said purchase of said Custer

No. 2 and Silver Hill No. 4 Mining Claims, or permitted to partici-

pate in said hase. That ever since said purchase of said Custer

No. 2 and Silver Hill No. 4 Claims as aforesaid, your orator since its

incorporation has been, and prior thereto said Treweek and Burch

were, and your orator still is, ready, able and willing to pay and

contribute to the defendant for its proper share and proportion,

to-wit, three-fourths (%4) of the purchase price paid to said Belmont

Mining Company for said claims, or such other or further sum as to

Your Honors may seem meet; and here and now offers to pay the

same as this Honorable Court. may direct. That by reason of said

SILVER KING COALITION M. CO. VS. CONKLING M. Co. 19

purchase of said claims said defendant, your orator is, and its

grantors have been, greatly and wrongfully prejudiced as tenants-

in-common as aforesaid with said defendant and its said grantor in

said Conkling Lode Mining Claim.

XVIL.

And your orator further shows and alleges that the survey of

said Conkling Lode Mining Claim purports to have been moe in

November of the year 1889 by Adolph Jesson, now deceased, then

Deputy United States Mineral Surveyor; that all other persons con-

nected with the making of said survey of said Conkling Lode Mining

Claim are either dead or their whereabouts unknown, as plaintiff is

informed and believes; that said Conkling Lode Mining Claim is

situated in a rough country, at a high altitude: that the surface is

covered in part with large trees and thickets of brush and under-

growth; that the yearly snowfall in the winter is very great; that

none of the original marks and boundaries of said Conkling Lode

Mining Claim referred to in said patent are now standing; that the

original place where the respective corners were marked, if marked

at all, is now only a matter of speculation. That the defendant herein

has upwards of forty (40) miles of underground workings, as

your orator is informed and believes, which have been made by it

and the companies which it succeeded, as hereinbefore alleged, and

thereby its has, and they were enabled to secretly explore and de-

termine the course, strike and dip of the mineral bearing veins and

lodes, including the territory wherein the said Conkling Lode Min-

ing Claim is situated; and with such knowledge and information,

so gained, the said defendant and the said parties to which it suc-

as aforesaid have, as your grantor is informed and believes,

since secretly discovering said ore deposits, been secret!

22 scheming and designing ways and means, by the snthelb

hereinbefore alleged and otherwise, to attempt to secure to the

defendant exclusively, the said southwest 135.5 feet of said Conkling

Lode Mining Claim, as described in said patent and herein, without

informing your orator, or its predecessors in interest, as tenants-in-

common in said Conkling Lode Mining Claim as hereinbefore alleged,

of any of its aforesaid secret acts, doings or intentions, thereby

leaving your orator, at this late date, entirely helpless in the premises

to meet the contentions now made by said defendant in reference to

the boundaries of said Conkling Lode Mining Claim being other

than as described in said patent and herein.

XIX.

And your orator further shows and alleges that the said defend-

ant’s duty, as tenant-in-conimon with your orator and its said prede-

cessors in interest in said Conkling Mining claim. was and is to

protect the entire extent and area of said claim, as described in the

patent thereof, and secure, if possible so to do, the entire area thereof,

as described in said patent, and not to destroy or defeat the same in

pal) SILVER KING COALITION M. CO. VS. CONKLING M. CO,

any manner or to any extent whatsoever, nor acquire or attempt

oo en ay eee interests in and to the ground as bounded

and in said patent and herein, or in or to the minerals

therein contained within planes bounded by the boundaries of said

Conkling and Arthur Lede Mining Claims, as described in said

patent and herein, extended downward vertically.

That neither the Government of the United nor any third

party, or party not interested in said Conkling Lode Mining Claim

as and described in the patent, does now dispute or con-

test, or ever has disputed or contested, to the best of your orators

knowledge, information and belief, the exterior ies of said

Conkling Lode Mining Claim as described in the patent and in this

Amended Bill of int herein.

In Consideration and forasmuch as your orator has no

sufficient remedy at law for the wrongs done and threatened to be

done, and that the remedy at law is i uate and can afford ne

protection to your orator against the un ul and wrongful claim

and assertions of said defendent, and the waste done and threatened

to be done for the reasons hereinbefore stated, and is only relievable in

a court of equity where matters of this kind are properly cognizable

and reviewable.

23 Your orator to the end that it may obtain the relief to

which it is justly entitled in the premises, Prays:

First: That the defendant show, if it can, why your orator should

not have the relief prayed, and make full disclosure and discovery

of all the matters aforesaid, and according to the best and utmost of

its remembrance, knowledge, information and belief, full, true, direct

and perfect answer make to the matters hereinbefore stated and

Gree te an Gale em, eee eal oD Des Se

waived.

Second: That the defendant be required to set forth any and every

adverse interest, claim or demand in and to the said above described

premises as herein specifically bounded and described, and to the

ores and minerals therein contained, to the end that the same may be

justly adjudicated and declared null and void as against your orator,

except only as to an undivided one-fourth (1%) interest therein as

tenant-in-common with your orator; and that the title and owner-

= of your orator to an undivided three-fourths (%4) interest in

id Conkling and Arthur Lode Mining Claims, as specifically here-

intefore described, and to the ores and minerals contained therein

vertically beneath the surface boundaries thereof as hereinbefore

Jeccribed, be established and confirmed as against any and all claims

of the said defendant, and all cloud thereon forever removed:

Third: That an accounting be taken by and under the direction

and decree of this Honorable Court, and the amount, quality and

value of the ores and minerals removed by said defendant company

from said premises described as aforesaid be ascertained and de-

termined ; and that, upon such accounting being had and the value of

such ores ascertained and determined, your orator may be decreed to

SILVER KING COALITION M. co. V8. CONKLING M. co. 21

be the owner of three-fourths (%%) of the sum so ascertained, and

that the said defendant company be required to pay the same to

your orator.

Fourth: That your honors gramt unto vour orator your writ of

Injunction, commanding the said defendant. its servants. agents and

employees, and all persons under its authority, direction or control,

until the final determination of this action, to aleolutely desist and

refrain from eMering into or UPON any portion of said Conkling and

Arthur Lode Mining Claims as hereinbefore described. or cither of

them, and from working in or upon said wemises or beneath the

surface thereof, or taking an ¥ ores or minerals therefrom at any point

upon or beneath the surface of said premises herein described

24 extended down vertically; or, that your Honors in liew of an

injunction as prayed for a POIMt a receiver pending the final

determination of this action. and that such receiver be empowered

and authorized to enter into the Joint or common possession of said

Conkling and Arthur Lode Mining Claims, as they are bounded and

described in this Amended Bill of Complaint, with the defendant

company, and said receiver and said defendant cOnpany continue the

further mining and disposing of the ores now developed and that

may hereafter be found and developed Iving underneath the surface

of said Conkling and Arthur Lode Mining Claims, and confined he.

tween the vertical planes drawn down through the exterior bhounda-

ries of said mining claims as hereinbefore deseribed under such suit-

able provisions as your Honors may deem best.

Fifth. That the said defendant be adjudged and decreed to have

purchased and to hold the said Custer No. 2 and Silver Hill No. 4

Mining Claims in trust for your orator and said defendant as tenante-

in-common in said Conkling and Arthur Lode Mining Claims, ae-

cording to their respective shares. viz, an undivided three-fourths

(44) interest for your orator and an undivided metourth (14)

interest for said defendant.

And For Such Other And Further Relief as the equity of the case

may require, and as to your Honors may seem meet. and for it« costs

of suit in this behalf wrongfully expended.

CHARLES ©. DEY &

A.C. HOPPAUGH.,

Solicitors for | Complai.|

Usirep SvaTes or AMERICA,

District of Utah,

County of Salt Lake. ss:

4. Leonard Burch, being duly sworn, deposes and save: That he

is an officer of the complainant herein, Conkling Mining Company,

to-wit: the treasurer thereof: that he has read the above and fore-

going amended bill of complaint, and knows the comtents thereof;

that the same is true of his own knowledge, except as to matters

believes it to be true.

) J. LEONARD BURCH.

SILVER KING COALITION M CO. V8. CONKLING M. ©O.

Subscribed and sworn to before me this 2%h day of June

( Replication to Amended Answer )

Hin

astit

hy:

s3:s

ink

his 33

‘i

(Stipulation In re Certain Pleadings |

WILLIAM KING,

Attorne ‘ inant

DICKSON "fie ti LIS &

SCHULDER

A ttorne yx for Defendant

Dated this — day of December, 1911.

Filed Dee. 16, 1911.

JEROLD BR. ee ©

(Order, December V6. 1911, Granting Leave to File Amended An-

ewer. ete.)

At this day, on motion of W. H. Dickson, solicitor for defendant,

snd pursuant to the stipulation filed herein, it ix ordered tha uk’

frnddamt have leave to file an amended anewer henin ond that ac

reply of the complainant to the anewer now om file be treated and

considered as a ¥ to said amended answer, and that the veri-

fieation to said y be treated and considered as the verification of

the reply to said amended answer

(Amended Anawer to Amended Bill of Complaint )

This defendant, now and at all times hereafter. saving te tt=elf all

Fe had or taka,“ benefit of exception or etherwine that can ar may

ented as US. Lot No. G89. and the Arthur Lode Mining Claim: pat-

ted a TS No m0 he Uintah Mining District.

24 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

complainant corporation was paid for upon the incorporation of said

company by the conveyance of said above named mining claim, or

any interests therein, and by the assignment mentioned in said com-

laint, this defendant has no knowledge or information thereof, and

eaves said complainant to make such proof thereof as it may be ad-

vised.

This defendant admits that it is a corporation, organized and in-

corporated under the laws of the State of Nevada, on or about the

month of May, 1907, but denies that it was so organized for the pur-

of taking over the Kearns-Keith Mining Company or the Silver

ing Mining Company respectively, corporations.

This defendant admits that it succeeded to the interest theretofore

owned by said Kearns-Keith Mining Company in and to the Arthur

and Conkling Lode Mining Claims, and that such interest was an

undivided one-fourth interest therein.

Admits that on the 22nd day of September, 1903, the said Kearns-

Keith Mining Company was the owner of said undivided one-fourth

interest in and to said Conkling and Arthur Lode Mining Claims and

from thence continued to be the owner thereof until said Kearns-

Keith Mining Company conveyed and transferred said interest to

the defendant above named, which said conveyance or transfer was

made on, to-wit: the 31st day of May A. D. 1907, and not on the

29th day of May, 1907.

That as to whether or not one Nicholas Treweek was the owner

of an undivided one-half interest in and to each of said Conkling

and Arthur Lode Mining Claims, during all or any of the times that

said Kearns-Keith Mining Company was the owner of an undivided

one-fourth interest therein, this defendant has no knowledge or in-

formation thereof, and leaves said complain-t to make such proof

thereof as it may he so advised: and as to whether the said

28 Treweek, upon the transfer by said Kearns-Keith Mining

Company to the defendant herein was the owner of an un-

divide. one-half interest in said mining claims and each of them,

and from thence continued to be the owner of such interest in com-

mon until the transfer by him to the complainant herein, this de-

fendant has no knowledge or information thereof, and leaves said

complainant to make such proof as it mav be advised.

