Amador ledger. (Jackson, Amador County, Calif.) 1875-19??, 1901-02-01

in its i've hundred and SIX hundred
levels That since he has been en-
ployed at plaintiffs mine, the work of
driving the eight hundred level and
making the raise has been continuously
and diligently prosecuted. That the
cost of the work was not less than seven
dollars fer foot.
NJ. J. Mcdonald makes affidavit that
he is the President, General Manager
and Treasurer of the plaintiff corpora
ton. That at the commencement OF
this action he was advised that it was
necessary to prove by development
made in the ground, the allegations OF
the complaint, that the operations OF
the defendant corporation were made
entirely on a vein having its out
groupings within the side lines oil the
Keystone mine, patented, and that the
ore removed by the defendant from the
South Spring Hill mine had been taken
from veins having their apexes within
the mining ground owned by plaintiff.
That to prove these facts, he caused to
be made over four hundred feet of
drift South on the five hundred level,
over eleven hundred and forty feet of
raises from the five hundred level to
the surface: over one hundred feet of
drifts north; fourteen hundred and
fifty feet of drifts south and three hun
bred and eight feet of raises from the
eight hundred Lowell and a great many
hundred feet of crosscuts and work
connected with said drifts and raises.
That all this work has been continu-
ously prosecuted since the commence
ment of this action, to the full extent
of plaintiffs resources; That plaintiff
has been frequently financially en-
barrassed by the amount of this kind
of work it was compelled to do; That
only within the last two weeks con-
nection was made with the works of
the defendant-many feet north of the
North end line of the South Spring
Hill mine, and on plaintiffs ground.
The plaintiff has been frequently
hindercd in the prosecution of its said
development work by reason of tho
water being allowed. to rise in defend
ants mine; That plaintiff has, at all
times, prosecuted said work to the full
extent of its financial ability and has at
no time sought TO delay the trial of this
action; That plaintiff has expended
twenty-five thousand dollars in doing
this work; That in 1894, plaintiff recon-
structed its entire forty stamp battery,
and just as it was completed in January
1895, the mill was destroyed by fire and
that there was no insurance on the
property; That plaintiff was compelled
to rebuild the mill and mill buildings
and replace large portion of the ma
chinery; That owing to the stringeney
| in the money market at, and for many
years after the commencement of this
action, it was almost impossible to bor-
row money, and plaintiff found it diff
cult to provide the money necessary to
do this development work; That it is
necessary for plaintiff to prove by
actual exploration the continuity of its
vein from its groupings down to the de-
| PENDANTS works.
When plaintiff rested. the defendant
| read in evidence counter affidavit of
j. r. Tregloan, in which he disposes
that he is the Superintendent OF de-
| PENDANT and has had entire charge of
all the work done In defendants mine
since its incorporation; That he is
familiar with the keystone mine and
with its works, having frequently been
in the mine and inspected the work;
That he is acquainted with the ground
and formations in and through which
the shafts drifts. upraises, crosscuts,
and wines, mentioned in the affidavit
of NJ. j. Mcdonald, have been driven
and made; That the upraise of seven
hundred and forty feet was finished in
the month of February or March, 1896;
That he is practical quartz miner of
twenty-eight years experience and dur
| ing that time he has run and superin-
| tended the running of over sixteen
| thousand feet of drifts, of which ITO
feet were run in the South Spring Hill
| mine, 2400 feet in the Talisman mine,
1850 feet in the Grover mine, 500 feet
| in the Pochontas mine, 1000 feet in the
North Star mine, 1000 feet in the
Potosi mine and 1000 feet in the Cosmo-
tended the making of 5000 feet of up
raises in this and other mines which ehe
| names, all of them in close proximity
to and in the same mineral belt as the
keystone NINE Affiant further SAYS
that in his judgment, as a practical
miner, an ordinary force of miners
should have done all the work mention
ed in the affidavit of Mcdonald in less
| than two years and half, and gives in
detail the number of days which should
be sufficient to perform each piece of
work mentioned in the affidavit.
1t is apparent that plaintiffs con-
| tentiOn is, that in order to prove its
case, that the veins from which de-
| PENDANT is charged to have taken the
| rock, have its apexes within its (plain-
tiff's patented location), it was COM
PEELED TO perform the work mentioned
in these affidavits, and that if it pros
ecuted such work with such diligence
as its financial circumstances permitted
it should not be held guilty of laches
| in not bringing this action to trial so
long as such work was not completed
Upon this theory all plaintiffs aft
davits are predicated. Can this con-
| tention be maintained? Leaving out
of consideration the affidavit of Treg-
loan stating that all the work done by
the plaintiff up to the present time
could have been performed in two and
one half years. will be argued, and if it
should be, could authorities be found
to sustain such argument, that when
| plaintiff commenced an action, charg-
| ing defendant with having committed
a willful treSpasS upon his mining
property and fraudulenty appropriated
to his own use large amount of gold
bearing rock, he can, under pretext or
claim of obtaining evidence to prove
| his case, let the action rest for four and
half years, and that when defendant
moves to dismiss the actiQn for failure
to prosecute it, he could be successfully
met by the assertion that the plaintiff
had not yet completed his work and
was not therefore guilty of laches for
not bringing the cause to trial. If
plaintiffs contention is right in this
case, it would be right if ten years had
elapsed instead of four and half years,
since issue was joined, for it might take