Show 1 CELEBRATED PARK CITY MINE CASE WHERE CONKLING SECURES ti FROM SILVER KING One of or the most hotly contested mm- mm in controversies contro ever h heard ard In Utah courts courts was wu that o of tho the Conkling against the Silver SlIver King Coalition at Park City in which last year tho the ConklinG secured a 3 Judgment of oC 2 This case i la Is now on appeal to tho circuit court and tho Judgment ju ment s drawing elra it is g understood S per cent interest In tho the 1918 annual report of oC the Silver King Issued last wiek tho the following account of oC the case Is given n nb advisers Dick Dick- by b the company's legal eon Ellis and Lucas Th They sa say This case was as originally commenced com corn b by Nicholas Trew-eele Trew and J. J L Leonard onard Burch in the United Stales s circuit court for tor the district of ot Utah In the year ear 1907 Thereafter Troweek and Burch conveyed eyed their interests In and Arthur mining claims the the thc Conkling to the Conkling Mining company and andIn In Ju July Jub 1908 an amended bill of ot complaint com corn plaint was 15 filed b by the Conkling Conklin Min Min- lInIng YIng Ing company compan setting up the cOn e conveyance ante b by and Burch to It The Sih Silver r King Coalition Mines company compon purchased an und undivided one-fourth one Interest Interest In Interest In- In terest In the tho Conkling and Arthur the Keith Kearns mining claims from tram Mining company In Jn May ny 1907 The Tho complaint of or the Mining Min Mm- tn ing company alleged ged Its ownership of oC three fourths of or the Conkling and that the tho defendant de tie- Arthur mining claims and and its predecessor tho the Kearns Keith Mining company compan had re removed removed reo re- re moved mO a largo large amount of ot ore from be beneath tle- tle o neath the surface a of the Conkling mining claim and sought an accounting account account- tn ing of ot tho the ore so removed The Tho CoalL- CoalL I t tSo tion h company answered the complaint setting up Its ownership to the tho custer No o. o 2 and Silver Hill No o. o 4 lode mining claims and alleged that t all of or the from beneath be beneath be- be taken taleen rom ores res taken by b It were neath the surface of said Custer No 2 and Silver Siler Hill No 4 I claims It also the set up as an additional defense that ores mined b by it belonged to a elthe vein el found in the the apex of or which was nas Brave Brac Columbia Constitution Cumberland Cumberland Cumber Cumber- land and Monroe Doctrine lodes lode The defendant further alleged that the Conkling Conklin lode 1010 mining claim as U mo I was Kas but 1364 on tho the ground I feet in length lenEth and not 1500 feet long longas as set forth In the patent It H appeared from the te testimony In tho trial of or said ald cause before Judge c Marshall without contradiction that the posts and monuments on the tho ground delimited the Conkli Conkling g mining claim II I as feet teet In len length th that the westerly west- west I erly erl end line of said sal claim was wa 15 3 I feet Thet short of ot the call in the tho I patent and that practically all o of the theore theore ore removed cd b by the Coalition company 1 It t II as 1 was taken from this foot strip also ap appeared ear d from the tho testimony that while tho patent for to the Conkling mining claim was nas as prior to that of or the Custer No o. o 2 and nd Silver Hill No io o. o 4 1 lode mining claims the said fald last named claims Jairns were prior in point of Jr location t to the Conkling mining claim and that both the Custer No 2 and Silver Hill Ulli No o. o 4 had been patented covering a large portion of or the foot strip and that the claims as patented contained all o of the ore in AP Apex x Ai l r rs Prominently from the tho It also appeared I that the ores in controversy contro were part art of af the Crescent fissure vein whoso whose apex was nas found in tho the four mining claims above e mentioned Judge udo-c Marshall upon the trial of or the case held that tho the monuments monument on the ground round controlled the position of ot the Conkling mining Claim lalm and that the 1 t lr U CI i nr nn n rt nf At said claim ii but b was wan p part t sa of the said Custer u t No o. o 2 and Silver Hill No 4 ITo IIo also held that the ore in dispute belonged to and was part of or the Crescent fissure vein and that tho the apex of oC this was as within the four tour claims above mentioned mentioned men men- 1 and that tho the defendant b by vir Ir virtue virtue vir- vir tue of its rights had the right to follow that vein rein throughout hout Its Hs entire depth so co as ns to embrace tho the ore are bodies in dispute and therefore had the right to mine and md extract the ores In controversy ers Judgment was ivaa therefore rendered in favor of ot the Coalition company and against as the Conkling company The Tho Conklin company took an ap appeal appeal lP- lP peal cal to the circuit court of or appeals for tor forthe tho the el eighth circuit both on on tho the question of oC boundaries and anti rights The court of or appeals after holding the case under advisement ad for more than two years ears rendered an opinion I lug Irig tho the findings of Judge Marshall and I holding that tho the on In the ground were not controlling in the case caSP of or the tho Conkling patent paten and that re recOUrse recourse recourse re- re course