The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1909-06-29

KING COALITION
WINS A POINT
Application of ConkIing Mining
Company to File Amend
ed Complaint Denied.

The Silver King Coalition Mines COM
pany has won a point in the scrap that
is on in the federal court with the
Conkling Mining company and Nicholas
Treweek. Following the recent death
Of w. c. Hall. the COnkling company's
attorney, his successor in the case,
asked permission of the court to file
an amended bill one that went into
more detail concerning the boundary
lines and location Of the ground owned
in common by plaintiff and defendant.
because the answer to the original COM
plant cOntended that the ore for which
plaintiff had asked an accounting was
mined largely in the western 1855 feet
of the COnkling claim, a portion of the
ground covered by another claim in
which plaintiff owned nothing. Judge
Marshall has denied the application for
reasons expressed in the opinion handed
down yesterday, as follows:
The application is made for leave to
file an amended and supplemental bill,
TO which the defendant objects. The
plaintiff and defendants are tenants in
common of the Conkling mining claim.
BY the original bill the plaintiff con-
tended that the defendant, as such ten
ant in common, had extracted a large
amount of ore from the Conkling claim,
and an accounting was sought The
defendants admitted the co-tenancy, but
denied that they had taken profits from
the ore. and further denied that the
COnkling claim was correctly described
in the aDill or that it includes the
southwest 1855 feet of the premises so
described, to which portion the defend
ants claim exclusive title by virtue of
its ownership OF the Custer No. ? and
the Silver Hill No. claims.
re- 81 he
plaintiff asserts the right to hold the
defendant as its trustee in the pur-
chase of the last named claims to the
extent of the plaintiffs ownership il
common with the Conkling claim, and
subject to the payment of a like pro
portion of the cost TO the defendant
of the purchase; on the ground that
the relation of trustee existing between
the co-tenants of the Conkling claim
precluded the defendant from acquir
ing an outstanding title to part of
the common property to the exclusion
of a cO-tenant willing to join in the
purchase.
THE gist of the controversy as al
legged in the proposed bill appears to
be this: All of the claims named have
been patented but the COnkling claim
is the senior patent. In the patent to
the COnklin6 the claim is described by
metes and bounds as embracing a paral-
telegram 1.5O0x600 feet in size.
The defendant contends that when
this description is applied to the
ground that instead of being 1850 feet
/ in length the claim is only 1.3645 feet
| in length. and that the interest in
common is limited to this length Of
claim. It is not alleged that the plain
tiff and defendant have ever been in
actual possession of the remaining 1865
feet under the COnkling title. but, on
the contrary, it is affirmatively aveTred
that the purchase of the Custer No. ?
and the Silver Hill No. 4 was prior to
the discovery of ore in those claims
The patent to the COnkling claim as so
patented and the Custer No. and
/ the Silver Hill No. 4 belongs to the
cO-tenants. not because of any owner
ship in the latter claims. but because
of a perfect title to the Conkling. The
patent did not convey good title TO a
part and a color of the title to the bal
anCe OF the claim. When a written
conveyance is claimed as the source of
color of a title, the land affected must
/ be ascertained by the same rules as if
the title were good. Equally in each
I case it is question what land is in
/ fact described i'm the instrument, and
in each case the expressed intention of
] the parties control. and as d means of
/ ascertaining the same the rule is that
courses and distances give way to fixed
monuments
so that if the plaintiff be correct
/ in its contention that the Conkling as
| patented covers the disputed 1855 feet
| II affirmatively appears that the de
1 PENDANT did not and could not acquire
any superior title thereto; and if wrong
as to the extent of the ConlIing pat
[ emit it must further show some other
/ basis for the tenancy in common.
Since the proposed amended dill
| fails to show such basis, it fails to
( present any material matter not pre-
/ scented by the original bill. and leave
/ to file the amended bill is denied.