Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1897-10-15
WASHIN 5TON MINE CASE.
Reasons Given by Judge Hamilton
for demanding same for
New Trial.

ne CASE Oh HeAIy LOoRnarG, pldlntlD
in error, vs.. 10. Wills Ell al, defendants in
error, recently passed upon by the Terri
torial Supreme court, is of more thar
ordinary public moment because it in.
wolves the title to the immensely valuable
Washington mine in the Oochiti mining
district.
The opinion of the court, remandipg
the case for new trial, was handed dowr
by Justice Fl. B. Hamilton and was con
Cured in by Chief Justice Smith ant
Associate Justices Laughlin and Bantz
Judge II. l.. Warren argued the case fol
the plaintiff in error and Hon. W. B
Childers represented the defendants II
error.
In his opinion Judge Hamilton says
"Ths is suit 10 ejectment brought here
from the DISTRICT court of Bernalillc
county in the Second Judicial district
At the conclusion of the evidence, the
court, at the instance of the defendants
directed verdict in their favor. From
this action Of the court, in giving such
instructions, and taking the case from
the jury, this writ of error is prosecuted
The errors assigned are that the court
erred in refusing to submit the cause &c
the jury, and in excluding certain evi
denoe offered by the plaintiff and in ad
hitting certain evidence on behalf of the
defendants.
Judge Hamilton holds that the evil
dence justified the submission OF the
case to the jury. He says: "The
testimony offered in the case, and sub
mitted by the court to the jury, tended to
establish that the plaintiff, one Charles
Pilkey, and one Benjamin johnson, en-
tered into a written agreement signed
and executed by each of them, on the 9TH
day of May, A. D., 1898, whereby it was
agreed that the said first party, Charles
Pilkey, should prospect for and locate
such veins, lodes and placers as he might
discover or know the existence of, con
tainlpg valuable ores and minerals, in the
name of and for the joint benefit of all
the parties hereto, in the proportion of a
one-third interest to said first party,
Charles Pilkey, and an undivided two
thirds interest to said second parties,
being the plaintiff and the said Johnson.
1t was further provided in said agree
ment, that the said second parties, to-
wit: the plaintiff and said Benjamin.
Johnson, should furnish certain supplies
ard material to the said Pilkey while be
was engaged in prospecting, locating and
working said mines, which was fully set
forth in the agreement. The execution
of this agreement is admitted by both
the plaintiff and the defendants. It is
further established by the testlm ony, that
under this agreement the said Pikey,
after having received his supplies from
the plaintiff and the said johnson, went
into the CochitI mining district and 10
Gated certain mines therein, among which
is the claim in controversy IN this suit
known as the Sampson location. 1t is
established by the testimony, both by the
plaintiff and the defendants, that this
location of the Sampson mine was made
on the 10th day of July, 1898, by posting
a notice in conspicuous place upon said
claim, containing a description of the
grounds located, and signed by the plain
tiff, Ben jamin Johnson, and Charley Pill
key The evidence also tended to show,
that the plaintiff In this cause, and the
said Benjamin Johnson complied with
ftneir part of the said agreement by
furnishing the supplies and material to
the said Pilkey while he was engaged in
such work of prospecting for and locat.
ing said property"
In substance the judge contends that
the testimony of the plaintiff tended to
establish that he visited said property
after it was located and did some pros.
pecting thereon; that he arranged with
Pilkey to do the assessment work; that be
assayed the ore; that he gave Pilkey d.
rections from time to time; that Pilkey
was on the ground and it was understood
would do the work as agreed; that he
never intended to abandon the ground;
that he continued in possession thereof
until it was taken possession of by the
defendants. This testimony is sup
ported by that of another witness.
The contention of the defendants is that
the plaintiff did not do the equired as
sessment work, and had abandoned the
claim when it was located by them. They
also contend that the claim was never
properly monumented by the plaintiff
that after the 80 days had expired Pilkey
notified the plaintiff that he would have
nothing further to do with the property,
and would abandon the contract.
The main question at issue, Judge
Hamilton holds, was whether the claim
was really abandoned by the plaintiff as
represented. This was question of fact
for the Jury. The action Of Pilkey in
regulating the contract ''woud not neo-
essarily be construed into an abandon
ment of the property by the plaintiff"
Hence it was error for the lover court to
direct verdict.
Touching the exclusion of certain tes.
timony Judge Hamilton notes the conten.
ton, and the evidence in the support
thereof, that Pilkey, while tenant in
common with the plaintiff, entered into a
fraudulent conspiracy with one Fagaly,
one Walker and other defendants to OBJ
tain possession of the mine, and that as
result of 'this fraudulent collision" Pill
key and the other defendants ousted the
plaintiff from possession of the mine.
The court holds that the evidence Of.
fered in support of this allegation was
improperly excluded. Both of the errors
assigned being sustained the case is re.
manded as azores aid.
For nice breakfast bacon or sliced ham
on tn RiaHhr If g. Mullar