'Brilliant Contingency of Legal Talent and Mining Experts': A Tonopah Apex Lawsuit, 1914-1918

13ENJAMIN BARN!\

I I www.oldradio.coml !'he History of KTAI31 ;I sta tions / sf I ksfo.htm da," I listory Myth #23 ey, Nevad a (December .tm (2006) (accessed 3 n No. 142 (Washine ton, I www.radioblvd.com I

·iew by Valentine and 6 june 2006. Venable, int~~rview by sa gold buyer whi le he is mentioned by Doris

•sits of Perslri11g Corwltf, ·-77. ·r (25 November 1932), nPr (2 December 1932), ' Reli(~f Committee Sees Will Give No Relief to

Ia Ientine and Barna, 14 12-23. ·; "Would Eject Miners Norkers at Rabbit Hole

nbcr 1942), p. 3; "Cold . 1943), p. 3.

"Brilliant Contingency of Legal Talent and Minilzg Experts"

//Brilliant Contingency of Legal Talent and Mining Experts"

Tonopah Apex Lawsuit, 1914-1918

ERIC NYSTROM

101

A common theme in histories of mining towns is the ever-present risk of litigation. The \•vay these stories are popularly told, lawyers arc unscrupulous, experts arc liars, judges are bought, and juries are either ignoran t or the last bastion of rational thinking. Legal actions halt production, honest miners sometimes are deprived of their property, and in the end, so the stories go, everyone loses except the lawyers.

As with most legends, nuggets of historical truth are at the core of these stories. Hov.rever, the broader focus on. courtroom antics tends to suggest that !he law only got in the way of miners. Looking at the issue in a slightly different way, howeve1~ reveals the omnipresence of the law in mining. Mining was (and has always been) a business. We remember some aspects of this-the discoveries, machinery, and vvorking conditions for example-but American mining operated in a legal context that was just as significant to the business of mining as those other factors.

This article examines one lawsuit, in Tonopah, Nevada, in19l4. Looking at this trial in depth sheds light on the way mining litiga tion worked and how

Eric C. Nystrom is assistant professor of history at the Rochester Institute of 'leclmology. He specializes in the history of technology, especially mining history, and is finishing a book on the visual culture of American mining engineering in the late 19th and early 20th centuries. He would particularly like to thank Stuart W. Leslie, Andrew L. Russell, Tulley Long, and Hyungsub Choi, Rachel Dolbier of the Mackay School of Mines at UNR and Nelson Knight of the Utah Division of Ste1te His tory. An eMlier version of this work appeaJed as "A Grand Galaxy of Talent," in Boomtown H.ist01y II: Celebration of Nyc Cou11ty Boomtow11s, Jean John­son, ed. (Amargosa, NV: Nevada Boomtown Hist01y Event, 2007), 87-119.

102 ERIC NYSTROM

courts reuched their conclusions, but also serves as i.l w indow into the close­kni t world of experts and lawyers that dominated the p rofession of mining law. As vve shall see, the mining-law experts for each s ide coord irtated their side's over-all legal s trategy. These experts' plan for winning the tria l involved a combination of contributions from d ifferent sorts of experts­their specific lcgul expertise, the legal reinforcements of each compan y's regulM attorneys, the theoretica l depth of well-know n geologists, and the locul knowledge of company engineers. Personnl connections played un importan t role in d etermining which experts worked togethe1; but on the w hole, the members of the e lite group of mining-la w experts had much in common, and could be qu ite friendly with each other. T he complexity of mining law, the high cost of f<1 ilure in a trial, and the d ifficulty of recasting geological knowledge in a legal framev.rork made these independent experts necessary. Appreciating their efforts can be difficult in the ubstract, but it is hoped thut this look at these experts at work can h e lp clarify their important contributions to the his tory of rnining.1

Tn a s tory fami lia r to m<~ny Nevadans, Jim Butler discovered ore at the future site of Tonopah in 1900. The next yeat~ he returned with friends and bega n developing his cla ims in earnest. Tonopah's poten ti tl l brought not only a huge crowd to the new camp, but also the attention of Eastern capital. Butler and his partners sold the o riginal claims to the Tonoptlh Mining Company, bucked by Philtldelphians, a nd the company commenced mining in January 1902. The Tonopah Mining Company held some of the best claims, bul prospectors attracted by Butler's initial discoveries had s tuked others that ulso turned into profitable mines. The boom period lasted through about 1905; after that, Tonopah mining became less speculative Glnd more businesslike. The dis trict's period of peak productivity was during about ·1908-24. The best years occurred almost in the midd le of that period-lola! mining output exceeded five-hundred thousand tons a nnually in 1913, 1914, ·1915, and 1918. During these years, there were more than half a dozen major mining compm1ies, and many more small ones. Some of them were interrelated, shuring bourd members, munagers, or even mining personnel, but no company completely dominated Tonopah, as was common in other dis tricts . Figure 1 shows the ground controlled by the various companies as of 1915, which even extended d irectly under the town itself.2

One of these companies was the Jim Butler Tonopah Mining Comptlny, named after the discoverer of the original deposits arrd formed in 1.903 to work s ixteen claims southeast of the origintll d iscoveries (Figure 1).3 Butler himself was president of the namesake cornp<~ny until 1911, but thJoughout the period, the Tonopah Belmont firm, controlled by many of the same Philadelphiru1s who took over the original discoveries. From its formution in 1903 until 1910, the Butler was mined in ulimited (ashio n, with low output. The discovery of more valuable deposits underground in 1910 led to the Butler turning its firsl profit, in 1912.~

"Brillia11t Co111i11genc

N(W. lONO

r.tN

figure 1. Claim map small claim in the ce located just to the so ("Apex Litigation at

Figure 2. Cross-sccti< nnd the Siebert Fault (1915): 661)

ERIC NYSTROM

)W into the closc­fcssion of mining side coordinated wimung the trial orls of experts-each company's

:ologists, and the ctions played an elher, but on the erts had much in he com plexity of culty of recasting ependenl experts abstract, bul it is y their imporlan l

overed ore al the with friends and brought nol only

ern capital. Buller lfining Company, nining in January best claims, but ~d others lhal also 1 about 1905; after businesslike. The 24. The best years output exceeded :~nd 1918. Du ring ining companies, ~d, sharing board <pany complclcly gure 1 shows the ch even extended

v1ining Compa11y, ·din 1903 to work Butler himself was out the period, lhe ~lphians who took il 1910, the Buller y of more valuable profit, in 1912.4

"Brillimzl Coutinge11Cy of Legal ·llilent n11d Milling Experts"

Figure 1. Claim map of Tonopah, Nevada, at the time of the trial. The West End is a small claim iJ1the center-left, and the portions of the Jim Butler ground in dispute are located just to the south. Note the jagged end line of the West End claim. ("Apex Litigation at Tonopah," Engineering and Mining Joumn/99 (1915): 660)

JIM BUTLER WE~T ENO

RHYOI.Jl(

~ ~ IAACHTT(

~ ~

llRECCIA

103

Figure 2. Cross-section of the geology of the disputed vern, showing the anticline shape and the Siebert Fault. ("Apex Litigation at Tonopah," Engineering nnd Mining foumn/99 (1915): 661)

104 ERTC NYSTROM

The West End Consol ida ted Mining C01npany, formed to work Lhe West End cl<tim, was located in 1901 by several of the original leasers of Butler's ini tial d iscoveries (before the beginnings of Ph iladelphia control) . They formed <t loc<~ lly owned company, which was unusual for the area, but a lack of cap ital restricted production. In 1906, the mi ners fo und h igh-value o re (averaging $62 per ton), jus tifying incorporation and a public stock offering to raise working capital. Francis M. "Borax" Smith bought most of the shares and became company p resident, but the original owners remained involved in managing the mine:; The West End settled a d ispute over extralateral rights w ith lhe MacNamara, the claim immediately to its north, in 1908. Figure 1 shows the MacNamara north of the West End claim, bordering the Butler holdings to the south, all di rectly under Tonopah's main streets. By 1914, the West End had earned a solid reputation. The mine shipped ore steadily, and the man<~gemcnt

won praise for making decisions based on conserv<ttive esti ma tes and pushing a forward-looking development strategy.6

These two neighboring businesses, the Jim Bu tlerTonopahMiningCompany and the West End Consolidated Mining Company, were the antagonists in the high-stakes 1914lawsuit that promised ru in fo r one and prosperity for the other. The fight began tha t February, when Bu tler miners broke through into ·workings made by the West End in Butler grou nd. The West End mined more than fifty­five thousnnd tons of ore beyond its side boundary, in Butler territory? After negotiations to prevent litigation and to equally divide the g round f<t ilcd,R the two companies prepared to battle it out in court.

The legal basis for the dispute >vas a branch of mi ni ng law known as cxtral<tteral rights, which, under certain conditions, permitted miners to follow a vein from their own claim underneath a neighboring one as the vein dipped into the earth. ln order to possess this extra lateral right, the claim had to include the "apex" of the vein within its surf<tce boundaries, <tnd meet all of the other requirements (such as size, fees, shape) th<tt the lmv spelled out.9

A mini ng company needed an apex in its claim to have extralateral rights, but what exactly was an apex? The statute did not define the word, and it was not a tradition<~! mining term, so no historical meaning could serve as a guide. Congress apparently had an idealized type of fissure vein in mind in using the term, and in such a case it might have been clear enough what the apex of the vein w<ts, but the geology of mines was rmely so simple. As a result, the courts gradually refined the tenn "apex" as they decided on lawsuits over cxtralateral rights where existing precedent was unclear.

West End officials dearly believed th.ey had an apex inside their claim that gave them the right to follow their vein into the Butler~ but the ve.in seemed different from what Congress had in mind. It had a shape more like a handkerchief that someone had pinched in the middle in picking it up off a flat table. Figure 2 shows one vision of the cross section of the vein. Geologically speaking, this inverted U shape is known as an anticline.

" Brillirmf Continge1

The problem of decisions kr101

constitute apexe~ undulated, it hac tried to dodge tl· was not <~n anticli the top-two veir in both directions to usc language 1

w hole structure a:

and the "South d i "the apexes," nev continued from o was clearly an ani C<tses, lacked eith whole and frcc1uer West End's effort 1

Both sides knew 1

was based on very End hoped the di precedent from a~ theory supportabl< different as to inva

The s takes wer· million dollars, an' cases of mining tn ruin if lost; the futt out to assemble thE

The two mining and mining experts different types of e specific expertise in

normal attorneys foJ in mining law, but ' and the local contex national repu tation/ thereby cotulect the engineers, whose vc mines, rounded out to present <t coordir worked together to r

l n the Jim But!( especially distingui!

