# Transcript of Record — Silver King Coalition Mines Co. v. Conkling Mining Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0432%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1921 - **Citation:** 255 U.S. 151 ## Text (27,244) 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 I] = ZSeS8e88R RF RR et Print. 82 8 £ 88 8 BSLESF & BK FE = — — -§ = ff BES SSESSRERE 3 - 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 24 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 z3 fendant’s petition for leave to file an amended «tate ; : ij ft CCRT : Hy tit Te fof 32 Fs 4 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 515 520 524 525 528 426 426 427 430 482 436 436 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 ad 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 ix 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 y. 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 H F i : 3 F ; : sheFE Ae i - if i = 24 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. fai He 7H iN i! Tr oh ae eugs Hit it Re af sis = ce ih ie i i : rill full LVER KING COALITION woo we PORKLING M. OH. I pul : E Hut it He pi pada gfe peel gel Saptecgs oad Huth i Tae ga plas gi Ate Berlei Hat PHUR ES A BA fe: deity! alpen ie TH rt DHT ie ip Hie eeeuk ult - i e- Es7isg ist Beas a = sf 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, es 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. X. 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 ) 2: Hin astit hy: ah s3:s aH af ink ee his 33 ‘i . 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, es 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 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 a 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 2 Z : i 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. 1, 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. V. 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. X «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 part and value of said ore ao secretly found and dis- covered as aforesaid was and is contained. That the value of said ore «o found and discovered within the planes extended downward vertically from the boundaries of said southwest 125.5 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.. OOO 00). 72 That all of the aforesaid secret underground work and iscovery 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 Bureh, a= 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 Conkling Lode Mining Claim, to wit. said Nicholas Treweek and J Leonard Burch, became suspicious that there had been secret developments made in said Conkling and Arthur Lode Mining Claims by the said Kearns-Keith Mining Com- pany, and thereafter, after said merger, applied to said defendant for admission to any underground workings beneath the surface of said Conkling «nd Arthur Lode Mining Claims: that said applica- tion was refused by the said defendant. That thereafter, on or about the month of December. 1907, said Nicholas Treweck and J. Leonard Burch, as tenants-in-common with the said defendant in said Conk. and Arthur Lode Mining Claims, and also asserted that it had spent & great deal of money in explorations, and claimed the right to re- move and extract sufficient ore. had there been any in the said Conkling and Arthur Lode Mining Claims, to repay the said de. fendant for the money expended in such explorations, before the said Nicholas Treweek and J. Leonard Burch, as tenants-in-common, 62 SILVER KING COALITION M. CO. ya. CONKLING M. Co. with said defendant, could set up any claim for an accounting. That in qicrence to the demand made for the privilege of entering the workimgs for the purpose of making an examination and survey, the defendant asserted and contended that such demand, so made’ was not with the hope of finding the conditions in reference to the de- fendant having mined ore in said Conkling and Arthur Lode Mining Claims, a= suspected, but charged some ulterior and im pur- pose id motive in said demand and request so made by said cek and Burch. 73 XT. Your orator further al that after the secret uy ly said t and its grantor, Kearns-Keith Mining Co., of ore value as aforesaid and within that portion of said Conkli Lode a Claim A -pommnee — to fond ~~ =p 135.5 feet t , and said Kearns-Keith Mining y, predecessor in interest and grantor of the defendant herein, as aforesaid, prior to the incorporation of the defendant, to wit, in the years 1 and 1907, made and caused to be made cunning efforts to purchase the interest in said — — owned by - Treweek and said Burch, representing that said interests were of no special value, and thousand dollars offering to pay for said interest the sum of fifteen ($15,000.00) and no more. That the first suspicion said Treweek and Burch had of the poy there having been developments made in said and Arthur Lode ining dollars ($15,000.00) and after the purchase of said 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 as aforesaid, the defendant's said grantor, Kearns- Keith Mining Company, did thereafter and during the month of April 1997, purchase from the Belmont Mining pany, a cor- poration, for a consideration not exceeding one hundred fifty thou- sand 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 conveyance Thomas Kearns Trustee, who was then the President or Manager of said Kearns-Keith Mining Com- SILVER KING COALITION M. CO. VS. CONKLING M. Co. 63 That said Patent was based upon location notices antedating 74 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 particularly 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 the period aforesaid, while the said Treweek and Burch and the said Kearns-Keith Minin Company were tenants in common