That as to whether or not the said J. Leonard Burch was the

owner, on or about the 16th dav of May, 1906, or ever was, at any

other time, the owner of an undivided one-fourth interest in and to

said Conkling and Arthur Lode Mining Claims, and that from

thence as such owner he became or was the tenant in common with

said Kearns-Keith Mining Company in said mining claims, or either

of them, until the transfer by said Kearns-Keith Mining Company

of its interest in and to said claims to the defendant herein, and that

since the time of said transfer he ever was a tenant in common with

the defendant herein to said claims, or either of them, until he trans-

ferred his interest to the complainant herein, this defendant has no

knowledge or information thereof, and therefore leaves said eom-

plainant to make such proof thereof as it may be advised.

This defendant admits that on or about the 23rd day of February,

SILVER KING COALITION M. CO, V8, CONKLING M. OO 25

1892, the United States of America, by its letters patent, granted

unto the Boss Mining Company, a corporation, those certain pret

ises called the Conkiing and Mee tals Mining Claims respec

tively, situated in the Uintah Mining District, County of Samumt

State of Utah, and that in said patent said Conklin Lode Mieme

Claim was particularly bounded and deseribed as in the Wh pare

graph of said amended bill of complaint set forth, and thet in amd

by the terms of said patent the said Arthur Lode Mining Chane «

particularly bounded and described as set forth in said Sth perenne

of said amended complaint, but this defendant alleges that the de

scription and boundaries of said claims as set forth in sid Hfh pare

graph of said amended bill of complaint, are net a tree oF commer

description of either of said mining clains as the seme are hewnded

and described and limited upon the ground by the permanent teen

ments, objects and bearing-trees found upon the growed. and alleoe

that the said Conkling Lode Mining Claim, U.S. Let Ne Oe) end

the Arthur Lode Mining Claim, U.S. Lot No. G00) ae the <amme ame

actually found upon the ground, are particularly deeerhed eed

- bounded as follows, to-wit:

29 Commencing at corner No, 2, the northeast commer of th

Conkling Claim and the northwest cormer of the \ethes

Claim, a common corner of said Conkling and Arthur Chetmee. free

which U. S. Mineral Monument No. 4 bears North 32 dee 32 mom

West 939.3 feet distant, thence from said cormer sooth Ol dee 2!

min. West 1364.5 feet to corner No, 3, the north weet eemmer of ead

Conkling Claim, thence south 21 deg, 08 min Past G0) feet te

corner No. 4, the southwest corner of said Conkling Chowne. theme

North 61 deg. 21 min, East 1364.5 feet to cormer Noo 1. the oth

east corner of said Conkling Claim. and aleo commer Ne ft ont the

southwest corner of said Arthur claim, and themes moth TH he

57 min. East 951.8 feet to corner No, 4, the southeast commer of the

Arthur Claim, thence North 21 deg. 09 min. Weet G00 feet te eee

No. 3, the northeast corner of said Arthur Claim, end themes Seah

76 deg. 57 min, West 951 foot to said oorler No ® the neorthwoet

corner of said Arthur Claim and the place of commencement of

surface bounds. The line of division between said minine chee

runs North 21 deg. and 9 min, West from said commen eormer No

1 to said common corner No, 2.

This defendant admits that beneath the surfece amd withue the

exterior boundaries, extended downwanl vertically. of each of ead

mining claims, there is a lode or vein of rock in place. hear ne eile

lead and other valuable minerals, which, on ite cour oF trl:

extends throughout the length of said clainas: amd adeite thet cool

mining claims and each of them are valuable only for the ems aed

minerals therein contained, but this defendant alleges thet me peer

or portion of the top or apex of the swid lode of veo ef peck os

place, found beneath the surface of the vid mime elevme. ae abe

admitted, is found anywhere within the exterior beams ea

tended downward vertically, of said claines, oF either of thew. bea

that the top or apex of said lode or vein, and the whede thee! «

found and contained within the surface boundaries extended dee

26 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

ward vertically, of certain other mining claims, owned and possessed

by this defendant, as hereinafter in this answer more particularly

alleged and described, which said other claims lie northerly from

said Conkling and said Arthur Mining claims.

This defendant denies that ever since the incorporation of this

defendant, it has been, or still is, or ever was, in the possession of

the vein or lode described in the amended complaint herein, as

within or beneath the boundaries of either the said Conkling or

Arthur Lode Mining Claims, or all or any of the ores or minerals

therein except as hereinafter alleged; and denies that it is.

30 or has been, since the incorporation of said defendant, work-

ing or developing any vein or lode within the boundaries of

said Conkling and Arthur Lode Mining Claims, extended downward

vertically, or is, or ever has been, extracting any ores or minerals

therefrom, except that from the vein or lode so apexing as aforesaid

in other mining claims owned by this defendant it extracted from

beneath the surface of the said Conkling Lode Mining Claim not

to exceed 990 tons of ore, of all grades or classes. And this defend-

ant alleges that the value of all the ore hitherto mined by this de-

fendant from within the surface boundaries, extended dawnward

vertically, of the said Conkling Mining Claim, after deducting there-

from the reasonable and necessary cost and expense of mining and

disposing of said ores, does nov exceed the sum of 20,047.50. And

this defendant further alleges that the reasonable and necessary

cost and expense incurred by it in the discovery and development

of all ores hitherto mined or removed by it from within the exterior

boundaries, extended downward vertically, or the said Conkling

mining Claim, exceeds the sum of 72,500. And this defendant

further alleges that it has not, at any time hitherto, mined or ex-

tracted any ores whatever from within the exterior boundaries, ex-

tended downward vertically, of the said Arthur Lode Mining Claim.

And this defendant denies that the said Kearns-Keith Mining Com-

pany, ever, at any time, was in possession of said vein or lode. or

all or any of the ores or minerals therein, within or beneath the

surface of either the said Conkling or the Arthur Lode Mining

Claims, and denies that it ever was working or developing the same,

or extracting any ores or minerals therefrom whatever.

This defendant admits that it and said Kearns Keith Mining

Company gained access to said mining claims, beneath the surface

thereof, and within the exterior boundaries thereof extended down-

ward vertically, by means of certain underground works situated

upon other property, then and now owned by this defendant and

its predecessors in interest; but this defendant denies that said eom-

plainant is, or that it has been. or that any of its predecessors in

interest have been excluded by this defendant from access to any

of the workings of this defendant, on or beneath the surface of

either the said Conkling or the said Arthur Mining Claims. And

this defendant denies that it has, since its incorporation, or that

said Kearns Keith Mining Company, grantor of said defendant,

has extracted large or any quantities of ore from said Conkling or

———

SILVER KING COALITION M. CO. VS. CONKLING M. CO. 27

said Arthur Lode Mining Claims, except as hereinbefore ad-

31 mitted; and denies that the ores so extracted by said defend-

ant from beneath the surface of said Conkling Mining Claim,

as hereinbefore admitted, exceed the sum of one million dollars, or

any other sum whatever, except $20,047.50; and this defendant al-

leges, as it has hereinbefore alleged, that the reasonable and neces-

sary cost and expense incurred by it in the discovery and develop-

ment of all said ores, so heretofore mined by it from within the

exterior boundaries extended downward vertically, of the said Conk-

ling Claim, exceeds the sum of $72,500. And this defendant denies

that the grantors of said complainant, prior to the commencement

of this action, did demand from said defendant, that it account to

them, tenants in common, with it of said mining claims, of the

ores and minerals by it and its grantors removed from said prem-

ises and disposed of, or for their just and proper share or value

thereof; but admits that said complainant and its predecessors did

demand that said defendant account to them for ores and minerals

taken and removed by said defendant from property and premises

in which neither said complainant nor any of its predecessors in

interest ever, at any time, had any estate, right, title or interest what-

ever. And this defendant admits that after the incorporation of

said complainant and after it succeeded to the rights and interests

of said Nicholas Treweek and J. Leonard Burch in and to the

said Conkling and Arthur Mining Claims, it did, on or about the

30th day of November, 1907, demand an accounting by this de-

fendant for the value of the ores mined by it from ben-ath the sur-

face of the said Conkling Mining Claim.

Admits that said defendant company has entirely ignored said

demand and refused and neglected to make answer thereto, and

refused to account to said complainant for the value of the ores

by it mined or removed from beneath the surface of said Conkling

Lode Mining Claim, and this defendant alleges that it was not. at

said time, and never has been, obligated to account to said complain-

ant, or any of its predecessors in interest for any ores mined or

extracted by it from beneath the surface of the said Conkling Lode

Mining Claim, or any other mining claim then owned, held or

possessed by said complainant, or any of its predecessors in interest.

This defendant admits that it asserts, pretends and claims an

exclusive interest, not as tenant in common with the complainant

herein, in and to the southwest 135.5 feet of the premises attempted

to be described in said amended complaint as a part and portion

of the said Conkling Lode Mining Claim, adverse to said com-

plainant, and admits that it claims and asserts that it has

32 the exclusive right and ownership of all the ores contained

therein, within planes extended downward vertically from

the lines described in the tenth paragraph of said amended bill of

complaint, and admits that said defendant has given out in speech

and otherwise that it has the exclusive right to enter in and upon

said premises and remove therefrom, without accounting to said

[complain-t] as a tenant in common with it, as aforesaid, or other-

wise, because of its ownership of the said premises in which said ores

28 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

and minerals are contained; and admits that it asserts that the

boundaries of the said Conkling Mining Claim, as described in said

amended complaint herein, are not the proper boundaries thereof,

to the extent of including the said 135.5 feet, alleged by said com-

plainant to be embraced within the boundaries of said Conkling

Mining Claim; but this defendant denies that any part or portion

of said 135.5 feet, so owned by this defendant as aferesaid, belongs

to or is embraced within the said Conkling Lode Mining Claim,

and denies that the Custer No. 2 and Silver Hill No. 4 Lode Mining

Claims, mentioned in said tenth paragraph of said complaint, so

far as said 135.5 feet are concerned, overlap or conflict at all with

said Conkling Lode Mining Claim, and this defendant denies that

its claims and pretensions as to the ownership of said 135.5 feet

are false or untrue or unfounded in fact; and denies that by reason

of any of the facts alleged in said amended bill of complaint, said

defendant ought not to be permitted to vary the location or bound-

aries of the said Conkling Lode Mining Claim upon the grownd,

as the same are described in said amended bill of complaint, or to

assert an interest adverse to said complainant in and to said 135.5

feet; and denies that said defendant should be held as trustee of

the title of any part or portion of said Custer No. 2 or the Silver

Hill No. 4 Lode Mining Claims, for the benefit of said complain-

ant, as a tenant in common with said defendant. or otherwise, or

at all.

