The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1914-04-02
A CELEBRATED CASE
TITLE OLYMPIA GROUP
MINING GROUND BA.
SIS FOR LONG DRAWN OUT
LITIGATION.

: Another step was taken last week
in the litigation between Clarence
Cunningham and A. G. kerns involv-
ing title to the Olympia group OF
claims on Nine Mile, which in one
form or another has been in the courts
for some ten years. The ground Is
considered very valuable and the var
ious stages Of the controversy from the
time the action was Instituted to the
present time form an interesting chap
ler in the history Of court procedure
in Shoshone county. Following Is a
condensed statement of the contro-
versy as shown by the court records:
How the Ground Was Acquired.
In 1901, Abner G.. kerns of Wallace,
being already Il part owner, entered
into written contract with Clarence
Cunningham under the terms Of which,
through their joint efforts, they were
TO acquire the entire title to group
of mining claims in the Placer Center
and Lelande mining districts, COM
monty known as the Olympia group,
originally located by the late Ed Elum,
md to form a corporation to be known
as the Olympia Mining company. to
work and develop the same. In short
time by proceedings in the probate
court, the outstanding title was secur-
ed and Mr.. kerns executed a declara-
ga title in his own name, whereby he
Acknowledged that he held this title
in trust for Il corporation to be formed
in the future and to be called the
olympia Mining company.
litigas on Begins.
Thereafter Mr. cunningham did
large amount of work and expended
some $4,000 for purchase money and
development, and few years later he
organized corp6ration called the
Olympia Mining company under the
laws of The state of Washington and
after the full corporate powers had
been completed, he required a convey
ance of the property. Mr.. Kerns re-
fused this demand and an action was
brought against him to enforce the
trust. District Judge Morgan, after a
trial of the merits, decided in favor Of
the corporation which was affirmed on
appeal. Later on rehearng, the SUI
preme court reversed Judge Morgan's
decision on the ground that Mr.. Kerns
was entitled to a corporation formed
under the laws of Idaho. There was
further litigation in the Idaho and
Washington courts, none of which fin
ally determined the controversy.
.. Incorporated in Idaho.
In 1909 Mr., Cunningham and his as
sociateS procured the incorporation of
the Olympia Mining and Milling COM
pary under the Idaho laws. Tenders
ana demands were then made for the
new corporation but Mr.. Kerns made
absolute refusal to all. Thereupon the
new corpora ton brought an action
against Mr., Kerns, to enforce this trust
in the district court here. The facts
were fully stated in the complaint, |
from historical standpoint, and Mr..
kcrns filed a demurrer to the same.
setting up as a defense, all of the stat
ttes Of limitation Of this state, and,
IN hearing, the demurrer was sustain
'd The corporation then appealed and |
he supreme court in September last, |
Dtlirmed Judge Woods decision.
Writ of Error Granted.
ON last Friday, Mr.. Chas. E. Miller, |
General attorney for the corporation,
md the Cunningham interests, present. |
ID the necessary petition to Chief JUS |
ice Ailshic for the allowance Of a
writ Of error from the United States
'uprenle court to the supreme court of |
daho to review the last decision
which was granted and the writ Of err
or WAS issued by the United States
district. court
1t is claimed by the mining corpora
ion that its rights, privileges and |,
Franchises were suspended and in
beyance between the date Of the de- +,
laration Of trust and its corporate l.
reation and that any statute Of limit
ton which computes that time and
)llS it in the running, impairs the OBJ j,
cations of the trust contract; and al
o that the statutes Of limitation, as IS
by the state supreme court.
re unconstitutional to the extent to =
hch they shorten the period of limi- lI
ltion, ard that the effect of the deci- a
ion is to take the property of the
iaintif in error without due process a
lazy
MAY Become Celebrated Case. ;