as aforesaid in said Arthur — Conkling lode mining claims, the said Kearns-Keith Mining Company and said Treweek 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 southwest 135.5 foot strip of said Conkling claim ax 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, a tenants in common, were in the possession as aforesaid of said Arthur and Conkling claims, including all the aforesaid overlappin 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 claims or either of them as your orator is informed and believes except the aforesaid ore bodies developed prior‘to said purchase within said area over- lapping 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 Company 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 until the purchase by the said Kearns-Keith Mining Com- pany of the said Custer No. 2 and Silver Hill No. 4 lode mining 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 planes thereof as described in said 75 patent, or in or to the sondieet 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 said grantor, the said Kearns-Keith Mining Company, 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 64 SILVER KING COALITION M. CO. V8. CONKLING M. CO. claim at all adverse 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 of said work, the said defendant and its said grantor odel 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 carrying on said work as such tenant in common as aforesaid and while claiming to be carrying on the same for the development of said pate so held and claimed in common, and while claiming reimbursement, by reason of said cotenancy, 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 se- cretiy 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 intending 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 your 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 of said ore bodies and the value of the ore contained therein—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. 7h That said Kearns-Keith Mining Company secured title to said Custer No. 2 and Silver Hill No. 4 mining claims by rea- son of its possession of said premises under its claim thereto as tenant in common and under its claim that the same was part of the Conk- ling mining claim, and purchased said Custer No. 2 and Silver Hill No. 4 mining claims because of its knowledge obtained while extend- ine 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 euch adverse claims, to deprive your orator and its predecessors in title of the ore diseovered and partially extracted and sold by the eaid 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 pretentions 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 SILVER KING COALITION M. CO. V8. CONKLING M. CO. 65 Conkling lode Mining claim, as the same is bounded and described in the patent [and] herein, should not be included therein when lo- cated upon the ground, constituted the first notice that said Treweek and Burch, or either of them, ever had that any such claim, preten- sion or contention existed, from any source whatsoever. That said claim and assertion first came to the notice or knowledge of said Tre- week 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 de- termining 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 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 ver- tically, and of the location of the ore body within said Conkling Lode Mining Claim, and the Character and extent of the ore body 77 developed therein, and of the importance 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 respectively 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 re- moval of ore from said Conkling Lode Mining Claim, for the pur- = of taking wrongful and undue advantage of said Treweek and urch, 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. XVII. Your orator further alleges, upon information and belief, that said overlapping junior patented claims, to-wit, the Custer No. 2 and Sil- 5—158 66 SILVER KING COALITION M. CO. V8, CONKLING M. Oo. ver 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 sid Treweek and Burch and your orator, as tenante-in-common with the said defendant and its grantor, the K in said Conkling Lode ining Claim as aforesaid, out of their just and proper rights in the premises, and particularly from that portion of said Conkling Lode Mining Claim wherein the principal part and value of said ore, so secretly discovered a* aforesaid, i« contained. Also that the attempt on the of the defendant herein to dewrnbe and locate the said Conklin Mining Claim #0 as to ewlade the southwest 135.5 feet , as aforesaid, is made with a like intew: tion and purpose, as your orator is informed and beliewes That neither your orator, nor its said tors Nicholas Treweek and J Leonard Burch, were ever by said defendant of ite Kearns-Keith Mining Company, as it and they were in duty bowed $7 sine of cuid perches of cold Caster a iN Mining Claims, or permitted to icipate on That Ester Na. 2 and Silver Tl ever since said pu of said No. wer Hill Ne. 4 XVUL And your orator further shows and alleges that the earvew of eaid Conkling Lode Mining Claim purports to hawe heen made in No vember of the year 1889 by Adolph Jeson, now decensed, them Diep. uty United States Mineral Surveyor; that all other persons commectedl where the respective corners were marked if marked ot all. ik mow only a matter of lation. That the defendant herein tue =p wards of forty (40) miles of underground work is informed and believes, which have been made panies which it succeeded, as hereinbefore L ster = (Se OEE & Atom Me es a et | #443777 Hit or 22 ae ii Hie «| Hise ile Ht ST oe ial Ht iano yy UU eit nat it H il Bhs Hay; ite ike fats petit td ate sil ~ HD adie aty a 3 68 SILVER KING COALITION M, CO, V8. CONKLING M, CO. 