ERIC NYSTI{OM

?d to work the West il leasers of Buller's mtrol). They formed . but a lack of capital e ore (averaging $62 ng lo raise working shares and became tolved in managing :!raJ rights with the Figure 1 shows the 1tler holdings to the , the West End had 1d the management im ates and pushing

hMin.ingCompany e antagonists in the ;perity for the other. ough into workings ted more than fifty­tier territory? After ground fai lcd,8 the

ing lav.r known as nnitted miners to ing one as the vein ight, the claim had ics, and meet all of w spelled out.9

ala teral rights, but )rd, and it was not serve as a guide. in m ind in using

1 what the apex of lc. As a result, the on lawsuits over

inside their claim tle1~ bu t the vein shape more like a <.ing it up off a flat tein. Geologically

"Brillinul Co11tiugency of Lcgnl Tnlell l and Mi11ing Expa ts" 105

The problem for the West End wns that earlier courts had ruled, in a series of decisions known ns the Leadville Cases, thCit anticlines were not enough to constitute apexes. The courts concluded that if a blanket vein merely rolled or undulated, it had no true apex, it had no extralateral rights.10 The West End tried to dodge this precedent by arguing that, despite appea rances, its vein was not an anticline, but two separate veins that happened to come together at the top-two veins, two apexes (in the same place), and thus extralatert~l rights in both directions. During the trial, West End lawyers and experts were careful to usc language that reinforced this interpretation. They never spoke of the whole s tru cture as a vein; instead, they talked about the "North dipping vein" and the "South dipping vein;" similnrly, the peak was always a "junction" or "the apexes/' never "the anticline." The Buller coun tered that since the vein con tinued from one branch over the top nnd down the other s id e, the vein was clearly t~n anticline, and thus, by virtue of the precedent in the Leadv ille Cases, lacked either an apex or extralateral righ ts. Speaking of the vein as a whole and frequently referring to the "anticline," the Buller team mirrored the West End's effort to usc language that supported its inte rpretation of the law. Both s ides knew that wh ile the Leadville precedent would be significnnt, it was based on very different veins than those in the Tonopah district. The West End hoped the difference was significant enough to prevent the Leadville preceden t fron• applying to this situation, and ins tead to make its two-vein theory supportable, whereas the Butler believed that the s ituation was not so different as to invalidate the general point of the l.,eadville Cases.

The stakes were high. All told, the ore in dispute was valued at about a half million dollnrs, and on top of that, Nevada law allowed for triple damages in cases of mining trespass. The lawsu it seemed to promise prosperity if won, ruin if lost; the future seemed to hang in the balance- so both companies set outlo assemble the best legal talent money could buy.

The two m in ing companies assembled a "brilliant contingency of legal talent and mining experts" to defend their claims.11 Each side's team consisted of four different types of expert. Directing the over-all strategy were attorneys with specific expertise in mining law and extralatcral rights. Assis ting them vvere the normal attorneys for the mini ng firms, who generally had li ttle specific expertise in mining law, but were more familiar with the company's internal operations and the local context. Both s ides hired eminent expert witnesses, generally with national reputations, to testify about geology nnd engineering practice, and thereby connect the case's specific details with broader scientific theory. Local engineers, whose value in court was their intimate kl10\vledge of the specific mines, rounded o ut the teams. Togclher, these four types of expert allempted to present a coordinated v ision, where legal arguments and geological facts worked together to make their interpretation more compelling to the judge.

In the Jim Butler-West End trial, the expert mining attorneys were an especially distinguished g roup. The Butler reta ined the biggest star of all,

106 eRIC NYSTROM

"Jud ge" Cu rtis H. Lindley, uuthor of the most famous and im portant treatise on American mining law to that time.12 ln fact, the third (und ultimate ly final) edition of his text, widely referred to s imply us "Lindley on Mines," appeared in Januury 1914, less thun u year bdore the trial began. 13 Lindley's fathc1~ also a lawye 1~ m oved to California during the gold rush in 1849. Born in 1850 in Marysville, Culifornia, then one of the major centers of mining activity on the Mother Lode, Lindley spent most of his teenage years on the Comstock Lock and served as n hois ting engineer before he studied law <md bcgnn practicing in California. lie briefly served ns a judge in Amador County, earning him the lifetime sobriquet "Judge," but uftcr leaving office, he turned more specifica lly to the study of mining law. Few books on mining law had been published Lindley began his work, and "the few works that had appeared were lit tle more than digests of the statutes and the few cases the courts had then decided. They could hardly be dignified with the title of trcutiscs.'' 14 Lindley first published his monumental work in 1897, with heavily revised editions in 1903 and 1914.15 Lindley was apparently "su ch u stickler for the proprieties that he would never quote from or refer to his own book, and never allowed it to be brought into the court-room, even by his associates, w hen he was present." 16

Even so, the text became the w idely acknO\vledged authority on America n mining law; United States Supreme Court justices even quoted it extens ively in relevant opinions.17 The third edition of Lindley 011 Mines was conside red the bes t of them all, a monumental work to cap a d is tinguished career. The famous mining geologist Horace V. Winchell, who testified for the West End as an expert opposite Lindle_Yt termed the book " lucid," "unambiguous," and "indispensable" in u September 1914 review.18 The eminent n1ining eng ineer Rossiter W. Raymond, himself an expert on mining law, heaped even more praise on Lind ley' s "trulc] magnum opus." Tn the most widely read journal for mining eng ineers, Raym.ond described Lindley on Mi11es as a "mng nificent treatise," written with "cand01~ lucidity, and forceful suggestiveness" and featuring "comprehensive and classic excellence." 19

Lindley a lso pursued an active courtroom career. lie vvas a tria l lawyer in many other famous mining cases, including those in Grass Valley, Cali fornia, the Bunke r H ill and Sullivan cases in Idaho, and others in Utah, in addition to Butle r vs. West End.20 Heav ily involved in professional and civic cu uscs, he was active in the San Francisco Bar Association, und helped organize the California Stale Bar and served as its fi1·st president. A political progressive, Lindley was one of the leaders of a reform movement in San Francisco, played a strong ro le as lead counsel in the effort to dam the 1-Ietch Hetchy Valley to create a water supply for the city, and served as a director of the Panama­Pacific Exposition of 1915 and as San Francisco park commissioner.21 Lindley was a fri end of Herbert Hoover; they met when Hoover was engaged to help Lindley prepa re fo r a lawsuit in the Grass Vulley, Ca li fornia, dis trict in 1896-97.22 According to William E. Colby, Lindley taught mining law to Hoover

"Brilliant Couliu~ency oj

at Stanford, and ap his first mining pos Administration du ri along by introclucin: persuaded Lindley tc work.23 /\nd Lindley wrote doggere l verse

Second in comm. Lindley's trusted. ass own right, including . <md took over the ol< was most famous, la t was the lead counsel he worked out of the to keep that quiet, t< represented by the sm well: His 1916 four-p the initial trial in Ton• settled the Buller-We "perhaps the most art the apex law."26

Heading the West William H. Dickson o eight years as a lawy Lake City, Utah Terri post in 1884. As part federal territoria l o ffi< under the federa l Ed that, in 1884, he was 1

his window, which br· son s truck him in the f from the United StatE successful (and lucrati reputation in mining I. Dickson never gained published a treatise, b high. Like Lindley, Di to work until the end business interests in th (along w ith A. C. Ell briefly held an intere1 unsuccessfully defenc in a series of boundm

ERIC NYSTROM

l important treatise nd ultimately final) 1 Mines," appeared indley's father, also 49. Born in 1850 in ning activity on the ~he Comstock Lode 1d began practicing 1 ty, ca rning him the !d more specifically ad been published ppeared were lillie c courts had then r eatiscs."H Lindley revised editions in the proprieties that ·ver allowed it to be . he was present." 16

ority on Ameri can toted it extensively ws wns considered ;uished career. The d for the West End nambiguous," and

11 min ing engineer heaped even more tidely read journal s as a "magnificent ggestiveness" and

·as a trial lawyer in ; Va lley, Cali fornia, 1 Utah, in addition I and civic causes, elped organize the •litical progressive, 1 Francisco, played h IJetchy Valley to or of the Pa.nama­lissioner.21 Lindley as engaged to help ia, d istrict in 1896-ng law to Hoover

"l3rillianl Collfi11gency of Legal Tt7leHI a11d Mining Experts" 107

at Stanford, and apparently played an important role in getting T loover his first mining positions. Later, when Hoover became head of the Food Administration d uring World War I (which appointed Lindley had helped along by introducing him to friends in Washington), the mining engineer persuaded Lindley to come to \1\Tm;hington to take charge of the agency's legal work.23 And Lindley was a poet, of sorts: During the Butler-West End trial, he '"'rote doggerel verse that the local newspaper printed.24

Second in command of the Butler's legal strategy was William E. Colby, Li ndley's trusted assistant and a recogni?.cd authority on min ing law in his own right, including apex litigation. Colby began ,.vorking for Lindley in 1907, and took over the older lawyer's practice when Lindley d ied, in 1920. Colby was most famous, later in life, as a longtime officer of the Sierra Club. Colby was the lead counsel for the an ti-Hetch Hetchy Dam movement, even though he worked out of the same offices as dam advocate Lindley. (Lindley hoped to keep that quiet, to avoid any sense of impropriety in having both sides represented by the same firm.)25 Colby certainly understood extra lateral rights well : His 191 6 fo ur-part law-review article on the apex issue, produced after the initial trial in Tonopah but before the United States Supreme Court finally settled the Butler-West End case, was, according to a modern legal scholar, "perhaps the most articulate and certainly the most comprehensive defense of the apex law."26

Heading the West End Consolidated's legal team was the mining lawyer William H. Dickson of Salt Lake City. A New Brunswick native, Dickson spent eight years as a lawyer on the Comstock LodcY ln 1882, he moved to Salt Lake City, Utah Territory, and was appointed to the United States Allorney post in 1884. As part of the Gentile minority who occupied a majority of the federal territorial offices, Dickson zealously prosecuted Mormon polyga mists under the federal Edmunds Act.28 He so enraged the Mormon community that, in 1884, he was the target of glass jars of human waste, Jobbed through his window, which broke on the walls and ca rpet. In 1886, a Mormon le<Jder's son struck him in the face during a personal mceting.29 In 1887, Dickson retired from the United States Attorney post, citi ng the low salary, and resum.ed a successful (and lucrative) private lav,, carcer.30 Dickson developed an excellent reputation in mining law, especially apex suits, and tried many fam ous cascs.31

Dickson never gained Lindley's national notoriety, probably because he never published a treatise, but his reputation as a mining lawyer seems to have been high. Li ke Lindley, Dickson had less than a decade left to li ve, but continued to work until the end.32 Dickson was fami liar v.rith Tonopah, because of his business interests in the camp. He served as a member of the Board of Directors (along with A. C. Ellis) for the Montana-Tonopah Minjng Company,33 and briefly held an interest in some of the camp's earliest claims. Dickson later unsuccessfully defended the Tonopah company formed to work his cla ims in a series of boundary lawsuits. Ironically, the Jim Butler Tonopah Mining

108 Ei<JC.: NYSTRO M

Company later absorbed at least hvo of those claims, the Stone Cabin and Wandering Boy.34 In short, Dickson had a long history with Nevada, Tonopah, and mining law.

