Amador ledger. (Jackson, Amador County, Calif.) 1875-19??, 1901-02-01
keystone VS.. SOUTH SPRING HILL
ACTION DISMISSED FOR WANT
OF PROSECUTION.
The Case Came Before Superior Court
of Calaveras County and De
cided Finally.


Company, plaintiff, VS.. South Sgring
Hill Mining Company, defendant.
ON MOTION TO DISMISS THE ACTION
FOR WANT OF PROSECUTION.
The plaintiff aud defendant are the
owners of adjoining quartz mines in
Amador County, California. The com
plant alleges that the defendant corpo-
ration has, by means OF its underground
works. entered upon plaintiffs mine
and removed thereTrom large amount
of ore which il mas appropriated to It's
own use. That the ore so taken by de-
PENDANT, was taken from veins which
have their apeXes within the lines of
plaintiffs surface location. The ore so
removed by defendant is alleged to be
y 200. 900 tons and its value is stated at
two millions or dollars.
4 The defendant denies any intentional
trespass, but admits that it did, in the
year 1890, inadvertently enter into
plaintiffs ground and did unintention-
ally and without Knowledge that it was
trespassiug upon plaintiffs ground take
out eighty tons Of quartz rock of the
value of two hundred and seventy-two
dollars
The defendants motion to dismiss
the action came on for hearing on the
of October, 1850, and was heard on
affidavits presented by the respective
parties.
From the affidavits of A. q. Adams,
G. A. Adams, j. NJ. Wright aad F. J.
Solinsky, the aitorpeys for the defend
ant, as well as from the pleadings and
papers on file in the cauS', it appears
that the action was commenced in the
Superior Court of Amador County,
California, the original complaint hav-
ing been filed on the Sth day OF June.
1893, and summons ISSUED aud served
on the same day. On September 20,
1893, the defendant filed its answer.
On September II. 1894. plaintiff, by
leave of the Court, filed au amended
complaint aud on the 1th day Of
February. 1925, the defendant fled its
answer TO said amended complaint.
On April 3, 1896. the Superior Court of
Amador County made an order trans
ferring the cause to this Court for trial.
Thereafter, certain motions to strike
out portions OF plaintiffs complaint
and of defendants answer came up for
hearing and were finally disposed OF by
this Court on July l6 1896. That since
said last mentioned date the case has
been at issue, but that the plaintiff has
taken no steps 10 bring it to trial.
That neither the defendant nor any of
its attorneys have ever consented to
this delay, nor has the plaintiff ever
asked or requested of them to consent
to such delay. That one of the persons
whom defendant would have called as
a witness on the trial of this cause, and
whose evidence would have been
material to the defendant, has died
within the last three years.
It appears further from the affidavit
OF J. r. Tregloau, the Superintendent
and Managing Agent of the Defendant
Corporation, WHICH was also read in
support of defendants motion, that
within the last three years five of de-
PENDANTS witneSSesI-~w hose testimony
would have been material to defendant
on the trial of this action, have died,
and others of its witnesses whose testi-
mony would have been material, have
become so scattered that it is doubtful
If they could now or hereafter be found
should the case be called up for trial.
That one of the witnesses who died is
John Venning, who, in his lifetime, was
foreman of the defendants mine.
The defendants motion to dismiss
the action was filed on the 9th day of
August, 1900. 1t thus appears, that
from the date the pleadings were
finally settled-July Is, 1S96-to the
time defendant filed its notice of motion
to dismiss-August q, 1904 period
of four years and six months, no steps
we're taken by the plaintiff towards
bringing the case to trial, and that the
delay was not caused by any act of de-
PENDANT nor was it consented to by the
defendant or any of it's attorneys.
Unless then, the plaintiff has shown a
good and sufficient legal excuse for it's
apparent laches in failing to bring the
action to trial, the Court would un-
doubtedly be justified in ordering it
dismissed.
Grisby VS. Napa County, SO Cal, 585.
Simmons VS. Keller, so Cal. 38.
Landers VS. Flemming, Al Cal. GA.
Kubi VS. Hawkett, SO Cal. 638.
Kries VS. Hotaling SO Cal. 1888.
First National Bank VS. Mason, lis
Cal. 62e.
Mclaughlin VS. Glausen. 116 Cal. 4S7.
In opposition to defendants motion
to dismiss, plaintiff has read the atfi-
davits of ]. F. Parks, J. B. Treadwell,
w. A. Prichard and Fl. j. Mcdonald
by which it claims to have shown good
cause and legal excuse for its delay in
bringing this action to trial. Whether
or not this contention is correct, must
depend upon the facts as shown by
these affidavits, and these | shall now
proceed to consider.
Parks testifies that he was foreman
of the keystone mine from 1873 to 1887,
and that he then became Superintend-
ent of the Kennedy mine. That in
ha ht, ha
plaintiff Corporation as to the ad VISA
bility of making an upraise at the south
end of the South Spring Hill and
Geneva mine. and advised plaintiff to
do so, and was given charge of the work
and was paid one thousand dollars for
his services, He further says that he
advised the plaintiff to run drift south
on the eight hundred level to prove the
continuity of plaintiffs veins on which
that upraise was made and that the
drift was made as he advised.
J. B. Treadwell testifes that in
October, 1896, he became Superintend-
emit of plaintiffs mines and continued
as such until May, 1897; that while
such Superintendent, he commenced
the making of drift on the eight hun
bred level from the Patton shaft to the
North end line of the South Spring
Hill mine, and that in May, 1898, said
drift had been driven to point about
$50 feet North of the North end line of
the South Spring Hill mine. That the
rock was very hard, and the running
of the drift slow and expensive work.
That the drift was run for the purpose
of proving that the work done by the
defendant corporation at their seven
hundred and eight hundred levels, had
been done on veins outcropping in
plaintiffs ground: that since the COM
inencement of this action up to Nav.