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 SO true, direct and perfect answer make to the matters herein- before stated and charged, but not under oath, answer under oath being expressly 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 (4%) interest therein as tenant in common with your orator; and that the title and owner- ship of your orator to an undivided three-fourths (*4) interest in said Conkling and Arthur Lode Mining Claims, as specifically here- inbefore described, and to the ores and minerals contained therein vertically beneath the surface boundaries thereof as hereinbefore deseribed, 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 ne de- termined; and that, upon such accounting being had and the value of such ores ascertained and determined, your orator may be decreed to 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 grant unto your 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 absolutely desist and refrain from entering into or upon any portion of said Conkling and Arthur Lode Mining Claims as hereinbefore described, or either of them, and from working in or upon said premises or beneath the surface thereof, or taking any ores or minerals therefrom at any point upon or beneath the surface of said premises herein deseribed extended down vertically; or, that your Honors in lieu of an injunction as prayed for, appoint a receiver herein pending the final determination of this action, and that such receiver be empow- ered and authorized to enter into the joint or common possession of «aid Conkling and Arthur Lode Mining Claims, as they are bounded and deseribed in this Amendcd Bill of Complaint with the defendant company, and said receiver and said defendant com- Sl pany continue the further mining and disposing of the ores now developed and that may hereafter be found and developed lving underneath the surface of said Conkling and Arthur Lode Mining Claims, nd confined between the vetieat planes drawn down — SILVER KING COALITION M. CO. VS. CONKLING M. CO. 69 through the exterior boundaries of said mining claims as herein- lefore described under such suitable 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 tenants- invommon in said Conkling and Arthur Lode Mining Claims according to the respective shares, viz., an undivided three-fourths (4) interest for your orator and an undivided one-fourth (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 its costs of suit in this behalf wrongfully expended. CHARLES C, DEY, A, L. HOPPAUGT, Solicitors for Complainant. Unrrep States or AMERICA, District of Utah, County of Salt Lake, ss: I, Leonard Burch, being first duly sworn, deposes and says: That he is an officer of the Complainant herein, Conkling Mining Com- pany, to-wit, the Treasurer thereof; that he has read the above and foregoing Amended Bill of Complaint, and knows the contents there- of; that the same is true of his own knowledge, except as to matters therein stated upon information and belief, and as to those matters he believes it to be true. J, LEONARD BURCH. Subscribed and sworn to before me, this 29th day of June, A. D, 1909, [ SEAL. | G. W. PARKS, Notary Public. My commission expires Jany, 4, 1910, Amended Bill Filed July 5, 1909. JERROLD R. LETCHER, Clerk. 82 (Amended Answer to Amended Bill of Complaint.) Comes now the defendant above named, Silver King Coalition Mines Company, and by leave of the court first had and obtained, files this its amended answer to the amended bill of complaint of complainant above named: This defendant, now and at all times hereafter, saving to itself all and all manner of benefit of exception or otherwise that can or may be had or taken to the many errors, uncertainties and imperfections in the said amended bill contained, for answer thereto, or to so much 70 SILVER KING COALITION M. CO. VS. CONKLING M. CO. thereof as this defendant is advised it is material or necessary for it to make answer to, answering says: This defendant admits that on or about the 17th day of September, A. D. 1908, Nicholas Treweek and J. Leonard Burch, the original complainants herein, caused the complainant to be incorporated un- der the laws of the State of Utah, and did thereupon convey to said complainant corporation all of their right, title and interest in and to the Conkling Lode Mining Claim, patented as U. S. Lot No. 689, and the Arthur Lode Mining Claim, patented as U. S. Lot 690, situ- ated in the Unitah Mining District, County of Summit, State of Utah, and did also assign and transfer to said complainant corpora- tion all manner of actions, causes of action, suits, demands, con- troversy and accounting of every kind and nature whatever in favor of said Treweek and Burch and against the defendant herein, but as to whether or not the capital stock of said complainant corporation was paid for upon the incorporation of said company by the con- veyance of said above named mining claim, or any interests therein, and by the assignment mentioned in said complaint, this defendant has no knowledge or information thereof, and leaves said complain- ant to make such proof thereof as it may be advised. 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 purpose of taking over the Kearns-Keith Mining Company or the Silver King 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. 