Whalen Consol. Copper Mining Co. v. Whalen

• Decision Date: 04 January 1904
• Docket Number: 753.
• Citation: 127 F. 611
• Parties: WHALEN CONSOL. COPPER MIN. CO. v. WHALEN et al.
• Court: U.S. District Court — District of Nevada

127 F. 611

WHALEN CONSOL. COPPER MIN. CO. v. WHALEN et al.

No. 753.

United States Circuit Court, D. Nevada.

January 4, 1904

Cheney Massey & Smith for complainant.

Alfred Chartz, for defendant.

HAWLEY District Judge (orally).

There is but one question to be determined in this case: Did complainant perform the annual assessment work on the 11 mining claims involved in this suit for the year 1901, as required by the United States statute (Rev. St. Sec. 2324 (U.S. Comp. St. 1901, p. 1426))? The burden of proof to establish a forfeiture of the mines by failure to do the work is upon the defendant. The proofs offered by him consist of measurements of the work done by complainant, and the opinions of witnesses as to the amount of days' labor necessary to do the work, and as to how many tons of earth, rock, and ore, or number of feet, could be removed by one man per day. And the conclusions reached by the witnesses on these points were that the cost of such labor and expenses would not exceed $500. On the other hand, it appears from the testimony on behalf of the complainant that in 1901 the property herein involved was in litigation in the circuit court of Cook county, Ill., the defendant here being the complainant in that suit, and the complainant here, with others being the defendants; that a receiver was appointed by that court to take possession of the property herein involved; that, at the request of the complainant (defendant in that suit), an order was made, pending the proceedings therein, authorizing and directing the receiver to borrow $1,500 for the purpose of preserving the property herein involved, by performing the annual assessment work thereon for the year 1901; that this money was obtained by the receiver, and expended for that purpose; that his report was presented to the court, and, it appearing to the satisfaction of the court that the annual assessment work had been done as required by law, the court made an order approving the report of the receiver. This action of the circuit court of Illinois, of itself, makes out a prima facie case in favor of the complainant. In addition thereto, a witnesses were introduced on behalf of complainant-- among others, the foreman who had charge and direction of the work-- as to the amount of work performed the number of men employed, the time they worked, the amount of work done, and the places on each claim where the labor was performed. The foreman testified that, with but two exceptions, the men employed were skilled miners, and performed faithful labor. The witnesses on behalf of complainant...