This defendant denies that the description of the location of said

Conkling Mining Claim, as described in said amended bill, is the

same or identical description, as described in the patent and as pat-

ented, and on the contrary this defendant alleges that the true de-

scription of said Conkling Lode Mining Claim, is as appears from

the patent and the field notes, which are a part thereof, and the

return of the surveyor making the said survey of the said Conkling

Lode Mining Claim; that a true and correct description of said

Conkling Lode Mining Claim is as hereinbefore in this answer set

forth; and this defendant denies that in and by the deserip-

33 tion contained in said amended bill of complaint, the loca-

tion of the boundaries of said Conkling Lode Mining Claim

can be readily or at all traced, ascertained or determined upon the

ground, and denies that said or any alleged tracing. from the de-

scription set forth in said amended complaint of said Conkling Lode

Mining Claim, at all or any of the times mentioned in said amended

bill of compalint, was well or at all known to said Kearns Keith

Mining Company, or to this defendant, or to any other person or

persons whomsoever, and this defendant admits that ever since said

Conkling Mining Claim was patented, the owners of said claim have

never had any disputes or contention over, or disturbance of their

ownership or right of possession of said Conkling Lode Mining

Claim, as the same is located upon the ground: but denies that the

said Conkling Lode Mining Claim is or ean be located upon the

ground as the same is described in said amended complaint herein.

and alleges that said Conkling Lode Mining Claim, as the same exists

upon the ground, as determined by the monuments, permanent ob-

SILVER KING COALITION M. CO. VS. CONKBING M. CO, 29

jects and bearing-trees called for in the filed notes of the survey of said

claim, em!-races the premises and none [others], as the same are de-

scribed hereinbefore in this answer. and do not include any part or

portion of said 135.5 feet, claimed by the complaint herein, and that

the said premises as described herein, exclusive of said 135.5 feet,

are the premises had and held Ly this defendant and its predecessors

in interest and the other owners of said claim, as tenants in common

with this defendant and its predecessors in interest, without dispute

or contention, and that no contention as to the locus of said Conk-

ling Lode Mining Claim was ever at any time made or communicated

to this defendant, or any of its predecessors in interest. until the

filing of the complaint in this action and the alleged description

thereof, as set forth in said complaint, and denies that this defend-

ant has been, guilty of any wrongful acts or conduct whatever, or

that its grantor and predecessor in interest, Kearns Keith Mining

Company, has been guilty of any wrongful act or conduct what-

ever. And this defendant denics that it or its predecessor in in-

terest, the Kerns Keith Mining Company, or any other person

Wwhomsoever, at any time whatever, either before or after the 22nd

day of September. 1903, extended secretly the Alliance Tunnel,

or any other workings through or underneath the Conkling Lode

Mining Claim, as alleged in said complaint or otherwise, or that

they, or either of them. secretly drove any cross-cut or other

34 working from said Allianee Tunnel, or otherwise. to or

near the southwest corner of said Conkling Lode Mining

Claim, as the same js described in said patent, or in said amended

complaint.

This defendant admits that the openings underneath the surface

and within the boundary planes of the Conkling Lode Mining Claim,

extended downward vertically, can be entered through the main shaft

of the Silver King Mining Company, and from the levels and drifts

therefrom, or through said Allianee ‘Tunnel, and that said shaft,

drifts, levels and said Alliance Tunnel are under the exclusive con-

trol and ownership of the defendant, and were under the exclusive

ownership and control of the said Silver King Mining Company,

with the reserved right in said Thomas Kearns, as alleged in said

amended complaint, until the incorporation of the Kearns Keith

Mining Company. And this defendant denies that in drifting and

extending the cross-cut from said Alliance Tunnel. and prior to the

conveyance by said Kearns Keith Mining Company, the said Kearns

Keith Mining Company secretly discovered or explored a large or

any Valuable ore deposit. And denies that this defendant, or its

said grantor, have made extensive or any stoping, or secretly removed

from any part or portion of said Conkling Lode Mining Claim ore

of the value of $1,000,000, or any other sum, except the sum of

20,047.50, as hereinbefore in this answer alleged. And this defend-

ant denies that the description of the said Conkling Lode Mining

Claim, as asserted and claimed by this defendant herein, is such that

it is within the boundary planes of the said Conkling Lode Mining

Claim, as alleged to be deseribed in the patent thereof, extended

downward vertically, and denies that the 135.5 feet, claimed by said

30 SILVER KING COALITION M. CO. V8. CONKLING M. CO.

complainant in said amended bill of complaint to be part and parcel

of said Conkling Lode Mining Claim is any part or portion thereof,

or belongs thereto, or that said complainant, or any of its predecessors

in interest, have any estate, right, title or interest in or to any part or

portion of said 135.5 feet, or in or to any part or portion of P anphed

or minerals therein contained, vertically beneath the surface thereof.

And this defendant dénies that the value of the ores found or dis-

covered within the planes extended downward vertically of said

[135.5] foot strip is not less than the sum of $2,500.00, or of any

greater value than the sum of $52,681.00. And this defendant

denies that all or any of the underground work or discovery of ore.

or removal of ore, by it, was intentionally or wrongfully or at all

kept secret by this defendant, or its predecessors in interest from said

complainant, or any of its predecessors in interest, Nicholas Treweek

or J, Leonard Burch, or any other person, And this defend-

35 ant alleges that as to what suspicions the predecessors in in-

terest. of said complainant had, this defendant has no knowl-

edge or information thereof, and leaves said complainant to make

proof as it may be advised. And this defendant denies that it re-

fused permission to said predecessors in interest of said complainant

to inspect the underground workings beneath the surface of the said

Conkling and Arthur Mining Claims, and_this defendant admits

that on or about the month of December, 1907, the said Nicholas

Treweek and J. Leonard Burch demanded of this defendant an

accounting for the proceeds of any or all ores taken from said

Conkling and Arthur Lode Mining Claims, but this defendant denies

that this defendant expressed great or any surprise at any demand

which said Treweek or said Burch might make upon it for ores

mined by it from its property, and admits that it in ormed the said

Treweek and Burch that it had spent a great deal of money in ex-

ploration and claimed the right to remove and extract sufficient ore

to repay it for the money expended in such explorations before said

Nicholas Treweek and said J. Leonard Burch, or either of them,

would be entitled to have or receive, as tenants in common with said

defendant, any accounting whatever from said defendant.

This defendant denies that the said Kearns Keith Mining Com-

pany at any time after the discovery of ore, as alleged in the thir-

teenth paragraph of said amended bill of complaint, or otherwise, or

at all, made or caused to be made cunning or any efforts to purchase

the interests in said mining claims owned by said Treweek and said

Burch, or either of them, or that said Kearns Keith Mining Com-

pany, or any one on its behalf, represented that said interests were

of no special value, or that they offered to pay for said interests in

the sum of $15,000 and no more; but this defendant alleges that it is

a fact that the interest of said Treweek and said Burch at said time,

and of said complainant, in and to said Conkling and Arthur Lode

Mining Claims, was at said time, and is now of no great value, for

the reason that there has been discovered in and beneath the surface

of said mining claims no ores of any special or great value, and that

the ores which have been discovered therein belong to and are part

and parcel of a vein or lode having its apex in mining ground and

SILVER KING COALITION M. CU. V8. CONKLING M. CO. 31

premises owned, held and possessed by this defendant, since its

incorporation, and prior thereto, hy its predecessors in. interest, as

hereinafter particularly set forth and alleged, and as to when the

said Treweek and the said Burch first had any suspicion, as alleged

in the 13th paragraph of said complaint, this defendant has no

knowledge or information, and therefore leaves the said complainant

to make such proof thereof as it may be advised.

36 This defendant, answering paragraph numbered 14 of said

amended bill of complaint, denies that after any failure what-

ever, at any time whatever, to purchase any interest of said Treweek

and Burch, or either of them, in said Conkling and Arthur Lode

Mining Claims, as alleged in said amended bill of complaint, or

otherwise, or at all, the said Kearns Keith Mining Company did,

during the month of April, 1907, or at any other time, or at all,

purchase from the Belmont Mining Company, a corporation, for the

consideration named in said amended complaint, or any other con-

sideration whatever, the Custer No. 2 and the Silver Hill No. 4 Lode

Mining Claims, or either of them, then owned by said Belmont Min-

ing Company, or took a conveyance or the same, or either of them,

in the name of Thomas Kearns, trustee, or any other person whom-

svever, and denies that upon the incorporation of this defendant,

the said Thomas Kearns, as trustee, wrongfully conveyed the said

mining claims, or either of them, exclusively to the defendant

herein, and to the contrary this defendant alleges that on or about,

to-wit: the 6th day of April, 1907,-the said Thomas Kearns, individ-

ually, and for and on his own behalf, took and received an assign-

ment of an option theretofore given and granted by the Belmont

Mining Company to one D. P. Rohlfing, to purchase the said Custer

No. 2 and the said Silver Hill No. 4 Lode Mining Claims; that

thereafter and on or about the 10th day of April, 1907, the said

Thomas Kearns did offer to the Silver ‘ing Mining Company, a

corporation, to assign and transfer to it the said option to purchase,

*0 as aforesaid assigned to him, and on, to-wit: the said 10th day of

April, 1907, the said Silver King Mining Company did duly accept

the offer of the said Thomas Kearns, and did thereupon pay to the

‘aid Belmont Mining Company, the portion of the consideration to

he paid to it, pursuant to the terms of said option, and did there-

upon direct that the deed from said Belmont Mining Company

should be taken in the name of said Thomas Kearns, as trustee for

said Silver King Mining Company, to be conveyed by him to the

nominee of said Silver King Mining Company ; that on to-wit: the

12th day of April, 1907, the said Belmont Mining Company did

execute a deed of conveyance to said Custer No. 2 and Silver Hill No.

4 Lode Mining Claim, conveying the said claims and each of them

unto the said Thomas Kearns, trustee, and that thereafter and upon

the incorporation and organization of this defendant, and on, to-wit:

the — day of June, 1907, at the request and pursuant to the

agreement entered into by and between the said Thomas Kearns

and the said Silver King Mining Company, the said

oF Thomas Kearns did convey the said Custer No. 2 and the

said Silver Hill No. 4 Lode Mining Claims to this defendant,

SILVER KING COALITION M. CO. vs. CONKLING M. Co. 33

defendant denies that at the time of the purchase by said Thomas

Kearns, Trustee, of said Custer No. 2 and said Silber Hill No. 4

Lode Mining Claims, that any ore bodies whatever had been found

or discovered within any part or portion of said 135.5 foot strip.

and alleges that no ore was developed or found within said 135.5

foot strip until long after the purchase of said Custer No. 2 and

Silver Hill No. 4 Lode Mining Claims, and the conveyance thereof

to this defendant, as hereinbefore alleged, and denies, as it has here-

inbefore denied, that said Kearns Keith Mining Company and said

Treweek and said Burch ever were. at any time whatever, tenants

in common, the one with the other, in or to any part or portion of

said 135.5 foot strip, or in or to any of the ores or ore bodies therein

‘contained, and this defendant denies, as it has hereinbefore denied,

that said Kearns Keith Mining Company. ever, «’ any time whatever,

purchased said Custer No. 2 or said Silver Hill No. 4 Lode Mining

Claim, and admits that neither this defendant, nor any of its grantors,

held or claimed any right or interest in or to any part or portion of

said 135.5 foot strip until the purchase and conveyance to this

defendant of the same, as part and parcel of said Custer No. 2 and

Silver Hill No. 4 Lode Mining Claims. as hereinbefore alleged; but

this defendant denies that this defendant and its grantors and prede-

cessors in interest did not have any right, tithe or ownership in or

to the lodes or veins in «aid Conkling Lode Mining Claim, as here-

inbefore in this answer described. and in and te the ores and veins

in said 135.5 foot strip aforesaid.-part and parcel of said Custer No.