83 Admits that on the 22nd day of September, 1993, the said Kearns-Keith Mining Company was the owner of said un- divided 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 be advised; and as to whether the said Treweek, upon the transfer by said Kearns-Keith Mining Company to the de- fendant herein was the owner of an undivided one-half interest in said mining claims and each of them and from thence continued to be the owner of such interest in common until the transfer by him to the complainant herein this defendant has no knowledge or informa- tion thereof, and leaves said complainant to make such proof as it may be advised. SILVER KING COALITION M. CO. VS. CONKLING M. CO. 71 That as to whether or not the said J. Leonard Burch was the owner, on or about the 16th day 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 eithe: 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 transferred his interest to the complainant herein, this defendant has no knowledge or information thereof, and therefore leaves said complainant to make such proof thereof as it may be advised. This defendant admits that on or about the 23rd day of February 1892, the United States of America, by its letters patent, granted unto 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. S4 State of Utah, and that in said patent said “ nkling Lode Mining Claim was particularly bounded and described as in the 5th paragraph of said amended bill of complaint set forth, and that in and by the terms of said patent the said Arthur Lode Mining Claim js particularly bounded and described as set forth in said Sth paragraph of said amended complaint, but this defendant alleges that the description and boundaries of said claims as set forth in said fifth paragraph of said amended bill of complaint, are not a true or correct description of either of said mining claims as the same are bounded and described and limited upon the ground by the per- manent monuments, objects and bearing trees found upon the ground, and alleges that the said Conkling Lode Mining Claim, U.S. Lot No. 689, and the Arthur Lode Mining Claim. U. 8, Lot No. 690, as the same are actually found upon the ground. are par- ticularly deseribed and bounded as follows, to wit: Commencing at corner No. 2, the northeast corner of the Conkling Claim and the northwest corner of the Arthur claim, a common corner of said Conkling and Arthur Claims, from which U. Ss Mineral Monument No. 4 bears North 32 deg. 52. Min. west 9239.5 “feet distant, thence from said corner south 61 deg. 21 min.: west 1364.5 feet to Corner No. 3, the northwest corner of said Conkling Claim, thence South 21 deg. 09 min. East 600 feet to corner No. 4, _the southwest corner of said Conkling claim, thence North 61 deg. 21 min. East 1364.5 feet to corner No. 1, the southeast corner of said Conkling Claim. and also corner No. 1, and the southwest corner of said Arthur claim, and thence North 76 deg. 57 min. East 951.8 feet to corner No. 4 the southeast corner of the Arthur Claim. thence North 21 deg. 09 min. West 600 feet to corner No. 3. the northeast corner of said Arthur Claim, and thenee south 76 deg. 57 min. west 951 feet to said corner No. 2, the northwest corner of said Arthur Claim and the place of commencement of surface bounds. The line of division between said mining claims runs North 21 deg. and 9 min. West from said common corner No. 1 to said common corner No. 2. 72 SILVER KING COALITION M. CO. V8. CONKLING M. CO. This defendant admits that beneath the surface and within the exterior boundaries, extended downward vertically, of each of said mining claims, there is a lode or vein of rock in place, bearing silver, lead and other valuable minerals, which, on its course or strike, ex- tends throughout the length of said claims; and admits that said mining claims and each of them are valuable only for the ores and minerals therein contained, but this defendant al- leges that no part or portion of the top or apex of the said lode or vein of rock in place, found beneath the surface of the said mining claims, as above admitted, is found anywhere within the ex- terior boundaries, extended downward vertically, of said claims, or either of them, but that the top or apex of said lode or vein, and the whole thereof, is found and contained within the surface boundaries, extended [dow-ard] 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, or has been, since the incorporation of said defendant, working 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 defendant alleges that the value of all the ore hitherto mined by this defendant from within the surface boundaries, extended downward vertically. of the said Conkling Mining claim, after deducting therefrom the reasonable and necessary cost and ex- pense of mining and disposing of said ores, does not exceed the sum of $20,047.50. And this defendant further alleges that the reason- able 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, of 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 extracted any ores whatever from within the exterior boundaries, extended downward vertically, of the said Arthur Lode Mining Claim. And this defendant denies that the said Kearns- Keith Mining Company, ever, at any time, was in possession of said vein or lode, or all or any of the ores or minerals therein, 86 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. SILVER KING COALITION M. CO. VS. CONKLING M. CO. 73 This defendant admits that it and said Kearns-Keith Mining Com- pany gained access to said mining claims, beneath the surface thereof, and within the exterior boundaries thereof extended downward ver- tically, by means of certain underground work situated upon other property, then and now owned by this defendant and its prede- cessors in interest; but this defendant denies that said complainant 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 of the work- ings of this defendant. on or beneath the surface of either the said Conkling or the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0432%3A01. Public record. Not legal advice.