Working closely with Dickson qn the West End Consolidated strategy was the mining lawyer A. C. Ellis, Jr. The son of an early Nevada lawyer and politician, Ell.is moved to Salt Lake City in 1892, and entered into a multi-decade legal partnership with Dickson and the elder A. C. Ellis. One of the Ellises had participated with Dickson in his ee1rly .investments in 'Jonopah as welP5

The mining lawyers for both sides received subste1ntial assistance from the regular attorneys for the mining firms. The Butler's regular attorney, Hugh H. Brown, long time Tonopah lawyer and one of the s tate's best-connected lawyers,->~' first ventured to Tonopah in 1903, when his San Francisco firm sent him to the desert to help open an office. Brown may have almost immediately encountered Dickson, the West End's top lawye1~ in the courtroom in 1903, when Urown's finn defended the Tonopah Mining Company against the elder lawyer's earlier venture, the Tonopah and Salt Lake Mining Company.37 l>rown did legal work for many of the Tonope1h mining firms, especially the Tonope1h Mining Company and related companies such as the Tonopah-Belmont. Rounding out the Butler legal team was J. H. Evans, Brown's Tonopah pmtner.38

The other West End lawyers collectively represented a wealth of experience and connections from across the West. Harry Hunt Atkinson moved to Tonopah in 1906, just as he began his ca reer. Besides ea ting his meals at the private Nyco Club, which lis ted john Chandler~ the Superintendent of MacNamara and late1~ during the trial, the West End, as a member~ Atkinson also knew Chris Zabriskie, one of the West End's principal owners, "vt~ry well," and the lawyer's father-in-law, Clyde Jackson, was an early manager of the MacNamara. Elected justice of the peace in 1908, Atkinson served two terms, until1912, and began a two-term stint as Nye County district attorney in 1917. Atkinson's office was in the Nyco building, where his friend Chandler shared space with Mark R. Averill, who then was elected dis trict judge and stood ready to rule on the case between the two mining companies.39

Hore1tio Alling lived in California when the trial began, but had lived in Tonopah from 1906 to 1910. He had a reputation as an excellent hiallavvyer and continued to work in cowts throughout Nevada. "Judge" S. S. Downer made his legal reputation in Boulder, Colorado, serving as county judge, district attornel" and district judge for nearly three decades before moving to l{eno in 1904 and joining one of the largest firms there:10 The West End also used the services of Peck, Bunke1~ and Cole, of Oakland and San Francisco, probably its regular legal firm (The West End's cmporate headquarters were in Oakland.) James F. Peck, the senior pa.rtne1~ was well known in the Golden State and earned a specialty reputation vvith his involvement in water .rights controversies in the central valleys. Not only had the junior parlner Walter D. Cole lived in Tonopah from 1906 to 1910, but the Nevada Supreme Court appointed him to the commission that compiled the state's lawsY

"Brillimzl Con tingenc!

The two com witnesses. The Bu served as Colorad Creck.'12 Pinch gain Goldfield Consolic credited for organ m ining cases, hand poise born of abso enhanced his imag of Idaho College oJ of Mines under Sec despite an initial fl< Franklin Roosevelt

Another Butler Goldfield Consolid consulting geologis who studied undeJ consulting career. volcanic rocks mac s tan.d, he mentione consulting engagen newly formed by G became famous as < decades. That Searl: perhaps no surprise father~ Fred Searls, ; practiced mining Jm Searls, Jr., worked ir acknowledgmen ts tc

The Butler also r of mines and profes: witness. One of the Hopkins Universitl" by Joseph LeCon te. chaired a committee San Francisco earthc of seismic acti vi ty.''6

witness in apex cas( including the earlier

The mining and less distinguished. T co-founder and pres a famous geologis t) .

ERIC NYSrROM

Stone Cnbin and -.Jevada, Tonopah,

;olidatcd strategy ~vada lawyer and 1to a multi-decade of the Ellises had

1 as weJJ.3:> >sistance from the rttorney, Hugh H. :onccled lawyers,36

m sent him to the atcly encountered l3, when Brown's ~r lawyer's earlier m did legal work Mining Company ing out the Butler

ed a wealth of Hunt Atkinson

>eating his meals uperintendent of rember, Atkinson ~~ owners, "very n early manager n son served two district attorney

; friend Chandler istricl judge and Janies.39

but had lived in t trial lawyer and )ovmer made h.is ;lTict attorney, and r 1904 and joining ·s of Peck, 13w1.keJ~ ;al firm (The VVest he scnlor parb1e1~ putation w ith his Not only had the ), but the Nevada the stale's laws.41

"Brilliant ConfiHgeHcy of Legal Tale11t anti Mi11i11g 1-::xperts" 109

The two companies engaged top experts in geology and mining as witnesses. The Bulle r's top geologirCJ I wi tness, John Wellington Finch, had served as Colorado state mineralogist and as a mining engi neer in Cripple Creek.-'1 finch gained fame in central Nevada for managing George Wingfield's Goldfield Consolidated Mining Company, of which rinch's expert advice was credited for organ izing. l-Ie also had a reputation as an excellent witness in mi ning cases, hand ling long cross-examinations with <~p lomb and bearing "the poise born of absolute knowledge of facls." 43 Finch's post-trial career furt her enl1anced his image. Prom 1930 to 1934, he served as dean of the University of ldaho College of Mines, then was tapped to head the United States 13ureau of Mines under Secretary of the lnterior JJarold Ickes, from 1934 to 1940 (this despite an initi al flap over Pinch being a Republican, seemingly out of p lace in f ranklin Roosevelt's New Deal adminis tration, althoug h Ickes was, too).44

Another Butler expert, Pred Secu·ls, Jr., was also a ffi liated wi th Wingfield's Goldfield Consolidated, as a geologist on the pay roll for three years and n consu lting geologist afterward . A 1909 graduate of the University of California '"'ho studied under Andrew Lawson, Searls was just starling his geological consulting career. ln this case, Semis's stt1dy of ore deposits in tertiary volcanic rocks made his testimony valu<rble to the Butler company. On the sta nd, he mentioned his work for the "Gunn-Thompson people" and other consulting engagements. Al most a decade late1.~ in 1925, Sea rls joined the finn nev,rly formed by Cunn-Thompson people, Newmont Mining Company, and became famous as a top executive with industry leader Nevvmont for several decades. That Searls would serve as a good witness in mining law cases was perhaps no surprise, given his family history. His grandfather, Niles Searls, his father, Pred Searls, and two of his brothers, Carroll and Robert M. Searls, all p racticed mining Jaw in California. Robert Searls, the younger b rother of Pred Searls, Jr., worked in Lindley's office as a junior attorney, and appeared in the acknowledgments to the 1914 edition of Uudley 011 Miues.~5

The 13utlcr also retained Andrew C. Lawson, then acting dean of the school of m ines and professor of geology at the University of Califo rnia, as an expert w itness. One of the fi rs t Ph.D. degree recipients in geology from the johns Hopkins University, in 1888, Lawson was invited to Uerkelcy as a professor by joseph LeConte. La,.vson taught there until h is ret irement, in 1928. He chaired a commillee of geologists pul together immediately after the 1906 San Francisco earthquake; their report was a landmark in the understanding of seismic activily.'6 Lawson's s tudies of ore deposition made him a valuable witness in apex cCJscs. H.e worked on many of the cases that Lindley tried, including the ea rlie r defense of the MacNamara agai nst the West EndY

The mining and geology experts who testified for the West End were no less distinguished. Their primary geological ,.vitness was Horace V. Winchell, co-founder and president of the Geological Society of America (and son of a famous geologist). Winchell co-authored the first scientific analysis of the

110 ERIC i':YSfR0\1

Mesabi Iron Range, and was an important expert in " varie ty of other mining legis lation. After Anaconda Copper hired him in 1898 to set up its geological depa rtment to prepare for apex litigation, he he lped develop a system of traci ng gcologie<ll ::;ections onto semi-transparent ve llu m to sec several at once e1 nd vi ::;uali:le the over-all relations. Anaconda won most of its famous a pex suits based largely on testimony by Winchell and the geologists who worked for him. 1-lc started his own consulting business in 1908, and testified for cl ients all over the world, despite his own well-documented misgivings about the wisdom of the apex law.4s

The West End nJso used testimony from Walter 1-J. Wiley, a well-respected mining engineer who had been one of the first graduates of the Colorado School of Mines, in 1883. By the time the trial began, Wiley had had a thirty-five-year c<t recr in mine examination and litigation worldwide:19 The West End also reta ined the forty-six-year-old American-born Edmund juessen, who learned engineering at Freiberg and received a doctora te of natural sciences at Zurich i 11 1890. Li ke many engineers of his era, he worked several mines in the West early in his career, including two years as manager of the Pittsburg Silver Peak Gold Mining Company, at Blai t~ Nevada, near Tonopah. After resigning in1911, Juessen moved to the Bay Area and worked as a consulting mining engineer.50

Both companies rounded out their team of experts with local~ who knew the d isputed spaces intimately. During the trial individual miners were called to testify briefl y, but only one man on each side testified at length to local conditions. The Butler team hired Fred Siebert, a longtime resident mining engineer of Tonopah, for whom one of the major faults in the district had been named. Siebert had held many technical positions in various Tonopah mine~,

including a stint as me1nager for the Tonopah an.d Salt Lake p roperty in which Dickson was a major investor.51

The West End's local expert, Johrt W. Ch<tndleJ~ hncl long experience with d isputes over Tonopah veins. Thirty-eight years old when he took the stand in 1914, Chand le r had graduated in 1901 from the Colorado School of Mines, and worked in 'lonopah from about 1904 to 1910,52 mainly as superintendent of the MacNamara, which adjoined the West End to the north. In 1908, the two companies d iscovered that each had an apex claim on a vein that dipped shallowly into the o ther 's prope rty. (The "north di ppi ng vein" in the West End's case against the Butler was the ve in that d ipped northerly in to the MacNamaru.) Both sides did extensive work to prepa re fo r a tria l, but a late compromise averted litigation . The deal, which the historian }uy Ca rpenter deemed more favorable to the MacNamara, forced the two companies to respect their mutual side line as a vertical boundary. The next yeat~ in l909, Ch<tnd ler's MacNamara followed the same north dipping vein northward out of its cla im into the Tonopah Extension's g round. The MacNamara and Tonopa h Ex tension prepared to fight in court, but, aga in, the MacNamara secured a compromise: g iving up its apex right in exchange ro r the Tonopeth

"Brillia11f Colllillgcllcy

Extension yielding for mining trespass sides agreed to resf

T n the 1908 case and Lawson to prep the other side. In his c one vein and it was he had to espouse tl that add itional devel End <tttorneys tried 1

been coached to see huff by pointing oul vein] has always bee returned to the distri after p reparations for

Despite the large conducted, observer newspaper called th millions ... from the visitor that enormom suggested th<lt friend have been unusual,< proceedings seemed likely encouraged by Dickson had squarec won''~-and even bef in Jim Buller v. West E.

rnining casc.59 The cl a remote boomtown current and former T party underground ir

At the tri<ll's con· honor the visitors, w

music entertained th as Judge Averill, wh Perhaps not uncxpec1 of bar associations fc need for lawyers to <

gave an "extended a the standard of the p b·ied in the Reveille d foresight in selecting of the saloon in w hi

ERIC N~rRoM

lriety of other mining :>set up its geologic<1l develop a system of

1 to see several at once 's t of its famous apex !ologists who worked 908, and testified for tted misgivings about

\Tiley, a well-respected >f the Colorado School had a thirty-five-year

•9 The West End also Juessen, who learned Ira! sciences at Zurich :raJ mines in the West : Pittsburg Silver Peak lfter resigning in 1911, tg mini ng cngincer.so -vith locals who knew .al miners were called ied ut length to local lime resident mining 1 the dis trict had been rious Tonopah mines, tke property in which

long experience with ten he took the s tand ·ado School of Mines, 1ly as superintendent te north. ln 1908, the on a vein that dipped ng vein" in the West ?d northerly into the : for a trial, but a late ;Lorian Jay Carpenter te two companies to he next year, in 1909, ping vein northward l'he MacNamara and ain, the MacNamara mge for the Tonopah

"Brillinnl Conlingmcy of Legal Talrnl ami Mi11i11g Experts"

Extension yielding its right to triple damages (penTtittcd under Nevada law for mining trespass) on the ore the MacNam<1ra had already mined, and both sides agreed to respect the vertical boundary.5·1

In the 1908 case against the West End, Chandler worked closely with Lindley and Lawson lo prepare the MacNamara's defense, hut now the manager was on the other side.ln his earlier work with Lindley, Cl1andler held tltat there was indeed one vein and it was an anticline, but in the context of his work for the West End, he had to espouse the two-vein theory. He justified his reversal on the grounds that <tdditional development work proved his earlier statement<; wrong, but West End attomeys tried to preempt criticism by encouraging Chandler to say he h<td been co<tched to sec a siJ1gle vein in the earlier case. Lindley dism.issed thjs in " huff by pointing out, "Certainly he knO\•VS as everybody knows that [the sing le veinl has always been my position and J have not changed it either."~ Chandler returned to the district and became West End superintendent on October 1, 1914, after preparations for the Butler h·ial were well under way.55