2 and said Silver Hill No. 4 Lode Mining Claim; and on the con-

trary this defendant alleges that it and its predecessors in interest,

at all times alleged and claimed that it and its predecessors in inter.

est were the owners of and entitled to all the ore bodies. veins and

lodes in and beneath the surface of the said Conkling Lode

34 Mining Claim and the said Arthur Lode Mining Claim and

said 135.5 foot strip, by reason of ite and its predecessors in

interest, ownership of the apex of the veins or lodex in which such

ore bodies found, as hereinafter in this answer specifically set

forth and alleged. And this defendant denies that either it, or any

of its predecessors in interest, have been. at any time whatever, or

now is, a tenant in common with «aid plaintiff or any of its prede-

cessors in interest of, in or to any part or portion of said 135.5

foot strip, or any of the ores found or contained therein. And this

defendant admits that said Kearns-Keith Mining Company never

made any independent claim. or any claim whatever, to any part or

portion of said 135.5 foot “trip, or any of the ores or minerals

therein contained ; but this defendant denies that it and its prede-

cessors in interest made no independent or other claim adverse to

said complainant, or any of its predecessors in interest, in or to said

135.5 foot strip, or any part thereof, until the 11th day of April,

1908, and on the contrary this defendant alleges that it and its prede-

cessors in interest have at all times since procuring the title to said

Custer No. 2 and Silver Hill No. 4 Lode Mining Claims, as aforesaid,

claimed and asserted title adverse to all the world. in and to said

135.5 foot strip and to all the ores and minerals, veins and lodes

3—158

OT interest, or for

ore within the exterior boun-

y, of said Conkling Mining

any payment or rein-

developed in’ said Conkling

ineurred in said work: and

that while carrying on any work whatever.

in common with said complainant, or any of its predesc.

sors in interest, or while claiming to be i on any work what-

ever for the development of vy i or claimed in com-

i i imi any reimburse-

ney ise, or at all,

ing Claim, for the cost

id 125.5 foot strip, or any part thereof. as any part or ion

of said Conkling Lode Mining Claim. And denies that said oo

SILVER KING COALITION M. CO. V8. CONKLIXG M. CO. 35

Keith Mining Company ever contrived or intended by any adverse

claim or assertion whatever, to deprive said complainant, or its

decessors in title, of any ores discovered in or beneath the surface of

said 135.5 foot strip: and denies that any ore was discovered in said

135.5 foot strip by said KearnsKeith Mining Company, or by any

other or corporation than this defendant, as hereinbefore

set forth and alleged. And this defendant denies that the claims and

assertions of this defendant that the boundaries a said Conkli

Lode Mining Claim, as the «ame are «et forth in said amended bill of

complaint, and in the patent to said Conklin Lode Mining Claim,

without reference to the field notes of the survey of said claim

41 (which form and are a part of said patent) are not its true

ies, and that the «aid 135.5 foot strip in said amended

complaint mentioned, should not be included in the said Conkling

Lode Mining Claim, when located upon the ground, constituted or

was the first notice that said Treweek and said Burch, or either of

them, ever had that any such Gaim or assertion existed from any

source whatever And on the comtrary this defendant alleges that

at all times, both said complainant and said Treweek and said Bureh

have had full and complete notice that the «aid 145.5 fot strip was ne

part or parcel of the said Conkling Lode Mining Claim, as the sane

was located upon the grownd, and never at any time made any

claim or contention that the said “trip Was any part or portion of

said Conkling Lode Mining Claim until just prior to the commence-

ment of this suit. |

Answering paragraph numbered 15 of said amended bill of com-

plaint, this defendant admits that the said Treweek and Burch did

ascertain the actual facts and the whole thereof with to the

underground works beneath the surface boundaries the said

Conkling Lode Mining Claim. and the character and extent of the

ore developed therein, and did ascertain the fact to be that no part

or = of the ores and minerals found and developed in the said

135.5 foot strip belonged to or was beneath any part or portion of the

said Conkling Lode Mining Claim. and did ascertain the fact that

all of the ores and minerals contained in said 125.5 foot strip, were

outside of and beyond the exterior boundaries of «aid Conkling Lode

Mining Claim.

Answering paragraph numbered 16 of said amended bill of cons-

plaint, this defendant deniex cach and every allegation therein con-

This defendant admits that the said Custer No. 2 and Silver Hill

No. 4 Lode Mining Claims were purchased by this defendant with-

out the knowledge, acquiescence or consent of said Treweek or Burch,

or either of them, but denies that «uch purchase was made for the

purpose, or with the intention of defrauding said Treweck or Bureh.

or said complainant in any way whatever, ax tenants in common

with this defendant, or its grantor, the Kearn=Keith Mining Com-

pany, or either said Conkling or said Arthur Lode Mining Claims,

or out of their just or proper rights in the premises, or otherwise. or

in Or to any part or portion of said Conkling Lode Mining Claim,

wherein any ores or minerals whatever, of any value whatever, have

MLVER KING COALITION M. OO. v8 CONKLING Mw. co.

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38 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

have ascertained and determined that the correct location of said

Conkling Lode Mining Claim, as the same exists upon the ground,

is as said claim is described in this answer, and not otherwise. And

this defendant denies that it was or is its duty, as tenants in common

with said complainant, or its predecessors in interest, or otherwise, to

secure the entire area described in the patent for said Conkling Lode

Mining Claim, without reference to the field notes and actual facts

as they exist upon the ground; and denies that it was or is the duty

of said defendant, or any of its predecessors in interest not to acquire,

or attempt to acquire, any interest in and to any ground or premises

not embraced within the said Conkling Lode Mining Claim, as the

same exists upon the ground, or not to acquire, or attempt to acquire,

any interest in or to any ground which might or could be embraced

within the alleged described boundaries of the Conkling Lode Min-

ing Claim, as set forth in the amended complaint herein; and on

the contrary this defendant alleges that it was its duty and that of

its predecessors in interest to attempt to ascertain the true and actual

boundaries of said Conkling Lode Mining Claim, as the same were

and are located upon the ground; and alleges in that behalf that it

has performed its full duty and has ascertained and determined that

the said Conkling Lode Mining Claim, as the same exists upon the

ground, is as set forth and described in this answer, and not other-

wise. And this defendant admits that neither the Government of

the United States, nor any third parties, or any person or

45 party whomsoever, except the complainant and its predeces-

sors in interest, does now dispute or contest, or ever has dis-

puted or contested the said Conkling Lode Mining Claim, as patented

and as the same is described in this answer. And this defendant al-

leges that the field notes of the survey of the said Conkling Lode

Mining Claim are part and parcel of the patent record thereof, and

that the said description contained in the said patent is controlled

by the field notes of the survey thereof, and by the monuments, posts,

permanent objects and bearing-trees found upon the ground; and this

defendant alleges that in case of anv conflict between the description

of the said Conkling Lode Mining Claim, as contained in the patent

thereof, and the description thereof as the same is located upon the

ground by permanent monuments, objects and other permanent ob-

jects, including bearing-trees and ties to other well known mining

claims, and reference in the field notes to the surveys of other min-

ing claims in the vicinity, that the description contained in the pat-

ent must give way to such field notes, ties, permanent objects, monu-

ments and bearing-trees.

Further answering said bill of complaint. this defendant alleges

that it is now, and continuously for more than four years and

seven months last past has been, the owner of, in the possession of

and entitled to the possession of certain lode mining claims, situated

in the Uintah Mining District, Summit County, State of Utah, known

as and called the “Pinyon and Pinvon Extension” Lode Mining

Claim, Lot No. 42, the “Boss” Lode Mining Claim, Lot No. 126, the

“Zephyr” Lode Mining Claim, Lot No. 459, the “Brave Columbia”

Lode Mining Claim, Lot No. 14, the “Constitution” Lode Mining

SILVER KING COALITION M. Co. V8. CONKLING 4. cw a

Claim, Lot No. 215, the “Cumberland” Lode Mining Clee. Lee

a 216, and the “Monroe Doctrine” Lede Mining Claim. Lee No

a. i

That the said Pinven and Pinyon Extension Minine Chew »

bounded and described as follows. to-wit

ginning at Post No. 1, and running thetee on « tree ems

magnetic variation, 17 deg. 20 min. Fast, Nowth St 2 om

West 200 feet to Post No 2; thence South 32 deg 23 een Woes

2809.4 feet to Post No. 3: thence South 54 deg (8) wim Pisce

IM4.1 feet to Post No. 4: thenee North 32 deg. 20 ein Bec oii

feet to Post No. 1, the place of beginning. Frew Puet Ne f Ueeed

States Mineral Monument No. 4 bewrs swith 43 dee O84 mem Woes

1393.1 feet distant.

That the said Boss Lode Mining Cains ix beaded aad dracetheal

as follows:

46 Beginning at Post Ne 1. and running them. on « tee

course, Magnetic variation, 17 deg. 20 mun Bact Seek ba

deg. 45 min, East 207.6 feet to Pat Ne 2. themes Seth GI dee 24

min, West T4811 feet to Poet No 3; themes Nowth 13 dew 40 seum

West 196.7 feet to Post Ne. 4: thence North (0) dee (0) sein Bigce

HIS1.2 feet to Post Neo 1. the place of beginning Pree Pace Xa f

U.S. Mineral Monument Ne 1 bourse North 59 dee 9S meee Woes

404.9 feet distant.

That the said Zephyr Lode Mining Choe & a Me ae

scribed as follows:

Beginning at Post No. 1, and running theme om « trae comme

magnetic variation, 17 deg. 20 win Eaet. Newth «= ae 4] com

East 567.8 feet to Post No. 2: thenes Swath 48 dee 22 sete Face

79.6 feet to Post Ne. 3. thence South @) dee 34 em Wee Sane

feet to Post No 4: thence North 44 dee Of min Weee 2% thet be

Post No. 1, the place of beginning Fran Pet Ne PE « Vee et

Monument No. 4 bears North 49 dew @5 mun Pie 1252.1 thee de

tant,

That the svid Brave Columbia Lek a ee a

and described as follows

Beginning at Post Neo 1. and running thee ie oe Ure women

magnetic Variation, 17 deg. 20 nin. Bet. Seah £2 oe ©8 em

West 206.9 feet to Poet Neo 2: themes South £5 dee S38 eee Blew

1428.2 feet to Post Ne. 3: themes Neeth 45 re OF ewin Piece are

feet to Post No. 4: themes North 2) dee. 32 min, Weer HOTT 1 bee &

Post No. 1, the place of beginning, From Poa Neo ft « re

Monument No. 4 bears North 80 dee 32 mein Fae PSO 8 Gos de

tant,

That the said Constitution Lede Minine Cheese ik heediel ~—

deseribed as follows

Reginning at Post No 1, and running theme on a Wises Heteobaw

magnetic variation, 17 deg. 20 min Bast, Seth £2 dee 55 seen

West 200.7 feet to Poet No 2: themee Seedy) i dee 12 wom Pew

1420.6 feet to Post Ne. 3. themes Newel a4 dre 25 ein Bar S05 2

feet to Post No. 4; thence North 44 dee DE) eae Wee 14266 tees

to Post No. 1, the place of beginning From Post No IU © Meee

40 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

Monument No. 4 bears North 87 deg. 05 min. East 2014.8 feet dis-

tant.

That the said Cumberland Lode Mining Claim is bounded and

described as follows:

Beginning at Post No. 1, and running thence on a true course,

magnetic variation, 17 deg. 20 min, East, South 45 deg. 07 min.