could not bo be had to the field notes of or the survey urey of ot the ConIIng claim to ascertain where tho the monuments ments on the tho ground were placed at the time of ot tho the official survey sUr and ard that the Conklin claim being described In Inthe Inthe Inthe the patent as 1500 l OO feet in length by feet teet in width the 1 5 foot toot strip was part and parcel of or that claim as patented and that so 80 far as the tho question of or boundaries was concerned cn con three-fourths three of all ores within the tho Conkling claim as described d in 1 the patent belonged to and were the property prop pro erty of the Conkling Mining com company The court of or appeals also decided that while It was true that the ore bodies In controversy were part of ot the thc Crescent fissure vein and that the apex of or that vein vain was WIS found in tho the four tour in mining min InIng In- In ing InS claims above mentioned still the tho defendant had no extra lateral rights upon the Crescent fissure because this vein crossed the opposite side lines of or each of ot said claims and that there therea was as asa a a. presumption of f law that at the re re- re points of or discovery dIsco of or each of or orthe the four our claims above mentioned thoro was a a. vein oln which was the original discoverY discovery dis die covery vein of f said claims claim respectively ely rc and that such vein coursed parallel to the side lines of or said claims respectively respective and that the affirmative affirmative af at- af- af e evidence adduced by tho the de defendant de- de company that there was no such Buch vein eln or lode in either of or said Raid claims at either of ot the tho points of discovery or elsewhere jy ln in either of said Mid claims was WM insufficient to overcome such legal presumption Tho The court of appeals having arrived at the conclusion that uch such legal presumption re had bad not been overcome o the right was confined d within tho the end line planes pianos of or the sever several l locations and th the defendant had bad no ne right to follow tb therefore the Crescent vein eln be beyond he- he yond ond the end lines of or said claims The Tho testimony showed without contradiction tion that at nt tho the point of discovery of ot each of or said four tour Claims there was waa no vein whatever er coursing In any direction direction I tion and that tho only known vein ex existing ex- ex upon said claims or either of or them wa was wad the said Crescent ure vein ein the apex o of which was within these claims Court Renders Render nil fig Jn derm cut The court of appeals having Ing reversed re tho the Judgment ment of or Judge Marshall Marahall di directed di- di reeLed that an accounting bo be taken of ot l the value of ot the ores removed remo by b the of oC defendant from beneath toe the surface tho the mining claim as de described do- do scribed in tho the patent Such accounting was had before his honor Ju Johnson who rendered Judgment judgment judgment Judg judg- ment against tho the Coalition company In the Ule sum of 59 The Tho defendant I dant took an appeal from toni the tho Judgment did also rendered by b Johnson as ns the plaintiff InS tho the circuit court In December of or appeals filed an opinion modifying the decree made mado by Jud Judge o Johnson b by adding thereto the tho sum of ot The defendant dr thereafter filed I a petition for reb rehearing in the tho circuit court of oC appeals appeals ap ap- al- al peals which petition is still pending and of In the petition for rehearing tho the defendant asked aske 1 the court of ot appeals to corr correct ct a l palpable error in computation Should this petition pe pe- pe corrected cor cor- and tho the error be granted be to would effect the only cut the jud judgment down some ome An application will then them be made to the the supreme court of the United States for forthe forthe certiorari to the issuance of a writ of or the circuit cult court of or appeals to send up for review re tho the entire record It is not a matter of right to have the tho case reviewed in tho the supreme court but It ItIs Itis itis is discretionary with that court to grant rant or refuse a writ of certiorari Counsel for tor your our company arc are hopeful hopeful hope hope- ful Ui that the supreme court will grant this writ A petition for this writ has already been prepared and printed and tho the briefs thereon prepared so that when tho the court of or appeals shall pass upon tho petition for or rehearing no time timo will be lost in presenting the matter to the supreme court of ot the th United States Should the writ of oC certiorari cor- cor bo be issued wo foci feel quite quito confident confident confident dent that a n. modification or reversal of or tho the decree of the circuit court ot of appeals will ho bo ha had as in our judgment judgment judg judS' ment the decision of the circuit court Df or appeals both as 3 to the question o of I boundaries as w well Il as I rights Is ls erroneous erron ous and has resulted In great Injustice to your our company Wo We are attaching to this letter a small map showing the Conkling min min- ln ing ng claim the 1355 foot toot strip and the four our mining claims in which Is found the he apex o of the tho Crescent fissure vein Yom this map you can readily l' l se see ee what the contentions of ot the respective parties arties are arc |