Despite the large sums of money and legal reputations at s take, the trial w<ts conducted, observers sald, w ith a remarkable amount of friend]jness. The local newspaper called the trial "one of the happiest gatherings of men representing millions ... from the amenities displayed by counsel it would not strike the casual visitor that enormous sums were s taked on the result."""' The historian Clark Spence suggested that friendliness belv.'cen opposing parties in mining litigation may not have been unusual, Clt least umong expert witnesses/ but the Jim Butler-West End proceedings seemed particularly gracious. 57 The lead counsel probably set the tone, likely encouraged by tbc mining Jaw fraternity's relatively small size. Lindley and Dickson had squared off in at least one apex trial earlier in their careers-Lindley won'~-and even before the Uni ted Stales Supreme Court decided the fina l appeal iJ1 jim But/en;. West Enrl, Dickson and Lindley had worked together on a complex mining case.'~ The closeness of the professionals who hud worked and lived in a remote boomtown may also have contributed to the amity, at least among the current and former Tonopahns o.n both sides. One evening, Lindley even bosted a party underground in the mine.w

At the tTial's concl usion, the ye County Bar Association threw a b<~nguet to honor the visitors, with newly elected president H. R. Cooke as toastmaster. Live music entertained the guests, including all of the lawyers for both sides as well as Judge Averill, who was seated nt the pluce of honor at the head of the table. Perhnps not unexpected, the speeches began even before the meal ended. The topic of bar associations formed a common but unsurprising theme that sh·cssed the need for lawyers to cooperate for the good of their common profession. Lindley gave an "extended address" about the value of bar associations and "elevating the sta.ndurd of the profession." T fe concluded with a st01y about his "first case," tried in the Reveille dis trict of Nevada: "No verdict was reached, because of luck of foresight in selecting a referee, as well as to the i11fluences exerted by the contents of the saloon in which the c<tse was tried."61 Lauded for building the evada

112 ERIC Nvsmm.1

Bru·'s membership, Brown replied by recounting the most recent American Uar Association meeting's proceedings and describing the thrill of being admitted to

practice before the United States Supreme Court. After other speeches in a similar vein, Lindley was called upon to read the third rendition of the doggerel poetry he had w rillen about the proceedings. The banquet concluded with Averill's thru'lk.c; to the Nye County Bar fo r the ir support of him, and to the assembled attorneys for an inte resting and well-mannered trial. The legal proceedings had concl uded, the newspapers reported, without Averill being asked to rule on a s ingle objection.~2

The conviviality was dearly a product of friendship in a relatively small circle of mining attorneys and experts. Each side's .lawyers and experts had vvorked with each other on nwltiple occasions, and in many cases, professional and personal connections led to semi-regular teams (or this kind of work. Many of the experts and lawyers from outside Nevada had participated in earlie r lawsuits in the area. Besides Dickson's early experience "vith Tonopah, Lind ley (and probably other members of his team, such as Lawson and Lester C. U ren) worked for Lhe MacNamara (with John W. Chandler as superintendent) during iLs apex h'Oubles in 1908 and 1909. An apex suit in 1906 in Goldfield between the CombiJ1ation Company and the Mohawk Mine featured many of the same experts as the later Butler case, including Find1 and Wi.nd1ell.&J

The backgrounds of many of the witnesses and lawyers for the Butler

suggest the importance of several sets of personal connections . There was clearly a northern Califomia crowd, perhaps centered on the University of California, Berkeley: Lindley had been associated w ith the school; Colby taught mining law at the law school from 1911 to 1937,M Lawson taught there, Clnd Searls graduated from the geology program after working with Lawson. Searls had anothe r, more familial, connection with Lindley: A junior attorney who worked for Lindley's practice (though not on the Jim 13utler case) was Robert M. Searls, the expert geologist's younger brother.65 These informal connections a mong experts sometimes cotu1.ected to other networks of relationshjps, such as the Nevada establishm ent politics of George Wingfield, who made his fortune with the Goldfield Consolidated ru1d parlayed his wealth and co1u1ecl.ions into an informal, but very real, role as a political kingmaker and bipa1'tisan power broker in Nevada. Ilugh Brown was closely associated with the Wingfield machine, as were several of Brown's friends, such as Tasker Oddie (governor and United States Senator, and one of Tonopah's fow1ders). Oddie was one of the part owners of the Tonopah Belmont, which also controlled and directed the Butler. Lindley may

have represented Wingfield; Colby later remembered that he had done legal work for "some of the Goldfield intercsts."66 Siebert and Finch both provided Wingfield w ith technical expertise. The presence of so many Goldfield Consolidated experts also testified to the Butler s ide's a lliance with the Wingfield interests.67 In addition, many of the Butler's experts, including Lindley, Colby, Lawson, and Uren, had worked together before, and probably formed an informal regula r team for mining litigation.

"Brilliaut Coutiugeucy of

These informal f this trial \vorked tog•

Lindley and Colby in example is in Silver 1 which Lindley and C in the only United S precedent. The poinl Lind ley and Dickson

This was the grm the trial between the December 7, 1914, an lawyers and experts z to his seat in the Fifth some of these expert~

among them on the reared in Virginia Cit: before serving fifteen began in Tonopah in · the legal team for the the West End and the

Averill and some of agreed to avoid the a and have Averill pas~

Neither side spa1' Each of them create models to help make a hodgepodge of cole or phenomenon on it encompassing, coheJ the w1derground mil maps and vertical se• maps were represen created to the same v tedmical sophisticat statement about the

The West End's r

pictures. The model, proof of facts, actua vein's geology. The Though the rock in tl the South Vein a bri is particula rly notic model makes it "ol

ERIC NYSTROM

·ecent American Bar )f being admitted to :;peechcs in a ~imilar e doggerel poe try he Nith 1\verill's thanks ~mbled attomeys for ; had concluded, the 1 single objeclion.62

elatively small circle

rts had worked with .sional and personal Many of the experts ·lier lawsuit~ in the

dley (nnd probably rcn) worked for the

ng its npex troubles ~n the Combination

~ experts as the later

yers for the l3utlcr s . Tb ere was clearly ersity of Califomia, )]by taught mining t the re, and Sea rls ~awson. Searls had orney ,.vho worked IS Robert M. Searls, :o1mcct ions among tships, such as Lhe de his fortune \·Vith onnections into an :hsan power broker :1gfield machine, as Jr and United Stales the part owners of 3utler. Lindley may ad done leg<~ I work )rovided Wingfield

)nsolidated experts ~rests .67 ln addition, ;on, and Uren, had I regula r te(lm for

"Brilliant Contingency of Legal Talent aud Mininx Experts" ll3

These informal partnersh ips could be fluid, as even the opponents in this trial worked together occasionally. Searls worked with Winchell agains t

Lindley and Colby in the "Big Jim" case in Arizona in 1920.68 The most s triking example is in Silver Kiug Con/ilicm Mines Co. v. Conkliilg Mi11in.g Co. (1921 ), in which Lindley and Dickson (along with J\. C. Ellis) v.rorked for the same s ide in the only United States Supreme Court case ever to cite the BuNer case as

precedent. The point of law supported by the Tonopah case led directly to Lindley and Dickson earning the victory.69

This was the gTOup of lmvyers and experts who converged on Tonopah for

the trial between the Jim Butler and the West End. The trial began on Monday, December 7, 1914, and the court began taki11g testimony the following day. The lawyers and experts addressed themselves only to Judge Marl< R. Averill, elected to his scut in the Fifth DistTict of Nevada in 1908. Averill was {ami liar with at least some of these experts and lawyers, and they with him, as Averi ll had once been among tl1em on the o ther side of the courtroom. A native Nevadan, born and reared in Virginia City, Avc1ill received at least a lillie formal education iJl mining before serving fif1een years as a public school administrator. J\veiill's legal career began in Tonopah in 1903. He served closely with Lindley and Chandler as part of the legal team for the MacN<tmcra as it succes.<>fully fought off apex threats from tbe West End and the Tonopah Extension.iO Despite the cozy connections between Averill and some of the participants on both sides, the Butler and the Wes t End agreed to avoid the additional complexity, uncertainty, and expense of a jury h·ial,

and have A veri II pass judg111ent alone71

Neither side spared any expense to make its story more convincing to the judge. Each of them created mine maps, geological diagrru11s, and tlu·ee-dimensional models to help make its case more convincingly. The Butler models and maps were <1 hodgepodge of colors and scales, each calculated to best portray a certain feature or phenomenon on its own. The West End's visual representations reflected a more encompassing, coherent strategy. The West End used a large "skeleton model" of the underground mine, seen in Figures 3 and 4, as a "key" to connect its horizonta l maps and vertical sections together into a unified whole. t<ealw-es on the West End maps were represented by the same colors as on the company's model, with all created to the same vertical and horizontal scale. Together, the coherence, wuly, and technical soplusticnlion of the West End's visual representations made a powerful

statement about the state of the underground. The WestEnd'smodclsand maps,hm·vevel~ were not merely "b.uthful,"neutral

pictures. The model, referred to throughout the trial as if it were evidence, a simple proof of facts, actually embodied the West End's a rguments about the disputed vein's geology. The choice of paint colors made the most powerfuJ arguments. Though the rock in the vein (or veins) was essentia lly identical, the West End painted

the South Vein a bright red on the model, and the North Vein a vivid yellow. This is particularly noticeable when the two veins come together. One glance at the model makes it "obvious" that there are two veins! The arbitrary color choice

11 4 ERIC NYSTROM

Figure 3 & 4. Different views of the West End Consolidnted Skeleton Model (1914). Photogmphs by Eric Nystrom. (W.M. Keck Museilm, Mackay School of Mi11es, U11iversity of NC?varla, l~erw)

"13rilliant Conlingency <

is made more clear branch of no direct The West End team distinctions. For exa and the andesite, wl the two rocks that virtually identical t

the basis of s light c microscope. Geolog; presence of all of tho model m<tde a stark origins, because sue the ore, w hich in tur The rock from the ' model, was identic< the impossibility of removed from the rr which they were or maps and geologica: and color scheme, p the truth of the Wes l

The testimony c< the lawyers orally aq issued his verdict. P came as a bit of a she Butler had made twc had any been found invalid, preventing tl the vein took the for not be followed extr; the Wes t End cl<tim howevet~ Averill su1 indeed a single vein. the original mining I had an apex. If that' in fact the vein's ap< Cases had no releva 1f the anticli ne was Wes t End's claim, re< rights in botb directi< territory.77 The Bu tle1

eventually to the Ur upper courts decla re

ERIC NYSTROM

clon Model ('1914). •ol of Milzes, U11iversily

"Rrillianf Co11/in~el/cy of Legal 'Jiilent a11d Mi11i11g T:xperts" 11.'5

is made more clear by the decision Lo paint the haclion Vein, a third vein or branch of no direct consequence in the suit, the same red as the South Vein. The West End team also used colors to emphasize arguments about geological distinctions. For example, on the model the trachyte rock was colored purple, and the andesite, which formed part of the cap rock, a light green.n Howevet~ the two rocks that the widely diffe rent colors represented actually looked virtually identical to the naked eye-the distinction ,.vas justified only on the basis of slight differences visible in carefully prepared slides under the microscope. Geological experts who studied the district disagreed on even the presence of all of the rocks, much less their proper names.n Yel the West End model made a stark distinction between two very similar rocks with uncertain origins, because such a d istinction supported their theory of the formation of the ore, vvhich in turn supported their two-vein distinction for legal purposes. The rock from the veins, so clearly distinguished as red and yellow on the model, was identical-looking quartz. Even the West End's experts admit1ed the impossibility of telling apart samples from the two veins if they had been removed from the mine; the only difference was structural, in the direction in ,.vhich they were oriented in the ground 7 ·1 The West End's two-dimensional maps and geological sections, which conformed to the same scale, numbering, and color scheme, provided a unified and consistent chromatic argument for the truth of the West End's geological nssertions.75