West 200 feet to Post No. 2; thence South 46 deg. 09 min.

47 East 1424.3 feet to Post No. 3; thence North 45 deg. 33 min.

fast 199.6 feet to Post No. 4; thence North 46 deg. 08 min.

West 1425.8 feet to Post No. 1, the place of beginning. From Post

No. 1 U. 8. Mineral Monument No. 4 bears North 85 deg. 16 min.

East 2216.6 feet distant.

That the said Monroe Doctrine Lode Mining Claim is bounded

and described as follows:

Beginning at Post No. 1, and running thence on a true course,

magnetic variation 17 deg. 20 min. East, South 45 deg. 25 min.

West 198.5 feet to Post No. 2; thence South 46 deg. 02 min. East

1419.9 feet to Post No. 3; thence North 45 deg. 48 min. East 199.9

feet to Post No, 4; thence North 46 deg. 05 min. West 1421.3 feet to

Post No. 1, the place of beginning. From Post No. 1 U.S. Mineral

Monument No. 4 bears North 88 deg. 35 min. East 2417.4 feet dis-

tant.

That each of said mining claims was long since patented to the

redecessors in interest of this defendant by the Government of the

Jnited States; that the patent for the said Pinyon and Pinyon Ex-

tension Mining Claim bears date October 18, 1873; that the patent.

for the said Boss Mining Claim bears date October 27, 1881; that the

tents for the said Brave Columbia, said Constitution, said Cumber-

and and said Monroe Doctrine Mining Claims each bears date March

81st, 1883, and that the patent for the said Zephyr Mining Claim

bears date June Ist, 1898.

That the said Pinyon and Pinyon Extension Mining Claim crosses

the said Boss Mining Claim, and the area in conflict between the two

was conveyed by said patent to the said Pinyon and Pinyon Ex-

tension Mining Claim,

That in said mining claims, so owned by this defendant, as afore-

said, there is a vein or lode of rock in place, bearing gold, silver,

lead and other valuable metals, which, on its course and at its apex,

crosses the casterly end line of the said Boss Mining Claim, and thence

on its course or strike and at its apex, traverses said claim in a

westerly direction for a distance of about 484 feet, where, at its apex

and on its course or strike, it crosses the southerly side line of the

said Pinyon and Pinyon Extension Mining Claim, and thence on its

course or strike and at its apex, traverses the said Pinyon and Pinyon

Extension Mining Claim in a westerly direction for a distance of

about 334 feet, where, at its apex and on its course it crosses the

opposite or northerly side line of the said Pinyon and Pinyon Ex-

tension Mining Claim, at which point, at its apex and on its

48 course or strike, it re-enters the said Boss Mining Claim, and

thence, at its apex and on its course and strike, traverses

said Boss Mining Claim in a westerly direction for a distance of about

SILVER KING COALITION M. CO. VS. CONKLING M. CO. 41

527 feet, where, at its apex and on its course or strike, it crosses the

northerly side line of the said Boss Mining Claim, to-wit, at a point

about 125 feet easterly of the northwesterly corner of the said Boss

Mining Claim, at which point, at its apex and on its course or strike,

it crosses the southerly side line of the said Zephyr Mining Claim, and

thence, at its apex and on its course or strike, it traverses in a westerly

direction the said Zephyr Mining Claim for a distance of about 57

feet, where it crosses the westerly end line of the said Zephyr Mining

Claim, at which point, at its apex and on its course or strike, it

crosses the located easterly side line of the said Brave Columbia Min-

ing Claim, and thence on its course westerly and at its apex, passes

to and across the westerly located side line of the said Brave Columbia,

and thence on its course or strike and at its apex traverses the said

Constitution Mining Claim, crossing both of the located side lines

thereof, and thence on its course or strike and at its apex traverses

the said Cumberland Mining Claim, crossing both of the located

side lines thereof, and thence on its course and strike at its apex,

it traverses the said Monroe Doctrine Mining Claim, erossing

both of the located side lines thereof.

That the location of the said Pinyon and Pinyon Extension Min-

ing Claim, and upon which said patent for said claim was issued,

as aforesaid, was made or laid upon a vein which crossed the located

side lines thereof, as was also the said Brave Columbia, the said Con-

stitution, the said Cumberland and the said Monroe Doctrine Mining

Claims,

That said vein dips in a southerly direction, and in its course

downward so far departs from a perpendicular that it passes beyond

the legal side lines extended downward vertically of each of said

mining claims, so owned by this defendant, as aforesaid, and thence

continuing on its dip or course downward, passes into, beneath and

beyond the exterior boundaries, extended downward vertically, of

the said Conkling Mining Claim, not only as the same is hereinbe-

fore in this answer described, but also as the same is deseribed in

said complainant's bill of complaint herein.

That this defendant is the owner, in the possession and entitled

to the possession, and it and its predecessors in interest, for

49 more than seven vears last past, have been the owners, in

the possession and entitled to the possession, throughout its

entire depth, of all that portion of said vein between the following

planes: first, one drawn through the easterly end line of the said

Boss Mining Claim, extended indefinitely in its own direction, and

another parallel thereto, drawn throueh the point where said vein,

at its apex and on its course, crosses the northerly side line of said

Boss Mining Claim, as aforesaid: and second, between planes, one

drawn through the located westerly side line of the said Monroe Doe-

trine Mining Claim, extended indefinitely in its own direction, and

another parallel thereto, drawn through the point where said vein,

at its apex and on its course crosses, as aforesaid, the southerly side

line of the said Zephyr Mining Claim.

That all of the ores at any time mined or removed by this de-

fe.dant, or any of its predecessors in interest, from beneath the sur-

42 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

face of the said Conkling Mining Claim, lay in and belonged to,

and were a part of, the said vein or lode so having its top or apex

in the said mining claims of this defendant, as aforesaid, and between

planes, one drawn through the easterly end line of the said Boss

Mining Claim, extended as aforesaid, and another through the

westerly located side line of the said Monroe Doctrine Mining Claim,

extended as aforesaid.

Wherefore, this defendant having fully answered, confessed,

traversed and avoided or denied, all the matters in the said amended

bill of complaint, material to be answered, according to its best

knowledge and belief, humbly prays this Honorable Court to

enter its decree that this defendant be hence dismissed with its

reasonable costs and charges in this behalf most wrongfully sus-

tained, and for such other and further relief in the premises as to

this Honorable Court may seem meet and in accordance with equity.

A. C, ELLIS,

A. C. ELLIS, Jr.,

RUSSELL G. SCHULDER,

Solicitors for Defendant.

W. H. DICKSON,

Of Counsel.

SILVER KING COALITION MINES

CO.,

[SEAL. ] By F. J. WESTCOTT,

Sec’y.

50 STATE OF UTAH,

County of Salt Lake, ss:

Frank J. Westcott being first duly sworn, upon his oath, deposes

and says that he is an officer of the defendant corporation above

named, to wit: the secretary thereof; that he has read the above and

foregoing amended answer and knows the contents thereof and that

the same is true of his own knowledge except as to matters therein

stated upon information and belief and as to such matters he believes

it to be true.

FRANK J. WESTCOTT.

Subscribed and sworn to before me this 14” day of December,

1911.

ALLIE LEVY,

[SEAL. ] Notary Public.

My commission expires May 27-1915.

Copy of the above and foregoing amended answer received and

due service admitted this 14 day of December, 1911.

WILLIAM H. KING,

Solicitors for Complainant.

Filed Dee. 16, 1911.

JERROLD R. LETCHER,

Clerk.

sie

SILVER KING COALITION w. CO. V8. CONKLING M. co. 43

ree of the District Court, by Judge, Johnson, Filed November

8, 1916, as to Defendant's Motion to Reopen Case for the Intro-

duction of Further Testimony, etc.)

The matter now before the court involves the meaning of the

mandate of the Circuit Court of Appeals in this case. which reads:

“The decree below must be reversed, and the case must be re-

manded to the trial court for further proceedings consistent with the

views expressed in this opinion, and it is <o ordered.”

Under this mandate a new trial is not ordered but the court is

ordered to take such “further proceedings consistent with the views

expressed in this opinion” as will dispose of the case.

I am of the opinion that the case now stands where it would have

stood had Judge Marshall announced his decision in the language

of the opinion of the Circuit Court of Appeals after the parties had

rested at the conclusion of the trial. In such case he would

51 have made such order as would have been considered necessary

to bring on the hearing on the accounting, and as the case

how stands the natural procedure would be the making of such an

order at this time.

Under the circumstances above Supposed it would have been within

the discretion of Judge Marshall, even after he had announced his

decision, to have opened the case and permitted the introduction of

further evidence upon the part of the defendant, upon application

made and a sufficient showing.

4 Corpus Juris, p. 818 et seq.. and cases cited.

38 Cye. p. 1360, and cases cited.

I do not think the mandate of the Circuit Court of Appeals has

taken away the power of the court still to exercise a like discretion,

That question, however, is not now before the court. so far the dis-

cretion of the court has not been appealed to, and | think it would he

an abuse of discretion for the court of its own motion to open the

case for a further hearing on the matters already submitted.

Since the defendant has suggested its desire to present further

testimony, the order prayed for by plaintiff will be held in abeyance

and the defendant given until and including the 16th day of De-

cember, 1916, in which it may present its application, upon such

showing as it may deem proper, to reopen the case and introduce

further testimony.

Endorsed: Filed in the District Court on Nov. 28, 1916.

44 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

(Opinion of the District Court, by Judge Johnson, Filed January; 4,

{917 as to Defendant's Motion to Reopen Case and Plaintiff's

Motion for a Decree in Accordance with the Mandate of the US...

Circuit Court of Appeals.)

This case is before the court upon the motion of the plaintiff to

enter a decree in accordance with the mandate from the Circuit

Court of Appeals adjudicating the ownership of the premises and of

the vein of ore in controversy to be in the plaintiff, and for an ac-

counting ; and also upon the application of the defendant to re-open

the case and permit the introduction of further evidence by the

defendant.

Upon a former hearing of plaintiff's motion, this court expressed

the view that it had the same discretion in respect to opening

52 the case and permitting the introduction of further evidence

that it would have had, had this court rendered a decision in

favor of the plaintiff in the first instance.

Since that time, however, attention has been called to the case In

Re Potts, 166 U. S. 263, in which case under conditions entirely

similar to those in the case at bar, the Supreme Court of the United

States declared the rule to be:

“When the merits of a case have been once decided by this court

on appeal, the Circuit Court has no authority, without express leave

of this court, to grant a new trial, a rehearing or a review, or to

permit new defenses on the merits to be introduced by amendment

of the answer.”

It is apparent from the above rule that had the case at bar been

decided and remanded by the Supreme Court of the United States.

this Court would be without authority to do more than enter judg-

ment in accordance with the opinion, and for an accounting. As-

suming that the Cireuit Court of Appeals would, if called upon to act.

adopt the same rule with respect to its decisions as that announced

by the Supreme Court of the United States, and | think this is-a

reasonable assumption, I conclude that the view heretofore expressed,

that this court has a discretion in the matter, was a mistaken one.

The order will, therefore, be that the motion of the defendant be

denied and the motion of the plaintiff granted.

The form of the decree and order will be considered and deter-

mined at 10 o'clock January 6th, at which time counsel for the

respective parties may present such forms of the decree and order to

be entered as they may deem proper.

