Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1874-05-30

ment with the $50, ,OOO, 900 and 10 nor
cent. thereof actually paid in cash, and
that plaintiff, on November 29th. 1880
exercised its option that the agreement
should cease. Due notice of such ier.
minatiOn was given to defendants. and
the agreement did cease and BECOME of
no effect.
On November Goth, 1860, the Sutro
Tunnel Company Incorporated under
the laws of the State of California. hay-
ing its principal place of business in
San Francisco, the objects of which
were to avail themselves of the act of
the Legislature Of Nevada. Shortly
after this incorporation, Sutro and his
associates conveyed to the Sutro Tun-
mel Company all the rights, privileges,
franchises, and property claimed under
fendant.
Plaintiffs aver that the corporation
defendant has failed to perform the
promises i'll the agreement, and that
the eighth year from the passage of the
act has expired, and not one tenth of the
work has been done. From present
appearances and prospects the whole
will not be completed in eight wears
more. 1t is avcrred that in the agree
ment time was made the essence of the
contract, and that plaintiff did deter
mine and does now again exercise its
option to close the agreement and for
bid any more work to he done upon
the tunnel or shafts, under the agree
| ment.
1t is averred that upon the failure Of
defendants to fulfill their agreement,
and on becoming satisfied of their ina
bllity i'll the future to perform the work,
plaintiff prosecuted its business with
out reference to the agreement, and by
other means has secured the objects
nterdcd to he secured by the tunnel.
That it has got rid of the surplus water
in the mine, and secured other means
for drainage and ventilation. 1t has
procured expensive machinery for
hosting and other purposes at great
expense, and that the works of the
mine have long since reached depth
far below the level Of the contemplated
tunnel.
BY reason ofthe great delay in prose-
cutting the work, plaintiff AYERS that
mills have been built at places more
convenient to the mines on the Com
stock lode than the mouth of the pro-
posed tunnel, with railroads to carry
the res from the mines to the mill;
ings OF the mines have been materially
changed since the agreement was
made; that if the tunnel should be
completed it will he of no Use to plain
tiff for drainage or ventilation, or for
any other contemplated purpose.
1t is averred that the small amount
of work already done was done upon
defendants own ground, which is USE
less to and never can be of any benefit
to plaintiff s ground but that it enables
the defendant corporation to prosecute
its business Of discovery and develop
ment of new lOdes, and the drainage
and ventilation of the same. 1t is
claimed that the work has been done
almost entirely since plaintiff elected
to annul the agreement.
Plaintiff AYERS that the agree
ment remaining uncancelled TIN lows a
cloud upon its mine, and it is an ap-
parent lien thereon; lessons its value,
and tbstrllcts any sale, lease, or hy
pothccation, and eudangers future liti-
CATION.
Wherefore plaintiff prays that the
agreement be adjudged to be rescinded,
and that the same be delivered up and
cancelled; and that it be adjudged that
plaintiff holds its mine free and clear
of the agreement; also for Il release
OF the alleged lien on the mine of
plaintiff, and that the defendant cor
poration be enjoined from asserting
any right, title, lien, or claim to or
upon plaintiffs mine by reason of said
agreement.
Appended to each complaint is at
tached copy of the act OF the Legisla
ture of Nevada; also, the agreement of
| the SutrO Tunnel COmpany with the
| several plaintiffs in this case, which is
signed BY the individual defendants.
1t is stated that additional complaints
| Of the same character. mum mbering twen-
~ in all, will soon be filed.