This is a writ of error to the circuit court of the United States for the district of Colorado to review a judgment of that court sustaining a demurrer to the 'second amended complaint' filed by the Glacier Mountain Silver Mining Company, plaintiff in error, against J. Frank Willis, Charles Buckland, and Donald M. Frothingham, defendants in error, which complaint is in the words and figures following, to-wit: 'For second amended complaint the plaintiff complains and alleges that it is a corporation organized and existing under the laws of the state of Ohio, and is a citizen of the state of Ohio; that the defendants are and each of them is a citizen of the state of Colorado; and that the property in controversy exceeds the value of $500. Plaintiff further alleges that on the 21st day of June, 1865, one Joseph Coley and one George C. Reeves, each being citizens of the United States, went upon the public domain of the United States theretofore wholly unoccupied and unclaimed, and located, on said day, a tunnel and tunnel site at the base of Glacier mountain, in Snake River mining district, county of Summit, state of Colorado; that afterwards, and on the same day, they marked the boundaries of their said location, and commenced to run a tunnel into said Glacier mountain, and, after fully complying with the laws of the United States, the laws of the state of Colorado, and the local rules and regulations of the said Snake River mining district, they caused to be made out and recorded in the recorder's office of the county of Summit, aforesaid, a location certificate of said tunnel claim, which said certificate described the location and boundaries of said tunnel claim; that, from the day of said location until the ouster hereinafter set forth, the said locators of said tunnel claim and their grantees remained continuously in possession of said tunnel claim, working and mining thereon, and have expended thereon more than the sum of $5,000; that the plaintiff is the owner of the said tunnel claim, above described, by location and purchase, and is now entitled to the quiet and peaceable ad exclusive possession thereof, by virtue of a full compliance on its part, and on the part of its grantors, with the laws, rules, and customs above set forth; that the plaintiff and its grantors have been in the peaceable and undisputed possession of said tunnel claim, by virtue of such location, occupation, pre-emption, and record, for more than five years prior to the ouster hereinafter complained of; that plaintiff and its grantors, for more than five consecutive years prior to the acts of the defendants hereinafter mentioned, paid all taxes legally or otherwise assessed upon said tunnel claim, and have worked and mined the same from said 21st day of June, 1865, up to the time of the acts of the defendants hereinafter set forth; that the said tunnel claim, so located, embraces many valuable lodes or veins which have been discovered, worked, and mined by the plaintiff and its grantors; that the said tunnel claim was by its locators named the 'Silver Gate Tunnel Claim,' and is described more fully as follows: Commencing at the base of said Glacier mountain east of Bear creek, and running south-east and parallel with Coley tunnel, through said mountain, five thousand feet from the mouth or starting point of said tunnel at a stake marked, and in or at the mouth of said Silver Gate tunnel, and two hundred and fifty feet north-east, and two hundred and fifty feet south-west, from said stake or tunnel, to its termination. Said tunnel site is situate on Glacier mountain, in Snake River mining district, county of Summit, and state of Colorado, and is five thousand feet in length by five hundred feet in width. Plaintiff further alleges that, while it was in the quiet and peaceful possession of said tunnel claim, and every part thereof, the defendants, wrongfully and without right and without consent of the plaintiff, to-wit, on or about the 2d day of July, 1883, entered upon the premises, and into said tunnel, so run by plaintiff and its grantors on said claim, and wrongfully and unlawfully ousted the plaintiff therefrom, claiming the said tunnel as the War Eagle; that, on or about said last-mentioned date, the defendants, without right, made a pretended location of a lode claim across said tunnel, and within said tunnel claim, and therein wrongfully ousted the plaintiff therefrom, claiming that they had discovered a lode which they called the 'Tempest Lode;' that the defendants have ever since hitherto unlawfully and wrongfully withheld the possession of the said premises and tunnel claim from the plaintiff, to its damage in the sum of $1,000. Wherefore plaintiff demands judgment against the defendants (1) for the recovery of the possession of said Silver Gate tunnel, tunnel site, and claim; (2) for the sum of $1,000 damages for the wrongful withholding thereof; (3) for costs of suit.' The demurrer of the defendants rested upon four grounds: '(1) That the property sought to be recovered in this action is not described by its legal subdivisions, nor by its metes and bounds; (2) that the lodes alleged to be embraced within the said tunnel-site location, and for which a recovery is asked by the said plaintiff, are not mentioned nor described, nor any location of them, or any of them, alleged; (3) that said complainant does not show any valid and legal subsisting pre-emption or location of said Silver Gate tunnel site; (4) that the claim of the said plaintiff to a strip of ground 5,000 feet in length, by 500 feet in width, as a tunnel site, is unwarranted and unprecedented, and was not, at the date of said pretended location, nor at any time subsequent thereto, authorized by any local, state, or congressional law.'
Walter H. Smith and E. C. Ford, for plaintiff in error.
[Affidavits on Motion to Reinstate Case from pages 475-477 intentionally omitted]
LAMAR, J.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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