Endorsed: Filed in the District Court on January 4, 1917.

LE A NN ON EN ar

SILVER KING COALITION M. CO. ys. CONKLING M. Co. 45

(Op-nion of the District Court, by Judge Johnson, Filed February

27, 1918, as to Accounting.)

This ease is now before the court for its determination upon the

accounting ordered in the decision of the Circuit Court of Appeals in

this cause reported in 230 Federal, 553.

A statement of the facts respecting the title of the common prop-

erty of the parties and the matters out of which this litigation arose

appears in the decision above cited. as well as in the opinion of Judge

Marshall filed herein, and these facts require no re-statement at this

time.

53 In this opinion I shall confine myself to a statement of the

rules to be applied in stating the account herein, with a brief

discussion of the reasons which have led to the adoption of these

rules.

The record in this matter is voluminous but in many respects un-

satisfactory, and the best that can be hoped for is an approximation

of a true account between the parties,

By reason of the unsatisfactory state of certain of the evidence

counsel for the plaintiff have urged in their briefs the arbitrary

adoption of the rule adopted by Judge Marshall in respect to the

classification of the ore in the Silver King case. It is to be noted,

however, that counsel have not urged the application of the rule

adopted by Judge Marshall in that case in respect to the cubical

contents of a ton of ore in place.

There are facts in evidence in this ease which were lacking in the

Silver King case. In this case the plaintiff had access to the ore

body and the cavities from which the ore had been removed from

alout the middle of the year 1908 until the date of the former trial

und decision in this court.

After the decision of Judge Marshall in favor of the defendant

the plaintiff did not seek an entrance into the mine or access to the

ore bodies or the stopes until after the case had been reversed by the

Cireuit Court of Appeals. In the Silver King case it appears that

no attempt was made to keep an account of the quantity of ore

removed from the mine or its classification, while in this ease from

about the first of May, 1909, books were kept in which a daily record

was made of the cars removed from the mine with a classification of

the ore. Upon the facts in evidence in this case I do not think the

court would be justified in arbitrarily adopting the rule of Classifica-

tion applied by Judge Marshall in the Silver King case.

In this case the defendant has filed four separate accounts which

differ one from another in respect to certain items contained in the

based apparently upon the opinion of witnesses called in the case,

and respecting these changes no explanation has been made of any

46 SILVER KING COALITION M. CO. V8. CONKLING M. Co.

mistake upon the part of the defendant company or of any of

oo its officers or agents who made up the accounts. I assume

that each one of these accounts was made up by the defend-

ant upon data known to its officers or responsible agents, or from

information received by them which they considered reliable, and I

am of the opinion that the data given in these accounts made up in

this way, should have great weight as expressing the best judgment

of the defendant as to the fact, and, unexplained, should not be dis-

regarded even though certain witneses who testified in the case have

given an opinion more favorable to the defendant.

In order to render a true accounting between the parties herein

it is essential to have data upon several matters, namely: volume,

classification, waste, metallic content, of ore, and price. These mat-

ters will be considered in their order.

Volume.

The total cavity mined within the limits of the Conkling ground,

as given by the witness Brooks, is as follows:

1907 50,000 cubic feet

1908 37.120 * «

1909 104,295 “ «

1910 29/355 cubic feet

1913 4505 “ “

1914 18246 “ «

1915 42242 “ «

1916 16410 “ «

These figures are not disputed by the plaintiff and are, in fact,

adopted by it in all of its calculations in making up what it claims

to be the true account.

In the first and second accounts the defendant has used 9 cubic

feet as representing the volume of a ton of first class ore, and 11

cubic feet as representing the volume of a ton of second class ore.

In the third a fourth accounts it has used 7.275 cubic feet for

class ore, and 10.3 cubic feet for second class ore. The _—

in the first and second accounts are adopted from the findin

Judge Marshall in the Silver King case, except that in that case 12

cubic feet was used as representing the volume of a ton of second

class ore. The figures used in the third and fourth accounts are

arrived at from the experiment made by the witness Brooks with the

ore samples taken by him from the stopes during the course of the

trial.

The witness Taylor made calculations, based upon the data

furnished by the defendant company with respect to the con-

55 tents of the cavity on the 600 level and the quantity of ores

taken therefrom, that seem to me to be entitled to greater

weight in the decision of this question than any other evidence offered

in the case, and I shall adopt his conclusions, namely: 6 cubic feet

for first class ore, 7.62 for second class ore.

Beginning with about the first of May, 1909, the defendant be-

SILVER KING COALITION M. CO. V8. CONKLING M. Co. 47

gan to take ore from the mine at the 500 foot level of the Silver Hill

shaft, and from that time on the ore was pegged showing its classi-

than the

method urged by the plaintiff in its brief. The roximate ac-

curacy at least of these records was assumed in the cclvalation made

by the witness Taylor upon which has been based the finding of the

cubical contents of a ton of first and second class ore. As used by

the witness Taylor these records gave a fair and reasonable result. as

I believe, with respect to the cubical contents of a ton of first and

second class ore, and justifies their adoption in stating the account

not only for the years 1914, 1915 and 1916 but for the year 1909

after the first of May, and for the year 1910,

Classification.

The ratio of first to second class ore for the year 1907 in defend-

ant’s first and second accounts is 1 to 2; in the third and fourth ac-

counts, 1 to 11/5. Under the testimony it is uncertain what the

*Xact proportion was of first to second class ore for this year, but from

all the evidence I am led to the conclusion that as much as one-half

of the ore removed during this year was first class ore.

For the year 1908 the ratio o first to second class ore. as given by

the defendant in its first and second accounts, is 1 to 2: in its third

and fourth accounts, 1t07. The ratio of 1 to 7 wresumably is based

upon the recollection of certain Witnesses called at the trial who

mined in the Elephant stope during the vear 1908 who testified re-

*pecting this matter. Necessarily such evidence can have no great

weight. The defendant, in making up ite first and second accounts,

presumably as I have said, from the knowledge or recollection of its

officers and ag,

testified for the |

of 1 to 2 is probably approximately correct

As already intimated. the ratio of first class to second class ore for

the years 1909 and 1910 and the vears 1913, 1914. 1915 and 1916,

will be based upon the classificatio:

in evidence in

Waste.

No waste is claimed by the defendant for the year 1907. In its

first and second accounts the defendant gives the percentage of waste

as “none” for the year 1908. In the third and fourth accounts,

48 SILVER KING COALITION M. CO. Ys. CONKLING M. Co.

14.3%. I do not believe the uncertain recollection of wits

called in the case ought to outweigh the best judgment of th

fendant at the time it made up its first and second accounts,

sumably from information secured, as already suggested. T!

- cet to the separ in view of the tastimnen y tao ote

with respect to the appearance of t ore in the stope. Waste

be allowed for the year 1908,

For the years 1909 and 1910, and the years 1913, 1914, 1912

~~ allowance of one-seventh for waste, under all of the

in t case, probably more nearly imates an average of

waste than any other percentage, oil tr eats of these years

seventh will be allowed for waste, where the matter of waste bec

important.

Metallic Content of Ore and Price.

ceived on the K-K shipment.

The plaintiff, on the other hand, has ignored, except incident

the metallic content of the ores and adopted as a basis of the vs

of the ores the highest monthly av of prices received by

defendant during any month of each the several years covere:

the account. is method was used by Judge Marshall in the

ver King case, Judge Marshall in that case saying: “There is nc

liable evidence as to when the ores from this stope were market

In the case at bar it, I believe, sufficient! that the ore:

moved by the defendant from the ing ground were 1

57 keted in due course and within probably irty days from

time the ore was taken from the stopes, except the K-K «

ments.

The evidence shows that the K-K shipments were taken from

Elephant stope, but from a consideration of all the testimony in

case, as well as the lack of testimony upon certain essential matt

I am not satisfied that these shipments t the value of all

ores taken from the Conkling ground. - is a remarkable des

of testimony respecting the assay value of the ores taken during

period of nine years while the mine was operated, and in view of

ground with othee aa mixed the ores taken from the Conk

ground with other ores mined by it, upon t principle icable

the case of a confusion of goods, the metallic centent of the en

should be determined from the average metallic content of all

ore shipped by it from year to year during the period of this

Soe ADE: OF, as a practical matter in making up the account, dis

garding the metallic content, the prices allowed for the ore in qu

tion should be based upon the yearly average prices received by

defendant for all the ores shipped by it, with the limitations here

after mentioned.

SILVER KING COALITION M. CO. VS. CONKLING M. Co. 49

Applying the general rules above given in detail, the account for

ated eee ee

1907.

The returns on the K-K shipments as shown by the books of said

y in evidence.

tonnage of the K-K shipment reduced to its volume in cubic

feet and deducted from the 56.000 cubic feet of excavation mined

during this year.

The tonnage and classification of the balance of said excavation

determined upon the data heretofore given, and the price thereof

1908.

To be calculated from the data heretofore given, the value of the

ore to be determined by the average of the prices received by the de-

fendant for its ores during this year.

1909 and 1910,

the cars used upon the Silver King side. This is true, but there is no

certainty, under the evidence, that any considerably greater weight

of ore was hauled in them than was hauled in the smaller Silver King

cars. But the controlling consideration in this matter of the weight

termined, the difference in the weight of the cars, if any, Was not

taken into consideration, and if the result of his calculations with-

out this matter being considered gives the cubical content of a ton

of first and second ie ore in place, it seems to follow that the dif.

ference in weight in the cars, if any, ought to be disregarded in other

re .

The weight of the cars to be used in this calculation will be the

weights of cars given by the witness Daly for thie period, namely :

2,100 for first class, 1,650 pounds for second class. From

these , together with the cubical contents of a ton of ore as

found by the witness Taylor, may be determined the quantity of the

space excavated during the years 1909, 1910, oceupied by the ores

4—158

ore re-

i years leaves the cavity of the ores

removed d the first four months of the 1909 and of which

mo susend wan bapt. Assuming the ratio of and second class ore

during this last mentioned period to be the same as that during the

period from May 1909 to June 1910, the amount of first and second

class ore contained in this cavity may be determined from the data

ziven; the price for the year 1909, to be the average for the

year as above j i

vear i

ores

i the year 1913 is unsatisfac-

torv. cavity for that year, furnished by the witness Brooks. was

4,505 cubie feet. The ore, as given by the shift boss books, leaves

a“ this space to be occupied by waste

seem unreasonable. U) ly there is a mistake as

ity for this year, or the uantity of

of the cavit

ore removed. The basis for calculation must, therefore, be more or

les a surmise. Meng phreximation I have concluded to use the

following: The ratio of to second class as shown by the shift

boss books; percentage of waste one-seventh ; volume of cavity 4,505

cubie feet. With this data and that heretofore given, the quantity

and class of ore to be i , and the price to be an average of

the prices of the ores sold by the defendant company during the

months of November and December, 1913, and January, 1914— it

OF ake, Probable that some of this ore was marketed in the early part

1914, 1915, and 1916.

The amount of first and second class ore as shown by the shift

oss Looks, the weights of the cars to be the same as those used by

the witness Taylor in making his calculations: the price of the ore

for the year 1914 to be the average price of all the ores sold by the

It may be remarked in this connection that the discrepancies ap-

pearing when the vears 1914, 1915, and 1916 are i sepa-

rately, di nm treated as a unit, as was done by the witness

Taylor in calculations.

