MINING LITIGATION         391

CHAPTER XIV.

BY SAM P. DAVIS.

            It is not supossable that the early struggle for the rich prizes of the Comstock went on without considerable contention. The Ledge became the Mecca of the legal fraternity and the courts soon found their calendars choked with litigation. The legal minds that grappled with the big cases came from all over the Union. Richard Mesick, W. M. Stewart, Jonas Seeley, Charles De Long, Charles Bryan, "W. H. Caxton," "Sandy" Baldwin, and scores of others, were there in the early days earning princely fees for their work. These attorneys made from one to two-hundred thousand per annum in legitimate fees.

            Naturally enough these cases where millions were at stake brought temptation to a corrupt and grasping judiciary. In fact it was because of the notorious corruption of the judges which was urged as a reason why Nevada should shed its Territorial swaddling-clothes and assume the garments of statehood. There were some good judges, but enough bad ones to render the courts a menace instead of a protection to property rights.

            "The trouble really was not so much that they were corrupt, for that was a point of which all parties were only too ready to take advantage, but that they would not 'stay bought'--a fact that entirely demoralized the game and made it the most chance one ever known, whereas litigants felt there should be some certainty even in buying judges. There was no affected coyness or modesty on the part of the judges. They sent out their brokers and demanded a specific amount as the price of a favorable decision. There was no objection to that; it was straighforward and business-like. But the howl came when a mining company, after squarely meeting the judicial demand, encountered an adverse decision, only to learn that the opposing company had made a higher bid and won out.

            "In the Yellow Jacket and Union case. The Union and Princess corn-

392      THE HISTORY OF NEVADA

panies claimed the Yellow Jacket ground by prior location. The popular opinion as to the merits of the case may be inferred from the fact that Union was selling at $40 and Yellow Jacket at $8. But the court decided in favor of the latter, whereat the Union and Princess went out of sight and the Yellow Jacket leaped to a high figure. 'I thought we had the case sure,' said a prominent lawyer, 'for we had given the judges about a quarter of the stock of the Union mine and were assured the decision would be in our favor ; but it seems the Yellow Jacket people came in at the last minute and went us better.'

            "When the Territory of Nevada was organized, in 1861, the judges appointed by President Lincoln were George Turner, Chief Justice, and Gordon N. Mott and Horatio M. Jones, associate Justices. They were to act also as district judges. Governor Nye assigned Mott to the western, Turner to the middle, and Jones to the eastern part of the Territory. This assignment gave Mott practically all the important mining cases as district judge ; but that didn't count much, for upon appeal—and everything was invariably appealed—the cases went before the three, sitting as a Supreme Court.

            "Judge Mott was a good man and an honest one, so far as being beyond the reach of any kind of influence in his decisions was concerned. He was very popular too, and was elected delegate to Congress in 1862, more than a year before he resigned from the Bench. His decisions were uniformly favorable to what was known as the one-ledge theory, but it was never breathed even by those opposed to that contention that he was influenced by any consideration other than his conviction of its correctness. However, with litigation bordering on a state of warfare and the compromising conduct of his associates, his position became an unpleasant one, and, besides, he was getting on in years and had grown to enjoy a seat at a faro table more than one on the bench. He was, moreover, the great obstacle in the way of the Potosi company in their fight with the Chollar. Under these conditions it is scarcely to be wondered at that the bad stars met in his horoscope, and that the judge who could not be bribed to decide against his convictions accepted $40,000 to resign and make way for one who could. The public were disposed to criticise Mott's resignation with considerable asperity but he was afterwards elected to Congress, and then came

MINING LITIGATION         393

an episode in his life which restored him to popular favor all over the State.

            "After the session of 1863-4 he was returning to Nevada by the overland stage route. The coach, in which he was the only passenger, was attacked by Indians near the headwaters of the Platte. The driver was mortally wounded at the first fire, but clung to the reins, while the team dashed wildly ahead. Judge Mott, who had been dozing inside the coach, awoke and realized the situation in an instant. By a surprising effort for one of his age he swung himself around the side of the coach to the driver's seat, took the reins from his hand, laid him in the boot, and then lashed the horses to their utmost speed. The Indians meanwhile were in full pursuit upon their ponies, firing at every opportunity. The race for life lasted more than 10 miles, but the old man won out and reached the station in safety.

            "James W. North, who had been Surveyor General of the Territory, was appointed to succeed Judge Mott upon the resignation of the latter in 1863. No one ever charged North ever accepted money bribes, like Turner. He conscientiously side-stepped that gross practice, but he arrived at the same result in another way. He had built a mill in Washoe Valley, and when important suits were pending, litigants were duly notified that his mill must be supplied with a larger quantity and better quality of ore, and necessarily it had to be forthcoming.