The testi1nony concluded on December 22, 1914. During March 8-11, 1915, the lmvyers oraJJy argued the case before the judge, and on April30, 1915, Averill issued his verd ict. Averill's decision in the case, and his reasoning behind it, came as a bit of a shock to those who had been fo llowing the proceediHgs. The Butler had made two sorts of arguments. They posi ted several assertions which, had any been found to be true, would have made the West End's mining claim invali d, preventing the exercise of extralateral rights. The Buller also argued that the vein took the form of an anticline, vvh.ich had no apex, and therefore could not be follmved extralaterally. None of the Butler's objections to the validity of the West End claim convinced the judge. On the two veins or anticline issue, however, Averill surprised everyone. He agreed wilh the Butler that it was indeed a single vein, in the form of an anticline.i6 Averill noted, however, that the original mining law was worded in such a way as to im.ply that every vein had an apex. If that were true, Averill decided, then the top of the anticline was in fact the vein's apex, since it could be nowhere else; therefore the Leadville Cases had no relevance as precedent because the veins substantially differed. 1f the anticline was in fnct the apex, and that anticline-apex was inside the West End's claim, reasoned the judge, the West End was entitled to extralateral rights ln both directions out the sideli nes of ils claim, including into the Butler's territory.77 The Buller appealed the decision to the Nevada Supreme Court and eventually to the United States Supreme Court, bul lost both times 'vhen the upper courts declared Averill's in terpreta tion lcgnlly justifiable.78

116 EHIC NYSTROM

The outcome of the trial meant ruin for the Butler and prosperity for tl1e West End. The stock o.f both companies had increased in value during the suit, because the West End was allo·wed to continue to mine and mill the ore.79 All of the profits from the ore were placed in an escrow account, which exceeded $400,000 by the time the last appeal was finished. This figure is profit from the ore only, and does not include the triple damages at stake. When the Butler lost the suit, the West End gained control of the only productive parts of the Butler holdings. The comp<~ny w<ts reorgunized to pay down some of the debt of the Tonopah Belmont as well. Lacking proven reserves or the capital to conduct a full-scale exploration for more ore, the company leased remaining pockets of the Butler mine to small miners fo r more th<tn a decade, but income front this source was minuscule, unci the company never regained anything like its pre-tri<tl prosperity. Tn 1938, the Tonopah Mining Company bought control of the Butler for less than $3,000 and conducted some exploratory drilling, but found nothing worthwhile, though teasers occasionally shipped out ore as late as 1947.80

The tri<tl had a significantly better outcome for the West End Consolidated Mining Company, <~S might be expected. The company made significant profits in the years during and immediately after the trial (except for 1919, when a large strike hurt production at all Tonopah min~::~s). Prosperity led to investments in mines outside of Tonopah, which proved to be a drain on the company as profits from the West End's Tonopah property financed the costly experiments elsewhere. Even with the baggage of failing mines, the West End continued to make profits, though on a diminishing scale, into the mid 1920s, largely on the strength of its Tonopah output. (Radical drops in the price of silver in 1923 also significantly affected the profitability of the West End and other Tonopah operations.)81 The trial itself was expensive- it cost the company almost $115,000-though the victory put the West End firmly in the black. The company spent $79,469 on trial preparations such as development work and model making, and lawyers' fees for the trial amounted to an additional $35,000.s2

The little cabal of mining litigation experts was doubtlessly the least affected by the ou tcome. For Lindley and Dickson, the distinguished old lawyers, the decision came in the twilight of th.eir careers, for neither would live a decade more. Nor would Winchell, the geologist, who was in the prime of his career when he died, in 1923. Younger lawyers and experts, including Finch, Searls, and Colby, had long careers and significant accolades in their futures. Some of the locals, especially Brown, Atkinson, nnd Judge Averill himself, continued their careers in Nevada and tackled questions of mining law only infrequently thereafter.

The Tonopah public seemed relieved to have the case over. Minjng towns had developed a strong nversion to lawsuits over clnims and to those legal and geologicttl experts who were part of the process. Apex litigation, in particular,

"Brilliant Contingency of

eamed a reputation speculators seeking to productive companie~

and frightened invest< Tonopah newspapers litigation, and played )mvsuit.s.1 Many minir as the biggest proble against it whenever p the day when the cnt be replaced with a me

The Tonopah Dail: legal revolution in m

This decision throughout th possess minin settlement of litigation and' a change in Ot

Other denizens ofT or a satirical article publ "The Waugh Kid" att The Kid read the verd it. "I'm glad now I unc possible exception of Kid. Bill considered tl of beans a gin' a gwnf with Bill's explanatic part of the geological as a mine rat," Bill t< coyotes away from w reported the Kid, "bu the definition. Each c

The next fell' don't know j decision, but see some oft exclaimed, ", unything abc sub-obvious,

ERIC NYSTROM

l. prosperity for the lue during the suit, d mill the ore?9 All nt, which exceeded rc is profit from the e. When the Butler luctive parts of the m son1e of the debt ~s or the capital to y leased remaining iecade, but income regained anything Company bought some exploratory

casionally shipped

:End Consolidated · made significant tl (except for 1919, I. Prosperity led to ) be a drain on the financed the costly .incs, the West End . nto the mid 1920s, :lrops in the price y of the iVest End ~ns i ve-it cost the tEnd firmly in the :has development I amounted lo a n

tbtlessly the least distinguished old for neither would ) was in the prime experts, includ ing accolades in their ::md Judge Averill .estions of mining

ver. Min ing to,vns to those legal and. tion, in particular,

"Brilliant Conlingenet; of Legal Talent and Mining Experts" 117

earned a reputation as b(~ing the preferred tool of "courh·oom miners" and spccu Ia tors seeking to ,.vrest control of valuable ore bodies from honest miners and productive companies.83 Lawsuits tied up valuable mines, left miners ou t of lvork, and frightened investors wary of risking capital on properties with title in doubt. Tonopah newspapers usually worked diligently to squash rumors of im.pending litigation, and played up U1e importance of any negotiations iliat might avoid a lawsuil.84 Many mining men (and newspaper editors) held up extral~teral rights as ilie biggest problem with a deeply flawed national mining law, and railed against it whenever possible as wasteful and litigation-prone.85 Some anticipated the day when the entire arcane system would collapse of its own absurdity, and be replaced with a more ,,vorkable and less wasteful procedure.86

The Tonopah Daily Bonanza's edit01~ W. W. Booth, clearly had this evE-~ntual legal revolu tion in mind when he analyzed the outcome of the case:

This decision will clarify problems existing not only in Tonopah, but throughout the United States and in other countries so unforhtnate as to possess mining laws similar to our own. Undoubtedly it will result in the settlement of many cases that would otherwise have resulted in costly litigation and will likewise exercise a powerful influence in bringing about a change in our mining laws, which will make them litigation-proof.87

Other denizens of Tonopah may have been less clear on ilie outcome's meaning. Tn a satirical article published about thn .. 'C weeks after Averill armounced his verdict, "The Waugh Kid" attempted to understand the meanjng of the momentous case . The Kid tead the verdict aloud, while his companjon, "Silver Bow Bill," explained it. "I'm glad now T understand it, because l know thateveJybody else does (with the possible exception of the lawyers) ar1d it is not pleasant to be ignorm1t," wrote the Kid. Bill considered the decision so easy to understand, in fact, that "he'd bet a pot of beans agin' a gump stew that one of his burros could sa be it." Tl1e onJy problem with Bill's explanation was a bit about "haloes," which had been an important part of the geological testimony concerning the asserted apexes. "Looking as wise as a mine rat," Bill told the Kid that a halo was the type of fence used to keep coyotes away from watering holes on the cattle range. "13ill may have been right," reported the Kid, "butT was not satisfied," so he proceeded to ask local citizens for the definition. Each of t11em dissembled about the true meaning of the term:

The next fellow T met was Jimmie Blair of the \·Vest End company. "1 don't knmv just what that word means. I noticed it when I read the decision, but could not tell just what His Honor meant by it. Better see some of those lmvyers. They can probably tell you." "Lawyers!" I exclaimed, "why, they do not even understand the decision, much less anything about 'haloes' and 'sub-parallel fissures.' Your suggestion is sub-obvious, Jimmie."

118 Emc NYSTRoM

Finall_Yt the Waugh Kid encountered the loca l professor of mining, who explained it to him. But the Waugh Kid didn't let the readers in on the joke: "1 was surprised to learn that I had known what a halo was for years and years. Any miner knows what a halo is, so why take time to explain so simple a word in a great mining community like this?"88

The Tonopah locals were not the only people to poke fun at the trial. Lindley, the lawyer for the Jim Butle1~ wrote doggerel poetry during the proceedings, and his reading of his third and final effort at the Nye County 13ar banquet was reprinted in the newspaper for everyone to enjoy. His last poem covered the enti re trial, noting the distingLiished lawyers and experts by name:

So, to settle their righ ts and stop any fights And possible dangerous mixin', They saved all their dimes and mortgaged their mines And hired both Lindley and Dickson. Then the experts arrived and soon contrived By models and colored designs To create the impression by technic expression They knew all there was about mines. And Winchdl asserted and wouldn't be diverted, His yellow, reel veins were a doom, For Wiley, persistent, and not inconsistent, Had painted them so with a broom. The question of fau lt came next to a halt The "Siebert" came nearly croakin', When J uessen explained and softly declaimed He called it that only when jokin'. Lawson and Finch mCJ intained 'twas a cinch, As p lain as the nose on your face, 'Twas an anticline bold-a geological fold, Of two veins there was never a trace. And Siebert and Searles followed twists, turns and curls, And traced every crack to its lair. Till the court in his weariness, just from sheer dreariness, Fell fast asleep in his chair.89

In the end, the Jim Butle r-West End apex case is perhaps most notable not for the precedent it set, but for the experts involved in the trial and the view it provides into the close-kn it wo rld of American mining law just after the tmn of the twentieth century. Mining was a business, and it operated in a legal context that affected operations just as significantly as traditional questions of ore and labor. Mining companies hired legal experts to try to gain the upper hand against their competitors, defend themselves against trespuss, and coordinate

"Bri/lia11t Contingency c

the over-all present lawsuits. These expc and hired world-fa1 firms were willing for a new milling J effectively in there. appreciated, part of

ERIC NYSTRO~i

rofessor of mining, who readers in on the joke: "I was for years and years. explain so simple a word

ce fun at the trial. Lindley, during the proceedi ngs, County Bar banquet \•vas

is last poem covered the ·rts by name:

~ir mines

t ed,

tS and curls,

· dreariness,

perhaps most notable not in the trial and the view it tg law just after the turn of Jperated in a legal context ional questi ons of ore and · to gain the upper hand t trespass, and coordinate

"Brilliant ConlingenL:lf of Legal Talent and Mining Experts" 119

the over-all presen.!alion of the company's side as effectively as possible in lawsuits . These expert attorneys used models and maps to illustrate testimony, and hired world-famous geologica l experts to explain tl<eir positions. Mining firms were willing to pay handsomely for these services, as they would pay for a new milling process or piece of mining machinery, because operating effectively in the realm of mini ng lavv was an im portant, if sometimes under­appreciated, part of n1anaging the business o{ mining.