Slimes.

The value of all slimes accounted for, to be included in the ac-

count.

SILVER KING COALITION M. CO. vs. CONKLING M. Co. 51

Interest.

Interest at the legal rate should be allowed on yearly balances to

date of decree.

defendant is entitled to credits as charges against the value

ore accounted for, as above indicated, as follows: mining

charges $4.50, sampling $0.221, tramming $0.20, milling $1.10, per

ton; the reasonable expense of all development or dead work done

thin the limits of the Conkling ground. except in respect to the

For such development or dead work and raises, the allowance will be

the value claimed by the defendant in its account, except in those

cases where witnesses called by the defendant’ have given a smaller

sum as a reasonable value.

oO The driving of the Alliance tunnel was prosecuted by the

ssor in interest of the defendant for the purpose of

developing the country lying to the west. of which country the

Conkling ground was only a part. After having discovered the ore

body in the Elephant stope the defendant acquired what is known as

the Belmont property and made use of the Alliance Tunnel during

the years from 1907 to 1916 for the development of the Belmont

property and the removal of the ores discovered therein, as well as

the removal of the ores found in the Conkling ground. As I view

it, it would be unjust to charge all the expense of running this tunnel

to the Conkling property, as it would be inequitable not to charge

any of this expense to the Conkling ground. It may be true that

at the present time this tunnel does not add any value to the Conk-

ling property. For aught that appears in the record practically all

of the ore in the Conkling ground has been removed, and tunnels

upon a worked-out mine never have any substantial value. The

value of this tunnel to the Conkling property must be considered as

of the time when the ore was discovered, rather than now when the

ore has all been removed. On the other hand, this same tunnel

has been used for nine years by the defendant in connection with its

ownership of the Belmont property. Considered from the stand-

int of what was equitable and right at the time that the ore bodies

in those properties were first discovered and before they had been

removed, and considered in the light of the fact that the defendant

has made use of this tunnel in the removal of the ore from its Bel-

mont property, I have reached the conclusion that one-half of the

cost df cui the Alliance tunnel and tunnels branching there-

from, within the limits of the Conkling ground, except the McKay

erosscut, should be charged against the common fund. In this con-

nection, however, it may be said that a part of the tunnel, in its

progress through the Conkling ground, runs outside of and beyond

the north line of the Conkling claim. At the trial of this cause the

defendant stood upon its legal rights with respect to that part of the

tunnel run oni of the north line of the Conkling claim, and

that part of the tunnel should be excluded in making up this credit.

The defendant, in its account of the cost of this work, used the

52 SILVER KING COALITION M,. CO. V8. CONKLING M. CO,

figures $15.38, $26.186 and $54,073 which give to the account an

air of accuracy to which it is not entitled. These figures are based

upon the estimate made by the witness Walden, which, at best, can

only be called rough estimates. As, under the evidence, only

61 estimated values are possible, round numbers will be used in

-making up the account, namely: $15.00, $25.00, and $50.00,

will - used as approximations to the actual cost in running this

tunnel,

Had the figures used in the account of the defendant been based

upon the books and records of the Kearns-Keith Company, I should

not hesitate to adopt them, and it is somewhat remarkable that in

carrying on this work the Kearns-Keith Company failed to keep

records of the expenditures incurred in its prosecution,

The defendant is entitled to credit for half of the cost of cleaning

up the tunnel within the limits of the Arthur claim, but the price

allowed for such work should be $1.00 per foot where in the account

the charge is $1.25, ;

I do not believe the evidence [sffucient] to justify the court to

require the defendant to account for these ores at price higher than

it actually received for them. It may be possible that, looking back,

the flat rate provided in the Heinz contract may have proven unfav-

orable to the defendant in the marketing of its ores, but | ean find

nothing in the evidence that would justify a finding that it wae

entered into in bad faith or for ulterior pu ;

Interest should be allowed at the legal rate upon yearly balance

to the first day of May, 1907,

It is possible that the defendant should be allowed some credit

for the use of its improvements, ete, during the period of these

mining operations. There is no substantial evidence in the record

of the nature and extent of such use or of its reasonable value, |

do not think a pro rata part of an interest charge upon the value

of the defendant's improvements a legitimate basis for a determing

tion of the value of such use. That item of the defendant's aceount

will be disallowed.

No point has been made in the briefs of counsel with to

the use by the defendant of the water flowing from the Alliance

tunnel, and the defendant will not be required to account in reepect

thereto,

The plaintiff is requested to determine the amount due it upon

a statement of the account as herein provided, and to subenit ach

amount so found due to the court with a form of deere

The defendant will be afforded oy to object to the

amount so found by the plaintiff and for the correction of

62 ee errors which it may claim to have occurred in the cal:

culation,

Endorsed: Filed in the District Court on February 27, 1918

SILVER KING COALITION 6G "6 CONEEERO &@ Em he

(Decree of the District Court, March 2. 190%

accounting for the ote teimetule ame oy ee

said defendant aid ite grantor aimed pateadirerccon oe eetanmesh Bogen

in common Ly the sete he Be wednes te crest of Doon MB eden e

Forty-two Theand Twe Heedred aed Teeene Tie cet o> fee

Dollars, (842,272.58). and

Tt wae Purther Ondered. | wend Dew rare weer ep erent

do have and recover frome the Aetemedeet Ge cmd oe oP Boo

Hundred Forty Two Thewssued, Tee Tete Puente fee cnet

Wath polarntill’s comt bertewm tated at ther cone

with interest upon the fell aeeseet teed fees Ge Hee Gee of

March, 1918, at the rate of 8°) pew aereen, aed ht phere hee

everution theted ot

Dated March 27, 1908

TILLMAN DP JT hee

Diateue

Endored Filed im the Dictre Qoat ce Mase 2°. Doge

(Stipulation a: te Opinwe of Diatent Cot Pibd Poteem FF

"1908. Reine Med @ Part of the Bovund

Dated: Apel 14, 1908

Kdorwed Pied im the Diewus Coe oe Age f) fee

54 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

(Order April 17, 1918, Making Opinion Filed February 27, 1918,

a Part of the Record in This Case.)

At this day comes said plaintiff, by E. B. Critchlow, its solicitor,

and the defendant, by Thomas Marioneaux, its solicitor also comes.

And pursuant to the stipulation filed herein signed by the solicitors

for said parties respectively, and on motion of said defendant, it is or-

dered that the opinion of the Court heretofore filed herain on the 27th

day of February, 1918, containing the Court’s findings in respect

to volume, classification, waste, metallic contents of ore, prices, ete.,

shall become and be deemed to be a part of the record in this cause.

(Statement of the Evidence.)

Filed in the District Court June 19, 1918.

Be it remembered that heretofore and on the 5th day of July,

1909, said complainant filed its amended complaint in the Circuit

Court of the United States, for the District of Utah, which being

entitled in said court and cause, is in words and figures, following,

to-wit:

Amended Bill of Complaint.

To the Honorable the Judges of the Cireuit Court of the United

States in and for the District of Utah:

The Conkling Mining Company, a corporation organized and ex-

isting under the laws of the State of Utah, and a citizen of the

State of Utah, by leave of this Court first had and obtained,

64 files this, its Amended Bill of Complaint, against the Silver

King Coalition Mines Company, a corporation organized

and existing under the laws of the State of Nevada, and a citizen

of the State of Nevada; and thereupon your orator respectfully rep-

resents and alleges: !

That on or about the seventeenth day of September A. D. 1908

Nicholas Treweek and J. Leonard Burch, the original complainants

herein, caused your orator to be duly incorporated under the laws

of the State of Utah for the purpose and pursuit of mining.

That the capital stock of your orator was paid for upon the in-

corporation of said company by a conveyance and transfer to your

orator by said Nicholas icwak and J, Leonard Burch of all their

right, title and interest (being an undivided three-fourths) in and

to the Conkling Lode Mining Claim, patented as U. 8. Lot No. 689,

and the Arthur Lode Mining Claim, patented as U. S. Lot No.

690, situated in the Uintah Mining District, County of Summit

and State of Utah, and also by an assignment and transfer to your

orator of all manner of actions, and causes of actions, suits, dues,

demands, controversies and accounting of every kind and nature

_—

SILVER KING COALITION M. CO. VS. CONKLING M. CO. oO

whatsoever in favor of said Nicholas Treweek and J. Leonard Burch

against the defendant herein.

II.

That said defendant corporation was organized and incorporated

under the laws of the State of Nevada, on or about the month of

May, 1907, to consolidate and take over sundry mining claims and

properties, including the Kearns-Keith Mining Company and the

Silver King Mining Company, respectively corporations, which said

last-named companies theretofore and for a long time had been en-

gaged in the business of mining in the Mining District where said

Conkling and Arthur Lode Mining Claims are situated.

Il.

That in and by said consolidation and merger the defendant

corporation succeeded to the interest then and theretofore owned

by said Kearns-Keith Mining Company in and to said Conkling

and Arthur Lode Mining Claims, viz., an undivided one-fourth (14 )

interest therein.

That on or about the twenty-second day of September, 1903, said

Kearns-Keith Mining Compaiy, predecessor in interest and grantor

of the defendant herein, became the owner of said undivided

65 one-fourth (14) interest in and to said Conkling and Arthur

Lode Mining Claims, and ever since continued to be the

owner thereof until the same was transferred to and merged in the

defendant company as aforesaid, to-wit, on or about the twenty-

ninth day of May, 1907.

That during all of the times said Kearns-Keith Mining Com-

pany was the owner of said undivided one-fourth (14) interest

in said Conkling and Arthur Lode Mining Claim, the said Nicholas

Treweek, as tenant-in-common with said Kearns-Keith Mining Com-

pany, was the owner of an undivided one-half ('%) interest in and

to said mining claims and each of them.

That upon the transfer by said Kerns-Keith Mining Company to

the defendant as aforesaid, said Treweek continued to be a tenant-in-

common with the defendant herein in said mining claims and

each of them, and so continued to be until the transfer to your

orator as hereinbefore alleged.

AV.

{

That said J. Leonard Burch since on or about the sixteenth day

of May. 1906, until the transfer to your orator herein, was the

owner of an undivided one-fourth (14) interest in and to said

Conkling and Arthur Lode Mining Claims. That as such owner

since said sixteenth day of May, 1906, he was a tenant-in-common

56 SILVER KING COALITION M. CO. VS. CONKLING M. CO.

with said Kearns-Keith Mining Company in said mining claims

and each of them until the time of*the transfer by said Kearns-

Keith Mining Company of its interests therein to the defendant

herein, and since the time of said tvansfer he was a tenant-in-common

with the defendant herein in said claims and each of them, until he

transferred his interest to your orator as hereinbefore alleged.

That on or about the twenty-third day of February, 1892, the

United States of America by its letters patent granted to the Boss

Mining Company, a corporation, those certain premises called the

Conkling and Arthur Lode Mining Claims, respectively situated in

the Uintah Mining District, County of Summit, then territory, now

State of Utah, said Conkling Lode Mining Claim being particularly

bounded and described in said patent, to-wit:

“Bounded, described and platted as follows, with magnetic varia-

tion seventeen degrees and twenty minutes east.

66 Beginning at Corner No. 1, a pine post four inches square

marked U.S. 689 P. I.