            Meanwhile Judge Turner began to earn a reputation for being the shallowest, most egotistical and mercenary occupant of the Supreme Bench. It was a matter of record that when he traveled in Europe he invariably signed his name on hotel registers as "Hon. George Turner, Chief Justice of the United States." Curiously enough it was Judge Turner that first attracted attention to Mark Twain, then "Samuel Clemens." He delivered a lecture in Carson City on some apparently important subject, but it turned out to be merely a history of his own vain-glorious achievements. Clemens reported the lecture for the Territorial Enterprise and spoke of Turner as "Mr. Personal Pronoun." The skit was regarded with such favor by Joseph Goodman, the editor of the paper, that he offered Clemens a permanent place upon the Enterprise, which was promptly accepted, and this incident launched Twain upon a literary career which gave him, later on, a world-wide reputation. The article was a scorching exposition of Turner's vanity, egotism and emptiness,

394      THE HISTORY OP NEVADA

and created a great deal of discussion throughout the territory.

            "This was soon followed by a signed article from the pen of R. E. Arick, the first Mayor of Virginia City, who charged the Chief Justice with being absolutely corrupt in his court decisions, and for sale to the highest bidder. Similar charges followed from other sources until in the summer of '62 the Enterprise was in full cry against him and demanding his resignation or removal. But it was not until 1863, when some of the big mining cases were appealed to the Supreme Court, that Judge Turner began playing the game for all that was in it. He did it in a regal way, his broker—a man named Johnson, a near relative—notifying litigants what a favorable decision by his royal highness would cost. In the first Chollar-Potosi trial it was only $60,000 for Judge Turner himself and $10,000 for his broker, which the Chollar company readily paid, of course ; and in every other suit there was a similar demand.

            "But occasionally time would not admit of an intermediary, and Judge Turner had to attend to the business himself. A gentleman who was interested in a case before the Supreme Court stated that after it had been argued, he was notified by Judge Turner that his decision would depend upon $10,000 being delivered to him before the next morning. That amount of money was not procurable in Carson City, so the gentleman drove hurriedly to Virginia City, where he could obtain it only in gold coin. It was past midnight when he got back to Carson City. Concealing the sack of coin, which weighed over 50 pounds, he went to Judge Turner's rooms in the Ormsby House and knocked at the door. Directly a light shone through the transom and the door was softly opened. Mrs. Turner, clad only in a nightgown, was standing before the gentleman.

            "Is the Judge in ?" he asked.

            "Yes, but he's asleep," she said.           

            "I have brought that money."

            "I will receive it."

            "The gentleman produced the ponderous sack, upon seeing which Mrs. Turner, woman-like, gathered up her nightgown as she would have done with an apron, and he dropped it into the improvised receptacle. The weight of the sack tore the nightgown completely off of Mrs. Tur-

MINING LITIGATION         395

ner and left her with the gold lying at her feet. The gentleman closed the door.

            "North was opposed to the one-ledge theory, and, in consequence, the Potosi company had secured what they aimed at in buying Mott's resignation—a partisan of their cause upon the bench. But as Turner yet stood to his bargain with the Chollar company, and as Judge Jones seems to have been regarded as an uncertain quantity, a further readjustment of the Supreme Bench was necessary. This was effected late in 1863 when Judge Jones resigned and P. B. Locke was appointed in his place.

            "It had been thought that Turner was the limit, but Locke quickly took precedence. He played fast and loose in every case until all parties joined in denouncing him. The appeal in the great Chollar-Potosi case, which Judge North as district judge had decided in favor of the Potosi company, was argued before the full bench in April, 1864. A few days later North filed a decision, concurred in by Locke, affirming his former decision and making a ruling in the nature of an injunction which practically debarred the Chollar company from any further proceedings.

            "This would have been a clincher if all had held fast. But Locke was readily induced by the Chollar people to file a supplement to his decision which reopened the hearing of evidence. The Potosi crowd getting at him again in their turn, however, he ordered the addendum struck off the file. This hide-and-seek game was too much for even those who liked a pliant judge. Locke was too purchasable to suit anybody.

            "The Enterprise opened fire on Judge Turner and demanded his removal as early as 1862. From that time it never ceased pouring hot shot into him and the Supreme Court, and by 1864 its attacks became a regular bombardment. In August of that year the Supreme Court convened for the fall term, but before any proceedings were had the judges were informed that the bar of the State unitedly refused to practice before them until they had vindicated themselves or taken action against the Enterprise for the charges of corruption it had made against them. The response was probably the most remarkable one ever seen in a court ; all the judges descended from the bench—Turner and North resigning at once, and Locke a little later in the day.

            "That was the last and best act ever performed by the Supreme Court of the Territory. A month later Nevada was admitted into the Union, and

396      THE HISTORY OF NEVADA

C. M. Brosnan, H. O. Beatty and James F. Lewis—three as good men as ever benched together—were elected Supreme Judges. It was worth taking on the burden of a State government to secure so honest a bench.

            "There was an aftermath of the Territorial judiciary fight which was almost comical. After resigning, Judge North sued William M. Stewart for slandering him in a speech, and the Enterprise for libel for having reported it. The cases dragged along without any apparent desire on North's part to push them, and at length it was stipulated to take them out of court and submit them to three referees. The three men agreed upon were George F. Jones, Mayor of Virginia City; Tod Robinson, a lawyer of considerable distinction, and W. H. Rhodes—or 'Caxton' Rhodes —another lawyer, with a literary turn. The evidence on both sides was laid before them, and a decision was hourly expected.