120 ERIC NYSJ'ROM

NoTES

1 Minin~ law hn~ been receiving increa~ing attention from histori<ms. Cordon Morris 13akken, The Mining Law of 1.'172: Past, Politics, awl ProspeL'I~ (Albuquerque: University of New Mexico Press, 2008), is a well -known leg<~l histori;lll's recent take on the law. Charles W. Miller Jr., Stake Ycmr Claim! The Tirle nf America'.~ Enduring Mhring Laws (Tucson: Westernlore Press, 1991), sees the survival of the mining laws as proof of the validity of the frontier thesis. William T. Parry, All Veins, L(>des, awl Ledge.> llmmglrout Their C:ntire Dt'ptlr: Ceolo:~y and tire Apex !"IV in Wah Mines (Salt Lake City: University of Utah Pres!>, 200-l), is a well-executed recent study of extr<1lateral rights that mainly focuses on Utah cases. For the Com~tock Lod1', where tlw courts worked out many of the early disputes about cxtrala teral rights, S<~e Bruce Alverson, "Tlw Limits of [>ower: Comstock Li tigation, 1859-1864," Nevada Hi~torica/ Society Qunrlerly, 43:1 (Spring 2000); 74-99. john D. Lcshy, Tire Mining l.nw: A Study in l'<'rllt'tual MrJtion (Washington, IJ.C.: Resources for the Future, Inc., '1987), MAues that the law is outdated and should be reformed. For a trans-na tional perspective, see B<lrry Barton, "The 1- listory of Mining Lmv in the U.S., Cannd~, New Zeal<1nd and Austrati,1, and the Right of r:rec Entry," in lutematiotwl and Compnmtive Milwml Law nud Policy, Elizabeth Bastida, Thomas Walde, and Janeth Warden-Ferm1ndez, eds. (The 11.1guc: Kluwer Law International, 2005), 643-60.

'Sec Russell R Lilliott, Nevada's Tweutieth-Century Mining Boo111: Tonopalt, Goldfield, [/y (Reno: University of Nevadn Press, 1981l), Robert D. McCracken, A History of Tonopah, Nemda ( l'onopah: Nyc County Press, 1990); Jay A. Carpenter, Russell Richard Elliott, ,md Byrd !'anita Wall Sawyer, Tire I listory of Fifty Yt•nrs of Min itt~>: nt Tonopnlr, 1900-1950, University of NevCida Bulletin, vol. 47, nn. l, Ccnlogy and Mining Series, no. 51 (Rl:no: Nevnda 11ureau of Mines and Geology, 1953), 55-58, 130-JS. Production s tatist ics are on p. 149.

'Carpenter, Elliott, and S;nvyer, History of Fifty Yrttr~ of Mining, 52. 'Ibid., 52, 66, 96. 5/bid., 52-53. SmiLh wns old (ri ends with some of the original locators, who had worked wiLh

him nt his firs t borax operation, near Candcl11ria, Nevada, in the 1880s. See I-I ugh A. Shamberger, Tlte Story of Ctmdelaria nml Its Nt>igllbors: Columbus, Metallic City, Bc/J.:"il/e, Mnrif'ltn, SotltllJille, nnd Conldnle, Esmeralda mtd Mi11eml Cotmties, Nt7!lldn (Carson City: Ncv11di1 Historicnl Press, 1978), 135-38.

•carpenter, Elliott, and Sawye 1~ History of Fifly Years of Mining, 66-67. 7"Jim tlutler Comp:my Commences Suit ngainst West End Con," Tonopah Miner {11 April

1914). The West End disputed the charges, even to the extent of disputing the tonnage and value of ore mined. The West End claimed, before the trial, lhat it had mined only 23,341 tons of ore with an "aggregate net va lue" o( $204,300. "West End St.1nds Pat on Clnim of Clcnr Cut Apex," Tonopah Onily Bonanza (7 July 1914).

s"Wcst End Officers in Conference in New York," Touopalr Daily Bounnza (3 Aprill914); "Cotmter Proposition of Butler Reported by New York Message," 'fouopalr Daily Borumza (4 April 1914); "West End Stands Pat."

9'fhe 1872 mining law g<Jve claimants "all veins, lodes, nnd ledges throughout their enti re depth, the top or apex of which lies inside of such surface-lines extended downward vertically, although such veins, lodes, or ledges may so fnr depart from a perpendicular in their course downward as to ext<•nd outside the vertical s ide-lines of s11 id surface locations." See An Act to Promote the Development of the Mining Resources of the United Stutes, U.S. St<J tu tes at Large 17,91-96, quote on p. 91-92.

11tfhe two most important c11ses were lrort Silver Miuin,-o: Co. v. Clteesmau (1886), Jl6 U.S. 529, 6 S. Ct. 481, 29 L. Ed. 712; and Iron Silver Mining Co. v. Murplry et nl. (1880), 3 F. 368. See nlso Rossiter W. H11ymond, "The Law of the Apex," 'fnmsactious oft lit: Amerimu lm;litrlle of !VIiuiug F.nsiueers, 12 {1884), 387-444.

""Jim Butler-West End Trial Concluded with Dispatch, Poetry, Banquet, nnd No Ill Feeling," 'fimopalt Daily Bo11nnza, (22 December 1914). For more details on most of the experts and lawyers, see "Crand Calaxy ofTalcnt in the Butler-West End Suit," 1bnopalr Daily Uonnnza, (17December 1914).

12William E. Colby, "Curtis Holbrook Lindley," Califomia l.nw Revir.o, 9 {1921), 87- 99. ''Curtis H. Lindley, A Treatise on tire American l.nw Re/ntiug to Mim.>s 1111d Mineral l.nnrls within

the Public Laud, States a11d Territor·h•s aud Govcming 1/rt: llcquisitio11 aud Cnjoyml!llt of Mi11i11K Ri,~:lrts

"Hrilliaul Co Hti11gency o

in Lmrds of the Public Vom Lindley's 1913 <1rticll' on . Problem in F.x tra la teral I{

1'Colby, "Curtis Hoi~

Copp's "U.S. Mineral Lan 1880, Wade's "Americ.m 1

·~curtis H. Lindley, , tire Public L.nwi, Stn/c:;, 11111

in t11uds of tlu· Public /Jom A Treati~e 011 lite Americnn nrrd Territorie;; aud Gol'l'fll• Dvmniu, 2d ed. (SCin Fran·

••colby, "Curtis I loll 17 A simple search of

Ncxis turns up more tha1 some very significilnt tr i< 171 u.s. 55 (1898); Clippt!l nnd Mill. Co., of Montana Co. u. llin/11 Trwuel Mi11. a Hrowu v. Gumcy, 20 1 U.S. and Mill Co. 11. Emer<ou, 2 (1915); HoJikius v. \Valka,

•sHorace V. Winchel' '1914): 598-602.

'"Rossi ter \•V. Haymo

Mineral Lands, Etc.'," £u 20for a list of some o

Lindley's Bunker Hill we Great Miuiug Company, U

z•cotby, "Curtis llol 1\merimn Biography Bnse Biography Resource Cen galegroup.com I sen, let/'

2211erbert Hoover, f, The Macmillan Com pan:

2.1Colby's cl11im th<lt : recollection of the dnte is then Hoover had been a\· reputation as an expert rr Coriwre 1... Gilb (Berkeley:

2'"Buller Geologis t I 1914); "jim Butler-West E Touopnlr Daily Bounuzn (2.

2ssee Colby, Remiuis Amerim's Most Coutrover: University Press, 2005).

:..oon H. Sherwood, Law Instil life, 35 (1989), ·1

Extralatcml Right: Shall Extralateral Right: Shall Right in the United State Right: Shall It Be Abolist 18-36; and idem, "The Ex Reui~v, 5 (1917), 303-30.

27Stephen Cresswell Euforcenreut iu tire South r

ERIC NYSTROM

;. Gordon Morris Bakken, tiversity of New Mexico harles W. Miller Jr., Stnkr !rnlore Press, 1991), sees thesis. Williilm T. Parry,

! Apex Lt1w i11 Utah A·1ines :cnt s tudy tlf extra la lerill rc thr. cou rts worked out n, "The Umits uf Power: 3:1 (Sprin~ 2000); 74-99. 1, D.C.: Resources for the 11ed. For a trans-national anada, Nt•w Zealand and ·e Mi11cml J.nw 1111d l'olicy, :The Hague: Kluwer Law

1pali, Golrlfidd, Ely (Reno: '110pah, Nt•mdn (Tonopah: 3yrd Filllita Wall Sawyer, evada Bulletin, vol. 47, ·sand Geology, 1953),

Nho had worked with II ugh/\. Shamberger, The tn, Sodaville, n11d Cooldnlr, SS, 1978), 135-38. 7. IIOf'nh Mi11er (ll April 'S the tonna~c and value )nly 23,341 tons of ore im of C lear Cut Apex,"

mnzn (3 A pril1914); nli Daily Bounuza (4 April

·hroughout tlwir entire d downw11rd vertically, icula r in their cou rse :alions." Sl'e An Act to , U.S. Sta tutes a l Large

1111111 (1886), 116 u.s. (1880), 3 r:. 368. See also nlllllsliluii'OfMiuiug

?t, and No 111 Feeling," ! experts nnd lawyers, see w, (17 December 1914). w, 9 (1921), 87-99. n11d Miuem/IJJ11ds witlliu joymeut of Miuiug Rixhts

"Brilliant Contingency of Legal Talent ami Mining Experts" 121

i11 Ln11ds of the Public U011111in, 3d ed. (San Francisco: Bancroft-Whitney Company, 1914). Also sec Lindley's ·1913 <Jrticle on a p rominent part uf t·h<' Bulle r-West End n1se: C urtis H. Lindley," A Problem in F.xtra la teral l{ights on Second<~ry Veins," California LliW J<t•uicw, 1 (1913), 427- 38.

"'Colby, "Curtis Holbrook Lindley," 9 1. Colby specifies these early works as: Yale (1869), Copp's "U.S. Mincml Lands," Morrison's "Mining RiBhts," Weeks on Mineral Lands in 1877 and I SilO, Wade's" American MininB Laws" (18.~9), and Sickel's "Mining Laws and Decisions" (1881 ).

';Curtis II. l.indley, A Treatise 011 the Americnul.nw Relnfi11g to Mi11es nud Mi11an/ Lnml~ witlli11 tlw l'ublic Ln11d, Stnt;•,., n11d Territories mul Govemi11g flu• Acquisitiou nud C11joyme111 of M.i11i11s J<iglll> i11 T.muls of fl1f Publir Domnin, lsl ed. (San Fnmcisco: Bancroft-Whitney Company, 1897); idl'm, A 'fi'I'II!isl' 011 the AmaiCIIII Lam Rt?!atius to Miues nnd Mi11emt Ln11ds wifl1i11 fir<' l'ublic T.a11d, State~. 1111d Territori<?S 1/11(/ Gowmi11g tlrt• Acquisitio111111d E11joyn1C111 ojMi11i11g Higl11s i11 Lmtds of fl1e P11l1lic Umuniu, 2d cd. (San Francisco: Bancroft-Whitney Company, 1903).

