The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1909-06-29
LEAVE TO AMEND
DENIED BY COURT
Judge Marshall Renders De-
cisiOn in COnkling Company
VS.. Silver King.
PLAINTIFF MUST STAND
ON ORIGINAL COMPLAINT
Reasons for the Ruling Are Set
Out in Full by His
Honor.

Judge John A. Marshall Of the United
States court denied the application Of
tho ConkIing Mining company for per
mission TO file an amended bill In the
case of the Conkling Mining company
against the Silver King Coalition com
pany in the United States court Monday
morning
When this suit was hlcd by the CoDk
ling Mining company they alleged that
they were co.tenants with the Silver
King Coalition Mines company. They
also alleged that they were the pre-
decessors III the claims of the Conkllna
company, owning three-fourths, While
the Silver King Coalition Mines com
pany owned the remaining one-fourth.
Set forth IN the original complaint was
what was thought TO be correct de-
scription of the Conkling claim, and
il was alleged that the Silver King
Coalition Mines company had extracted
ore from this ground which was valued
at more than 81 600 900. The Conklng
Mining company claimed that three
fourtbs Of the net returns from this ore
belonged to the Conkling company.
When the Silver King Coalition com
pany. which was the defendant IN the
suit, flied it's answer 10 the complaint,
The answer denied that the description
given in the complaint was correct, and
set forth what the Silver King Coalition
Mines company purported to be true
description OF the property, which de-
scription fixed the west end OF the
Conkling claim 1853 feet east of the
point which was designated by the
Conkling Mining company as its west
I 8, ,,,1,
was taken from the mine and which
was the original basis of the suit, was
taken from the ground within this 1850
feet OF the end OF the claim. Judge
Marshall in his decision DENYING the ap-
Plication; says:
Decision of Court.
The application is made for leave TO file
an amended and supplemental bill, 10
which the defendant objects The plain
mon OF the Conkling mining claim BY
the original bill the plaintiff contended
Chat the defendant, as such tenant In
common, had extracted a large amount Of
ore from the Conkling claim. and an ac-
counting was sought The defendants ad-
mitted the co-tenancy, but denied that
they had taken profits from the ore and
further denied that the Conkllng claim
correctly described In the bill.
that &c includes the southwest 1855 feet
uf The premises described. TO which
pITtIOR 1Ee GSlsHla9lS C.1ltGi exclusive
lite by virtue !of its ownership OF the
custer No. and the Silver EIii No.
claims.
By its proposed amended bii! the plain
tit asserts the right TO hold the defe ndant
as Its trustee in the purchase OF the last
named claims TO the extent Of the plain
airs ownership in common with the
Couk!ing claim. and subject TO the pay
inent of like proportion Of the cost to
The defendant OF the purchase on the
ground that the relation Of trustee exist
ing between the co-tenants OF the Cong
ling claim precIuded the defendant from
requiring an outstanding title 20 a part
II the common property TO the exclusion
y co-tenant willing TO join In the pur
chase.
The gist OF the controversy, as al
legged in the proposed Dill. appears 70 be
this: All OF the claims named have been
patented. but the Conkling claim Is the
ling claim is described by metes and
bounds embracing paralleloSram 1500x
GOO feet in size.
Defendants Contention.
The defendant contends that when this
description Is applied TO The ground. that
instead OF being 1900 feet in length the
claim Is only 1364.5 feet in length. avd
that the interest in common is limited 10
This length OF claim. 1t Is not alleged
that the plaintiff and defendant have ever
heen In actual possession Of the remaining
i35.5 feet under tho ConkI;ng title but
on the contrary, It is affirmatively
SiiNb ti4a iuc purchase OF the Custer
No. ? and the Silver Hll No. was prior
10 the discovery % ore In those claims
inc patent TO the Conkling claim as so
patented. and the Custer No. 2 and the
Silver Hill No {. belongs TO the CO.
tenants, not because OF any ownership in
the latter claims, but because of Der-
fect title To the ConIlling The patent
did not convey good title to n part and
a color of title to the balance OF the
claim. When a written conveyance ia
claimed as the source Of color OF q title
toe land affected must be ascertained by
the same rules as II the title were good
Equally in each case il js a o,1estion
what land is in fact described In the
instrument. and jn each case tho er
pressed intention OF the parties control
and as means of ascertainine the snr,n
me rule IS that courses and distances
EiEe way To DXed monuments
80 that IL the plaintiff be correct IN TIE
contentlon that the Consling as patented
covers rhe disputed 1855 fest II afffrroa
'ively aPpears that the defendant did NOT
ana could not acquire any superior title
'nereto; and II wrong as 70 the eYfenf
or The Conkling patent, Il rnust further
snow some other basis for the TENANCY
IN common. 'cS
Since the proposed amended Hill Fails
10 snow such basis It falls TO present srrs
materlel matter not presented bv The
29rTlg1nei oil. and leave TO file the amended