Joseph McKenna

“ One of the defenses of appellant is that on October 29, 1906, the Clark-Montana Realty Company, then being the owner of an undivided one-fourth interest in the Black Rock claim, executed and delivered to the predecessors in interest of appellant a deed of release and quitclaim of all its 'right, title, interest, claim and demand * * * in and to that certain portion, claim and mining right, title and property on those certain ledges, veins, lodes or deposits of quartz and other rock in place, containing precious metals of gold, silver and other metals. ”

“ The predecessors of appellees (so run the allegations) on April 18, 1875, discovered a vein or lode of mineral-bearing rock in the ground described as the Elm Orlu. Discovery was followed by location of the claim and other acts of its appropriation prescribed by the mining laws, proof of which was duly made; and such steps were taken that on December 30, 1882, application for patent was made and patent issued for the claim January 31, 1884. ”

“ On the merits the case is not of novelty. It is the usual one of priority of rights in a mineral-bearing vein. The averments of appellees we have given. They are met by appellant by denials, counter averments of location and rights, not only by grounds of defense but of affirmative relief; prayers for recompense for trespasses upon its rights and that its title be quieted against the assertion of appellees. ”

“ That the Elm Orlu people were in possession of their claim, working the same-of which the Black Rock people had knowledge-and that hence the latter could not avail themselves of the defects in the location of the Elm Orlu. Yosemite Mining Co. ”

“ St. §§ 4618, 4620, 4622, 4631) are involved, and the amount in controversy exceeds in value the sum of three thousand ($3,000) dollars, exclusive of interest and costs, all of which will appear from the facts hereinafter set forth. ”