            "But weeks went by and no decision was rendered. At last Mayor Jones came to the Enterprise office and said that his mind had been made up from the start, but that he thought the two other referees 'wanted to be seen.' He was requested to ascertain what they desired. He returned with the information that their desires were very modest: Rhodes wanted a gold watch and Robinson a suit of clothes—merely as compensation for their services. They got them ; and the parties to the suits got in return a decision saying that no one was to blame—that Judge North was as spotless as snow, and that the motives of Mr. Stewart and the Enterprise were just as pure."

            It is related of a district judge, who in a small suit received $1,000 from the Savage mine and the next day got an additional sum of $1,500 from the Norcross. After giving the matter considerable judicial thought he returned $500 to the Norcross people explaining that he desired each company to be on an even footing before the court and with this arrangement the scales of justice were balanced evenly.

            The case of Rollin Daggett and Cinc Barnes against the Bonanza mines for a portion of the ground occupied by the defendants was a notable and bitterly contested case. The United States Judge at Carson, before whom the case was tried, got down off the Bench and made a speech to the jury that was a better plea for the defense than that made by any attorney in that case. His officiousness in the matter caused Cinc Barnes to insinuate that possibly the Court had some of the defendant's money in his pocket when he made the talk. This accusation was hotly

MINING LITIGATION 397

resented by a friend of the Court and Barnes retorted. "If that man is talking merely for friendship, what a barn-burner of an argument he could make if he got a fee."

            After the jury gave the defendants a verdict, Barnes selected one who might be easily scared and told him that he had an affidavit from two other jurors that he had received money from Fair's emissary in the case. Barnes, on account of the man's family, was willing to be merciful. All he asked was an affidavit regarding two other jurors in the case and if it was forthcoming, he would give the man no further trouble. He secured the necessary document and went down the line. In a few days he had affidavits from a majority of the jurors accusing the others of accepting money in the case. Armed with these documents he called on Col. Fair, and, putting them under his nose, demanded $200,000 cash. Fair tried to grab the documents, but Barnes covered him with a six shooter, and Fair "came through" with the money.

            Later Barnes, who knew every trick of mining litigation, drifted into Pioche one bleak fall day, on a mule, and clad mainly in a linen duster. He had not been in town twenty-four hours before he convinced the management of the Hermes mine that Raymond and Ely people were taking ore from within the boundaries of the Hermes. He showed them how easy it would be to start a suit. He then called on the other side and told them that the Hermes people were arranging to start a blackmail suit and that he would show them how to beat it. Before the week was over he was in the pay and confidence of both parties. He suggested some names for jurymen, giving the same names to both sides. He then manipulated the drawing of the jurors through the Court Clerk so that both sides thought they had the jury.

            They were so positive that a thing occurred that has never been paralleled in Nevada litigation, where a large sum was involved, both sides accepted the jury without a challenge on the ground that any twelve men were good enough for a litigant whose case was so absolutely plain and righteous.

            While the case was in progress the stock market in San Francisco responded to every turn of the evidence. Barnes, who was manipulating the case for both sides, handled the evidence so that it was apparent that the defendants of the Raymond and Ely would win. Meanwhile he had his agents in San Francisco annexing all the Hermes stock possible. After

398      THE HISTORY OF NEVADA

the jury had retired, a clothes-line was let down from a window in response to a handful of gravel thrown against the pane by Barnes. A boot was attached to it and this boot was filled with gold marked R. & E. Again and again the boot was let down and it always came up full. Presently it was noticed that the boot marked R. & E. contained less gold every time and its place was taken by silver. After the boot came up empty they regarded the case as closed and "weighed the evidence." The Hermes evidence outweighed the other and Hermes won the case with heavy damages. Barnes through his agents was long on Hermes and short on R. & E. The conspiracy netted him and his associates about a quarter of a million.

            Barnes was one of the queer characters of the west. He had a face like a moon, and seemed a guileless and innocent old rancher, walking about in slouchy clothes and usually a linen duster. He was full of wise saws and witty observations and was the man who said in speaking of Col. Fair. "The tears of widders and orphans is water on his wheel." The cause of most of the litigation in which valuable properties were often swallowed up in lawyer and court fees and the purchase of Judges and Juries, was the "law of the apex." The fact that miners could follow their ledges from the apex of discovery down indefinitely under and outside of their side-lines, was the cause of indeterminable litigation with adjoining mines. If all the money spent in such litigation could be estimated the sum would total all that has been made in legitimate mining in some sections of the country. Of late years it has become glaringly apparent that the "law of the apex" was formulated by some far-seeing legal mind who saw in its application lucrative for generations to come. Of the years there has been a movement in the direction of enacting a Federal statute making mining property subject to "square location" under which locators could only mine in the space bounded by their side and end lines.