'"Colby, "Curtis Holbrook Lindley," 92. o; A ;.imple search of any modern legal documentation servin· such as Westlaw or Lexis-

l<•xis turns up more th;m a dozen opinions that explicitly cited "Lindley on Mines," including some very significanllri,,Js. See Del Mo11te Mir1. 11nd Mill. Co. v. I..11St Clumce Min. and Mill. Co., 171 U.S. 55 (1/l9/l); Clipper Miu. Co. v. Eli Min. and Lnnd Co., 194 U.S. 220 (1904); 51. Louis Mi11. rmd Mill. Co., of Mou tnllllli. Mo111111111 Miu. Co., 194 U.S. 215 ('1904); Crecdt• and C. C. Nliu. <md Mill. Cn. !J. Uinfll T1111111!/ Mill. and Tmusp., '196 U.S. 337 (1905); Chrismon v. Miller, 1.97 U.S. 3 13 (1905); Urnw11 v. GumetJ, 201 U.S. 184 (1906); T.awso11 11. U.S. Mi11. Co., 207 U.S. 1 ('1907); Yose111ilc Gold Mi11. and Mill Co. ''· .Emaso11, 208 U.S. 25 (1908); Stt•wm·t Mining Co.''· Ontario Mi11i11g Co., 237 U.S. 350 (1915); 1/opkins t•. Wlllkcr, 244 U.S. 486 (1917); and U.S. l'. Swel't, 245 U.S. 563 (1918).

••Horace V. Winchell, "Review of 'Lindley on Mines,"' [conomic Gt'Oiogy, 9:6 (September 1914): 598-602.

"Rossiter VV. Raymond, "Heview of' A Trea tise on the Amcric;m Law Rela ting lo Mine~ and Mincrill Lands, Etc.'," f·:ugiuceriiiS nnd Miuiug joumnl, 97 (Apriii!l, 1914), 817.

2t'For a Jist of some of these, sec Colby, "Cu rtis l lo lbrook Lind ley," notes 9-16; fo r soo1w of Lindley's 13unkcr Hill work, sec Katherine G. Aiken, Idaho's /J1mker Hill: The Rise nnd Fall oft! Great Mining Cnmpauy, 1885-1981 (Norman: University of Oklahoma Press, 2005), 14, 31, 37-38.

2 'Colby, "Curtis llo lbrook Lindley," 96-97; idem, "Curtis Holbrook Lindley," Dictimmry of Americn11 Bio:o~rnphy Base Set, American Council of Learned Societies, 1928-36, reproduced in Biography Resource Center (Farmington Hills, Michigan: Thomson Gale, 2007). http: / /galcne t. ealegroup.com /scrvlet/13ioRC/, (accessed Ju ly 11, 2011).

22!-Jerberllloove r, The Me1110irs of J-lerbertlloovcr: Y,•nrs of Ad<Jt!/11111'1', 1874-1920 (New York: The Macm illan Company, 1951 ), 27.

''Colby's cla im that Lindley taught Hoowr mining law could be correct only if Colby's recollection of the date i~ mistaken, since he lists the teaching as having taken place in 1909. 13y then Hoover had lx~n away from Stanford for more than a decade and developed an international rl•pulation as an expert mining engineer. William E. Colby, Hemi11isce11a'S: Au Jutert~irw Couducfl•d h!f Cori1111e L. Gi//1 (Berkcle)': Regional Oral History Office, Bancroft Library, 1954), 108-109.

2'"Butler Geologist Presents Vivid Crayon Sketch," To11opah Vnily Bounm:n (16 December 1914); "J im 13utler-Wesl End Trial Concluded with Dispatch; "Muse Inspires Noted Juris t" Tonopah Daily ROIIIIIIZn (23 December 1914).

2'See Colby, l~t'lllillim•nces, esp. 99-100; <111d Robert W. Righte1; The Bnttle over fletch Ht'lrlly: 1\mcricn's Most ·coulrolli'I'Sinl Dmn nud lite Birth of Modem E11virownellltllism (New York: Oxford Univers ity Press, 2005).

""LJon H. Sherwood, "The Extralateral Right: A Last Hurrah?" Rocky Mouutniu Miuanl lAw l11slitute, 35 (1989), 12:2, n. l. The similarly titled articles were: Willi11m E. Colby, "The Extralateral Right: Shall It Be Abolished?" Cnlifomin Lnw Review, 4:5 (1916), 361-88; irl<'lll, "The Extralatcral Right: Shal l It Be Abol ished? JJ : The Origin and Development of the ExtraJ,,teri1 1 Ri ght in the United Sta tes," Califomin Law l~euil:ro, 4:6 (1916): 437-64; idem, "The Extra lnte ra l Right: Shal l It 13e Abolished? Ill: The Federal Mining Act of 1872," Cnlifomin Lnw Review, 5 (19'16), 18-36; and ide111, "The Extra lateral Right: Shall It Be Abolished? IV: Conclusion," Cnlifomin Lnw Review, 5 (1917), 303-30.

17Stephen Cresswell, Mormons and Cowboy~, Mcxmslliners nud Klnusmeu: Federnllmt• C:uforcemellf i11 fill' Sout/1 nud West, 1870-1893 (Tuscilloosa: University of Alabama Press, 1991), 97.

122 E RIC NY~ fROM

"MJbid., 97-132. Members or the Mormon community charged that Dickson ignored Gentiles committing the same offenses. "J\ccused of Partia li ty," Washington Po~t (H February 1885). "Genti le" is the Mormon ter m for non-Mormons.

:!'>()n the jars, sec Cresswell, Mormous nnrl Cowboys, 120; on the punch in the face, see "Assaulted by Mormons," New York Tinu:s (23 February 1886); and Frank j. Cannon and llarvcy ]. 0'1 Iigg ins, Limier tire Prop/ret in lllnh: The Nntionnl Ml'unce of n Politiml Pries/craft (Boston: The C. M. Clark Publishing <.:o., 1911), ch. 2. http:/ I www.gutcnberg.org/ctcxt/706o/, (accessed july 11, 2011).

~'In 1905, he built an omatc house in Salt Lake City's Capitol Hill neighborhood that still stands. Nelson Knight, "This Old House: Dickson-Gardner-Wolfe Mansion," Tire Capitol Hill N.:igl!borlroorl Corlllcii/Julletirr [Salt Lake City ], no. 49 (M«y 2005), 1-2. http:/ /www.capitolhil lcc. org/bulletin/2005/49_05-2005.pd f, (accessed July 13, 20n).

" These included Lawsou r>. U.S. Miuing Company, Mnmmollr Miniug Company v. Grand Central Mitring Company, Conkling Miuiug Compnuy v. Silver King Mi11i11:5 Company, Tlrompsonet nl. v. Keams el n/., Niagara Minilrg Compmry !1. Old Jordmr Miuiug Compnuy, nnd l:ureka //ill Mi11hrs Compnrry 11. 8111/iou, Beck nrrd Champion Mi11i11g Compmry (Lis t from "Grand Galaxy of Talent.")

.\.!Dickson left Salt Lake City in 1917 after the death of his wife, and lived in Los J\ngcles until his death, in "1924. Knight, "This Old House," 2.

~~"Montana-Tonopah Holds Meeting in Reno," Nevada State Jormrnl (2 July 1905); for more on the Montana-Tonopah, see Carpenter, Ellio tt, and Sawyer, History of FifhJ Year~ of Miuill!>(, 50-51, 6-l-65, 90-95 (which does not mention Dickson explicitly).

,.."On August I, 1901, the Cliffords conveyed by dL'Cd their right, title, and interest in the Wanderins Roy, as well ilS in the Lucky jim <1 nd Stone Cnbin, toW. I I. Dickson nnd A. C. Ellis, and on May 5, 1902, Dickson and Ell is conveyed the same to the complaina nt [the Tonopah <md Salt Lake Mining Co.J herein." Tonopah a111/ Snit Lakt' Mining Co. 11. Tonopah Minhr:s Co., 125 F. 400. The other two lawsuits of the gtoup had the same title <md were reported as 12'5 F. 389 and 125 f. 408 (1903). The Stone Cabin and Wandering Boy dnims were not part o f the dispute between the Butler and West End, as the conflict was limi ted to the Butler's Eurekn and Curtis claims nnd the West End's claim of the West End. For their ownership by the Butler Company, see Carpenter, Elliott, !lnd Sawyer, History of Fifty Years of Mining, 96.

J5"Judgc Dickson Dies on Canst," D~crl'f News (18 January 192tl); "Grand Galaxy of Tnlent." I would parliculilfly like to thank Nelson Knight of the Utah Division of His toric Preservation for the Dt•serct Nt'1us obituary and a photograph of Dickson. Both Ell ises appcnr frequently on reported court cases with Dickson. It is unclear whicl1 A. C. Ellis was involved with Dickson in the early Tonopah cl !l im~ . A. C. Ell is, Sr., died in 1912. J. r. O'Brien, cd., History of /Ire Beuclr oud Bnr of N<'tmda (San Francisco: Bench and Bar Publishing Compnny, 19l 3), 79-80.

-'•" J3rown, Hugh l l enl)~" in W/ro Was Who /11 Amcritn, vol. 1, 4th printing (Chicago: M;•rquis Who's Who, 1943), 149; O'Brien, llistory of Bendr nnd Bnr, 88; also sec tl1e memoir of Brown's wife, Mrs. I I ugh (Marjorie) Brown, Lady in Room town: Miners mrrl i\l!n111rers on/Ire Nevada Frontier (Palo Alto, C<1li f.: American West Publishing Co., 1968).

" Brown worked for Cnmpbell, Metson and Campbell, who appear as part of the legal team in Tonopah mrd Salt Lt1ke Minin:~ Co. 11. Tonopnlr Mining Co. of N<'Vflda, 125 F. 389 (1903).

380'13ricn, I Iis/ory tlf Bench mrd Bar, 96-97. 3"Harry [ lunt Atkinson, Tunopalr and Rl'llo Memories of a Nevada Allonrey, Barb<Jrn C.

Thornton, ed. (Reno: University of Nevada Oral History Project, 1970), 2 1-23,30-33,43. "'O'Brien, History of Benclr and Bnr, 95. 41"Cr,md Calaxy of Talent." "Jim Butler Tonopalr Minirrg Co. t•. West Eud Consolidat('(/ Case File, U.S. Sup reme Court

Appellate Case Files, 25458, Number 249, Rox 5000, Record Group 267, Nation;, I 1\rchives, Washington D.C., 513- 14 (cited hereafter as Jim Butler v. West End Transcript).

""Gr;md Gal!lxy of Talent." " "Political Notes: Margi n<1lin," Time, 27 J\ugust 193'L http: / /www. time.com/timc/

magazine/ <~ rti cle/0,9171,747759,00.htm l, (ncccssed 11 ju ly 2011). ';The 1imopalr Doily Bomwzn spelkd his name "Searles" throughout the trial, but the cnse

tmnscript s pells it correctly. For Sc;, rlcs's qunlifications, see Jim Butler v. West End Transcript, 856-5"7. Sec "Geology of the Tonopah Lodes Re la ted by Experts," "louopnlr Dnily 13orunrw ( 18

"Bri/l ianl Contingency of

December 1914), for Searls Rnmscy called a distinct fe H. Ramsey, Me11 and Mirres 45, 179. Searls was a top N several important extralatt in the Ncvnda City, Califo• Strategic Bombing Survey Nations J\lomic Energy C< foreign Policy and Lnterm History, 60:4 (1974}: 1032-1 California, where Lindley now preserved as a resear• nevadacountyhistory.org/

-Ill Andrew C. Lawson Report of lire State Eartlrqun Washington, 1908).