Thence first course north twenty-one degrees and nine minutes

west three hundred feet to discovery point six hundred feet to corner

No. 2, a pine post four inches square marked U. 8. 589 P. 2, being

also corner No. 4, of Lot No. 191, the Lincoln lode claim, and corner

No. 2 of Lot No. 580, the Pirate King Lode claim from which U. 8.

mineral monument No. 4 bears north thirty-two degrees and fifty-

two minutes west nine hundred and thirty-nine and three-tenths

feet distant, and a pine tree four inches in diameter marked U. S.

= P. 2 B. T. bears north thirteen degrees west twenty-eight feet

istant. ;

Thence second course, south sixty degrees and forty-five minutes

west one thousand five hundred feet to corner No. 3.

Thence third course south twenty-one degrees and nine minutes

east six hundred feet to corner No. 4.

Thence fourth course north sixty degrees and forty-five minutes

east one thousand five hundred feet to corner No. 1, the place of be-

ginning; said Lot 689 extending one thousand five hundred feet in

length along said Conkling vein or lode, and containing twenty acres

and forty-five hundredths of an acre of land more or less.”

and said Arthur Lode Mining Claim being particularly bounded

and described in said patent, to-wit:

“Bounded, described and platted as follows, with magnetic varia-

tion seventeen degrees and twenty minutes east,

Beginning at corner No. 1 a pine post four inches square marked

U. S. 690 P. 1, with mound of stones being also corner No. 1 of

Lot No. 689, the Conkling lode claim.

Thence first course, north twenty-one degrees and nine minutes

west, three hundred feet to discovery point, six hundred feet to

corner No, 2, a pine post four inches square marked U. U. S. 690,

+m nies

SILVER KING COALITION M. CO. VS. CONKLING M. CO. 57

P. 2, in mound of stones being also corner No. 2 of said Lot No.

689, corner No. 2, of Lot No. 580 the Pirate King Lode Claim,

and corner No. 4, of lot No. 191, the Lincoln lode claim from which

U. S. mineral monument No. 4 bears north thirty-two degrees and

fifty-two minutes west nine hundred and thirty-nine and three tenths

feet distant; and a pine tree four inches in diameter marked U. 8.

690 P. 2 B. T. in mound of stones bears north thirteen degrees west

thirty-eight feet distant.

67 Thence, second course, north seventy-six degrees and fifty-

seven minutes east nine hundred and fifty-one and eight

tenths feet to corner N. 3.

Then third course south, twenty-one degrees and nine minutes

east one hundred and thirty-eight and eight tenths feet intersect line

2-3, of Lot No, 342, the Pay Rock No. 2, lode claim, at north seven-

teen degrees and twenty minutes east one hundred and thirty-two

and four tenths feet from corner No, 8, three hundred feet intersect

line 3-4 of said Lot No. 342 at south seventy-two degrees and forty

minutes east one hundred and five and thiree-tenths feet from corner

No. 3, six hundred feet to corner No. 4.

Thence fourth course south seventy-six degrees and fifty-seven

minutes west nine hundred and and fifty-one and eight tenths feet

to corner No. 1, the place of beginning. Expressly excepting and

excluding from these presents all that portion of the ground herein-

before described embraced in said mining claim or survey No. 342,

and also all that portion of said Arthur vein or lode, and of all

veins, lodes and ledges, throughout their entire depth, the tops or

apexes of which lie inside of such excluded ground; said lot No.

690 extending nine hundred and fifty-one and eight tenths feet in

length along said Arthur vein or lode the granted premises in said

lot containing twelve acres and eighty-two hundredths of an acre of

land, more or less.”

¥e

That under and beneath the surface and within the exterior

boundaries of each of said mining claims extended downward ver-

tically, there is a lode or vein of rock in place, bearing silver, lead

and other valuable minerals, extending on its course or strike through

the length of said claims, That said mining claims and each of them

are only valuable for the ores and minerals therein contained.

VIL.

That, as your orator is informed and believes, ever since the

incorporation of said defendant company the defendant herein has

been and still is in possession of said vein or lode within the premises

hereinbefore described and all the ores and minerals therein, working

and developing the same and extracting said ores and minerals

therefrom. Also upon information and belief, your orator alleges

that prior to the incorporation of the defendant as hereinbefore

alleged, its said-grantor and predecessor in interest, the Kearns-Keith

58 SILVER KING COALITION M. CO. V8. CONKLING M. CO.

Mining Company, was in possession of said vein or lode and

68 all the ores and minerals therein within the planes aforesaid,

working and developing the same and extracting the ores and

minerals therefrom.

That said defendant and said Kearns-Keith Mining Company

ined access to said Mining Claims and premises and said ores,

beneath the surface and within the said boundaries of said mining

claims extended downward vertically, by means of extending certain

underground works situated upon other property, now owned by the

defendant and _— to the incorporation of the defendant company

owned by said Kearns-Keith Mining Company and Silver King Min-

ing Company, which were merged into the defendant company as

hereinbefore alleged, and to which said underground works your

orator herein and its said grantors and predecessors in interest have

had no access or means of access, and from which they have been,

and your orator is and has been, excluded by said defendant, except

as permitted to enter by the order of the Court herein, made on the

thirtieth day of June, 1908.

VIIL.

That, as your orator is informed and believes, the defendant herein

since its said incorporation and said Kearns-Keith Mining Company,

the grantor of said defendant, prior thereto by means of said under-

ground works, have extracted large quantities of ore from said

Conkling and Arthur Lode Mining Claims within the planes afore-

said. That the ores so extracted by the defendant and its said

grantor, said defendant has appropriated and converted to its own

use. That the value of said ores, so extracted by the defendant and

its said grantor, your orator is unable to specify with exactness, but

upon information and belief alleges the same to exceed in value the

sum of one million dollars (#1,000,000.00).

IX.

Your orator further alleges that said grantors of your orator did,

prior to the commencement of this action, demand from said defend-

ant that it account to them, as tenants-in-common with it in said

mining claims, for the ores and minerals by it and its said grantor

removed from said premises and disposed of, and for their just and

proper share of the value thereof. That said defendant company

failed and refused to give to said grantors of your orator any account-

ing whatsoever for the ores or minerals by said defendant com-

pany extracted and removed from said premises, or to pay to them or

either of them their just, or any, proportion of the value thereof.

That after the incorporation of vour orator, and after your

69 orator succeeded to the rights and interests of said Nicholas

Treweek and J. Leonard Burch in and to said mining claims

and each of them, to-wit, on or about the thirtieth day of November,

1908, your orator demanded of said defendant an accounting as

tenant-in-common in and to said mining claims and for your orator’s

SILVER KING COALITION M. CO. VS. CONKLING M. Co. 59

just proportion of the value of the ores mined from underneath the

surface of said Conkling and Arthur Lode Mining Claims between

planes drawn down vertically through the exterior boundaries of

said mining claims as herein described. That said defendant com-

pany has entirely ignored said demands and failed and neglected

to make answer thereto, exexept as hereinafter alleged, and refused

to let your orator into the possession of either of said mining claims,

or to in any manner account to or with your orator in the premises.

«3.

That the defendant asserts, pretends and claims an exelusive

interest (not as tenant-in-common with your orator) jn a portion

of said premises, to-wit, the southwest one hundred thirty-five and

one-half (135.5) feet of said Conkling Lode Miniag Claim, as here-

inbefore described, adverse to your orator, and to have exclusive right

and ownership of all the ores contained therein within planes ex-

tended downward vertically from the following described lines: to-

wit, Bounded on the southwest by the southwest end of aid Conkling

Claim as hereinbefore bounded and described and on the northeast

by a line drawn parallel thereto and one hundred and thirty-five

and five tenths feet distant therefrom, and by the respective side

lines of said Conkling Mining Claim as hereinbefore described:

and said defendant has given out in speech, and otherwise, that it

has the exclusive right to enter in and upon said premises and re-

move ore therefrom without accounting to your orator as a tenant-

in-common with it as aforesaid, because of its alleged ownership of

certain overlapping and conflicting mining claims called the Custer

No. 2 and Silver Hill No. 4 and also because it asserts that the

boundaries of said Conkling Claim as described in the patent thereof

and herein, are not the proper boundaries thereof to the extent of

including the said southwest 135.5 feet of said Conkling Claim as

hereinbefore described and bounded.

That the alleged claims and pretenses of said defendant are false

and untrue, and unfounded in fact: also that by reason of the

facts herein alleged the said defendant ought not to be per-

70 mitted to controvert and vary the location and boundary of

said Conkling Claim upon the ground as the same are de-

scribed in said patent and herein, or to assert an interest adverse to

your orator or otherwise, if at all, than as trustee holding the title

of said overlapping and conflicting Silver Hill No. 4 and Custer No,

2 Lode Mining Claims for the benefit of the defendant and your

orator as tenants-in-common in said Conkling Lode Mining Claim.

according to their respective interest therein as hereinbefore alleged.

That the description of the location of said Conkling Lode Mining

Claim, as described herein, is the same and identical description as

described in the patent and as patented. That in and by said deserip-

tion contained in said patent, the location of the boundaries of said

Conkling Lode Mining Claim can be readily traced ascertained and

determined upon the ground, all of which has, at all of the times

herein mentioned, been well known to said Kearns-Keith Mining

60 SILVER KING COALITION M. CO. V8. CONKLING M. co.

Company, and to the defendant hereip, as your orator verily be-

lhheves. That ever since said Conkling Mining Claim was

patented, the owners of said claim have never had an dispute or con-

ip and right of Prmace.

ion of said Conkling Lode Minin Claim as deseribed in and ax

located upon the by said iption contained herein and yn

Kearns-Keith Minin Company, as co-tenant or tenants-in-common

with your orator its grantors as herein alleged.

XI.

That the defendant herein and its said grantor Kearns-Keith

Mining Company subsequent to said twenty-second day of September

actual tine of which your orator has no means of ascer-

taining), as your orator is informed and believes, did secretly extend

a certain tunnel called the Alliance Tunnel through and wnder-

neath said Conkling Lode Mining Claim from the northeast boundary

of said claim to southwest end boundary of said claim: ales

secretly drove a cross-cut extending from said Alliance Tunnel, so

cntentiod underneath said Conkling Lode Mining Claim, to near

the southwest corner of said Conkling Lode Mining Claim as de-

scribed in said patent and herein. That said Alliance Tunnel at the

time of the incorporation of said Kearns-Keith Mining Company did

not extend to the boundaries of said Conkling Lode Mining Claim.

the boundary ao of said Conkling Lode Mining Claim extended

down vertically,

Silver King Mining Company and the levels and drifts therefrom.

and said Alliance Tunnel are wnder the exclusive ownership and

control of the defendant (except only as to right reserved to Thomas

SILVER KING COALITION M. Co. ys. CONKLING M. Co. 61

ore of the value of not less than one million dollars ($1,000 ,000.00)

a* your orator is informed and believes.

XII.

That the description of the said Conklin Lode Mining Claim as

asserted and pretended to be by the defendant herein as aforesaid

is such that it is within the boundary planes of said Conkling Lode

Mining Claim, as described in the patent thereof as aforesaid, ex-

downward vertically, and wineipally within the boundary

planes extended downward vertical ¥ of said southwest 125.5 feet of

said Conkling Lode Mining Claim, as hereinbefore described, that

the principal

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