Statement of the Case.

"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 $1000.

"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 $1000 damages for the wrongful withholding thereof.

"(3) For costs of suit."

The demurrer of the defendants rested upon four grounds: "First. That the property sought to be recovered in this action is not described by its legal subdivisions nor by its metes and bounds.

"Second. 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.

"Third. That said complainant does not show any valid and legal subsisting preëmption or location of said Silver Gate tunnel site.

"Fourth. That the claim of the said plaintiff to a strip of ground 5000 feet in length by 500 feet in width as a tunnel site is unwarranted and unprecedented and was not at the

Affidavits on Motion to Reinstate the Case.

date of said pretended location nor at any time subsequent thereto authorized by any local, state, or congressional law."

Mr. Walter H. Smith, on the 6th of February, 1888, argued the case for the plaintiff in error when it was reached on the docket, no one appearing for the defendants in error. The court, after hearing argument on the point, dismissed the case from the bench for want of jurisdiction.

On the 7th of February Mr. Smith made the following motion, supported by the accompanying affidavits, all entitled in the cause:

"The said Glacier Mountain Silver Mining Company, plaintiff in error, now comes and moves the court to set aside its order made on the 6th of February, 1888, dismissing said cause for want of jurisdiction and for leave to show that the property in controversy in said cause did at the commencement of said suit and now does exceed five thousand dollars in value, and therefore that this court has jurisdiction of this

cause.

"DISTRICT OF COLUMBIA,

66

"WALTER H. SMITH, "Attorney for Plaintiff in Error.

"County of Washington,

88:

"I, Oscar H. Curtis, being first duly sworn, say that I reside at Oxford, Chenango County, New York; that I am well acquainted with the Silver Gate tunnel claim, situate at the base of the Glacier Mountain, in Snake River mining district, in Summit County, Colorado, being the same premises and property that is now in controversy in the case now pending in the Supreme Court of the United States, wherein the Glacier Mountain Silver Mining Company is plaintiff in error and J. Frank Willis et al. are defendants in error, being No. 166 of the October Term, 1887. I at one time was the owner of said property. I purchased it at sheriff's sale and paid therefor over twelve thousand dollars. I know that more than twenty thousand dollars has already been expended in developing said

Affidavits on Motion to Reinstate the Case.

property, and I have no hesitation in saying that the value of said premises and property on the first day of July, 1883, and at all times since that date, exceeded the sum of five thousand dollars.

"OSCAR H. CURTIS.

"Subscribed and sworn to before me this 7th day of February, 1888.

"[SEAL.]

JAMES D. MAHER."

MR. CHIEF JUSTICE WAITE, on the 13th of February made the following announcement:

The further consideration of this motion is postponed until March 19, and the plaintiff in error is directed to cause notice of this order and of the motion, with a copy of all affidavits filed or to be filed in support thereof, to be served upon the defendants in error on or before the second day of March.

On the 20th of March Mr. Smith, on behalf of the plaintiff in error, submitted to the court his motion to vacate the judg ment and reinstate the cause, and the following additional affidavits in support of it, and evidence of service of all the affidavits, all entitled in the cause:

"I, Goodrich H. Barbour, being first duly sworn, say that I reside at Cincinnati, Hamilton County, Ohio, that I am well acquainted with the Silver Gate tunnel claim, situated at the base of Glacier Mountain, in Snake River mining district, in Summit County, Colorado, being the same premises and property now in controversy in the case now pending in the Supreme Court of the United States, wherein the Glacier Mountain Silver Mining Company is plaintiff in error, and J. Frank Willis et al. are defendants in error, being No. 166 of the October term, 1887. That I have been a stockholder in said Glacier Mountain Silver Mining Company since 1876 and was induced to purchase this by the personal knowledge of a near

Affidavits on Motion to Reinstate the Case.

I consider the said Would not sell my

relative and others who had visited the mine and from reliable correspondence up to the present time. I have not changed my opinion as to the value of said mine. mine to be worth more than $5000.00. stock on a basis of treble this amount; that I have been a director since 1877, and from my personal knowledge, the Company have paid in assessments for improvements on said property, nearly five thousand dollars.

"GOODRICH H. BARBOUR.

"Sworn to before me and subscribed in my presence this 24th day of February, A.D. 1888.

"[NOTARY SEAL.]

E. J. HOWARD,

"Notary Public, Hamilton County, Ohio.

"UNITED STATES OF AMERICA,

"State of Colorado.

66 IN THE CIRCUIT COURT.

"On this twenty-fifth day of February, A.D. 1888, personally appeared Charles P. Baldwin, who, being first duly sworn, on oath deposes and says, that he is a citizen of the United States and more than twenty-one years of age; that he has been for the past twenty years and still is employed as mining superintendent in Clear Creek County, Colorado; that about eight years ago he was employed by the president of the Glacier Mountain Silver Mining Company to examine the property of said Company situate and being on Glacier Mountain in Summit County, Colorado; that he made a careful examination of said property, and that it was worth at that time, and is now worth more than five thousand dollars.

"CHARLES P. BALDWIN.

"Subscribed and sworn to before me this 25th day of Feb

ruary, 1888.

66

"[CLERK'S SEAL.]

H. A. ATKINS,

"Clerk of District Court.

"Charles Preston, of lawful age, being first duly sworn, according to law, upon his oath deposeth and saith, that he is personally well acquainted with the Glacier Mountain Silver Mining Company's property in the Snake River Mining District, in Summit County, in the State of Colorado, being the property represented in the above-entitled suit, and that said affiant is personally well acquainted with the value of said property; that said affiant has been mining in that District for six years last past, and is personally acquainted with the property represented in the foregoing entitled suit, and is well acquainted with the value of said property, and other mining properties of that District, and that the said Glacier Mountain Silver Mining Property is worth over five thousand dollars, and further this affiant saith not.

"CHARLES PRESTON.

"Subscribed and sworn to before me this 24th day, February, A.D. 1888, by Charles Preston.

"In witness whereof I have hereunto subscribed my name, and affixed my Official Seal this 24th day of February, A.D.

"I, Walter H. Smith, being first duly sworn, say that I did, on the 29th day of February, A.D. 1888, deposit in the Post Office at Washington City, in said district, a letter directed to George Norris, Temple Court, corner of Beekman and Nassau streets, New York City, (the said Norris being the attorney of record for the defendants in error in the above named case of The Glacier Mountain Silver Mining Company v. J. Frank Willis et al,) which said letter contained a certified copy of the order made by this court on the 13th day of February last, in said cause; a copy of the affidavit of Oscar H. Curtis,