"'Fred Scnrls Jr., "The Francis E. Vaughan, cd. (C testified. In addition to th• in their fight against the L that Lawson testified in t.l-509 (1902); Utalr Consolidtt. Consolidnterl M. Co. v. l/taf Co. v. Aunco11rln Co., 20 F.2• E2d 811 (Poser); Stewart II Mining Co. v. Six/em to Or (Kingman, Ariz.), 209 Pac Mining Co. v. Sierm Nevarl Bullion Mi11es Co., 99 F.2d Home u. Champion Mi11ing given. For Lawson's worl v. West End Trnuscript, 272 Plrilosoplrer (Ciendalc, Cal "Andrew Cowper Lawso and Peggy Chnmplin, "L; (New York: Oxford Univ• Californii1 mining eng ine Ad it for him.

..sN. H. Winchell and Developmenl, Qualities, nne and Natural His tory Surv Printers, 1891). Sec this re 011 Mines." Winchell was< El izabeth Noble Shon~ "!­University Press, 1999), h "Grand Galaxy of Talent" Brigade, 1849·"1933 (1970; r

·•9Hc exnmined the g there; Spence Min inK £rrg

~"West End L1wyer t914); Jim Butler u. West E

s'"Gmnd Galaxy of 52Jim Butler v. Wesl "'Carpenter, Elliott, "'For Chandler's re'

is on p. 249.

E RIC NYSTROM

ickson ignon'd Gentiles :14 February 1885).

:h in the face, S€e < J. Cannon and Harvey l'rieslcraft (13oston: The C. 17066/, (accessed July 11,

eiehborhood that still ion," Tire CnJJitol Hill p: I I www.capi tolhillcc.

Company v. Gm11d Compn11y, Tlro11rpso11 et , and Eureka /Iii/ Mi11i11g d Calaxy of TalC'nl.") lived in Los Angeles

(2 July 1905); for more ''ifty Years ofMinillg, 50-

tie, and intcre~t in the ·ickson and A. C. Ell is, tinan t I the Tonopah and 1/r Mining Co., 125 F. 400. ·d as 125 F. 389 and 125 F. the dispute between the nd Curtis claims and the mpany, see Carpcntt>t;

:;rand Galaxy of Tal(•nL." : Historic Preservation appear frequently on Jo)vcd with Dickson in ':lis tory of the Br11ch all(( '79-80. nting (Chicago: Marquis memoir of Brown's rs Oil /he Nevndn Fro11 tier

as part of the legal team

'· 389 (1903).

q·rey, Barbara C. ~l-23, 30-33, 43.

3. Supreme Court \/a tiona) Archives, ·ipl).

time.com/ time/

the trial, but the case West Eud 1i·nm:cripl, ''Daily Bo11n11za (IS

"Brilliant Confinge11cy of Legal Tale111 a11d Mi11i11g Cxperts" 123

December 1914), for Searls's testimony, in which he used a complex geoloeical analogy, which Ramsey called a distinct feature of his testimony. r:or Searls's career with Newmont, sec Robert H. Ramsey, Men and Miues ofNewmout: A Tifty-Year llistory (New York: Octagon Books, 1973), 39-45, 179. Searls was a top Newmont executive between 1931 and 1966. Colby later tried and won several important cxtralateral-rights cases for Searls concerning Ncwmont's Empire Star mine in the Nevada City, California mining district. S<'arls served as a member of the United States Strategic Bombing Survey during World War II and of Bernard Baruch's delegation to the United Nations Atomic Energy Commission. Barton). Bernstein, "The Quest for Security: American Foreign Policy and International Control of Atomic Energy, 1942-1946," journal of American HiBtory, 60:4 (1974): 1032-1034. The Searls' lawyers practiced almost exclusively in Nevada City, California, where Lindley was also extensively involved. The Searls house and law library is now preserved as a rcs(~arch library as part of the stat<~ pill'k system of California; sec http: / I ncvadacountyhistory.org /html I searls_library.htm l, (accessed january 24, 2013).

'6Andrew C. Lawson and Hnrry Fielding Reid, 'flu? Cnlifimrin Eartlrquakc of Apri/18, 1906:

/{eport of the Slale Earthq11nke luvestiga tio11 Commission (Washington, D.C.: Cnrncgic Institution of Washing ton, 1908).

47Fred Searls Jr .• "The Consultant," in lwrlrew C. Lawson: Scientist, 7/?achel~ Plrilosopher, Fr<mds E. Vaughan, ed. (Clcndale, Cali f.:/\. H. Clilrk, 1970), 205-11, lis ts cases for which Lawson tes tified. In addition to the jim Butler case and L<twson's work with the Bunker Hill and Sullivan in their fight against the Las t Chance in 1909 (compromised without a lawsuit), Searls notes that Lawson testified in the following: Peullsylvmrin Co. v. Crass Valley Co. (W.Y.O.D. case), 117 F. 509 (1902); Utnlr Collsolidated M. Co. v. Apex Miuill$: Co., 277 F. 41; ccrt. denied 258 U.S. 619; Utah Cousolidated M. Co. v. Utah Apex Co., 285 F. 249; Cl!rt. denied 261 U.S. 615 (1921); Clark Montnnn Co. v. A11acouda Co., 20 r:.2d 1008, compromised; Moullo11 Mi11ii1JI Co. v. A11aconda Miuing Co., 23 F.2d 811 (Poser); Stewart Miuing Co. v. Outario M. Co., 132 Pac. 787; 237 U.S. 350; Twenty-One Miniug Co. v. Sixteen to 011e Miuing Co., 260 F. 724; 265 F. 469; Tom Reed v. Uuited Eastern M. Co. (Kingman, Ariz.), 209 Pac. 283; cert. denied 260 U.S. 744; Stewart Miuiug Co. v. Boume and Stewart Mining Co. v. Sierra Nl?lHldn Mining Co. (consolidated). 218 F. 327; Empire Star Co. v. Grass Valley Bullion Mines Co., 99 F.2d 228; United Stales v. Uuiled Stnles Borax Co., 58 Land Decisions 426; Home v. Cllnmpiou Miuiug Co., settled, not reported; $/J(ls/n Iron Co. u. United States, citation not given. For Lawson's work for the MacNamara with Lindley against the West End, sec Jim Butler v. West End 1rnn.script, 273. See also Francis E. Vaughan, Andrew C. Lawson: Scieutist, Tendter, Philosopher (Glendale, Calif.: A.H. Clark, 1970); Perry Byerly and Ceorge Davis Louderback, "Andrew Cowper Lawson," Nnliounl Academy of Sricni'I'S Biogmpllicnl Memoirs. 37 (1964), 185-204; and Peggy Champlin, "Lawson, Andrew Cowper," in Amcricnu Nntioual Biogra[Jiry, vol. 13 (New York: Oxford University Press, 1999), 294- 96. The practice tunnel in which University of California mining engineering students refined their craft, built in 1930, was named the Lawson Adit for him.

' 8N. H. Winchell and H. V. Winchell, Tl1e Jro11 Orcs of Milmesotn: Their GeoloKJJ, Discovery, Development. Qualities, and Origi11, and Comparisouwi/11 ThoSl' of Other lro11 Districts, Geological and Natural H istory Survey of Minncsotn Bulletin 6 (Minneapolis: Harrison and Smith, State Printers, 1891). See this reference also for Winchell 's glowing review of the third edition of "Lindlry 011 Mi11es." Winchell was also president oi the American Institute oi Mining Engineers in 1919. El izabeth Noble Shorr, "Horace Vaughn \Ninchell," Americn11 NatiOIIlll Biography (New York: Oxford University Press, 1999), http:/ /www.anb.org/arliclcs/J31 J3-0J 835.htrnl, (accessed July 11, 2011); "Grand Galaxy of Talent"; Clark C. Spence, Mini11g l:llgi11eers and the Americ1111 West: Tlte Lace-Hoof Brigade, 1849-1933 (1970; reprint, Moscow, Idaho: Universi ty of Idaho Press, !993), 228-29.

' 9 He examined the gold mines in northern Korea, for example, leading to western investment there; Spence Miuing Engim:ers, 285.

"'"West End Lawyers in Apex Litigation Begin to Come," 'fimopnh Daily Bounuzn (1 December 1914);/im Butler u. West E11dTmnscript, 174-76.

~'"Grand Galaxy of Talent." 52Jim Butler v. West End Tmuscript, 213-14. 5.JCarpenter, EUiott, and Sawyer, llistory of Fifty Years of Miuiug, 66-68. "'For Chandler's reversal, see Jim Butler v. \Nest End Trnuscript, 235-310; Lindley's quotation

is on p. 249.

124 EKIC NY!.TKOM

55Chandler was apparently an excellent manager, but he died young, in late 1915. Carpenter, Elliott, and Sawyer, History of Fifty Years of Mining, 101, 104.

!o6"Butler Geologist Presents Vivid Crayon Sketch." " Spence, Millillf'l LllJZ.ill<'l.'rs, 215-16. 58Cnrson City Gold nlld Silver Minillg Co. u. North Star Minillg Co., 73 F. 597 (1896). Judge

Beatty d«.:cidcd for Lind ley and the North Star in the District Court. Dickson, along with both A. C. Ell is, Sr. and A. C. Ell is, Jr., lost in the Ninth Circuit Court of Appeals as well, in Carsoll City Gold nml Silver Millillg Co. v. North Stnr Millillg Co., 83 F. 658 (1897).

59This wns the series of cases between the Silver King Coalition Mines Company, represented by Dickson, Ell is, and Lind ley (with others), and the Conkling Mining Com pony. Lindley seems to hnve been brought into the case for the appeals, as he docs not appear in the distr ict court reco rd. Co11klillg Milling Co. v. Silver King Coalition Mines Co., 230 P. 553 (1916), was the initial case (with Dickson and Ell is, but w ithout Lindley). Lindley was lis ted on the following: Silver Kiug Coalitioll Mines Co. v. Conkling Mining Co., 242 U.S. 629, 37 S. Ct. 14 (Mcm) (1916); Silver Killg Con/itioll Mill~S Co. v. Conkling Miuing Co., 250 U.S. 655, 40 S. Ct. 13 (Mem) (1919); Silver KillfZ. Con/ilion Mi11es Co. v. Co11kli11{? l'vlining Co., 255 U.S. 151, 41 S. Ct. 310 (1921).

60"Geology of the Tonopah Lode." • 1"Bar Association of Nyc Co. G ives Banquet to Distinguished Brethren," Tonopah Daily

Bonanza (22 December 1914). 62"Jim Butler-West End Trial Concluded with Dispatch; "Bar Association of Nyc Co. Gives

Banquet." .. 'Sewell Thomas, Silhouettes ofClmrles S. Thomas: Colorado Govemor and United 5tat£'S Senator

(Caldwell, Idaho: The Caxton Printers, Ltd., 1959), 82-83,88. 61Colby, Reminiscences, 114-17. His students included Earl Warren as well as the future

National Park Service directors Horace Albright and Newton Drury. •sRobert M. Searls (along with Colby and Grant H. Smith) is thanked by Lindley for helping

with the work and being part of the s taff. Lindley, "Lindley on Mines" (1914), iv. l>fColby, RemilliSCI'IICI'S, 81. 67Qn Wingfield, sec C. Elizabeth Raymond, George Wiugfield: Ow11er a11d Operator o[Nevadn

(Reno: University of Nevada Press, 1992); on Oddie, see Loren Chan, Sagebrush Sta feSII/all: Tasker L. Oddie of Nevndn (Reno: University of Nevada Press, 1973); on Brown, sec Brown, Lndy i11 Boomtow11; for Brown as part of the Wingfield machine, see Sally Springmeyer Zilnjani, The U11spiked Rail: Memoir of a Nevada Rebel (Reno: University of Nevada Press, 1981), 161-75.

60Ramsey, Mw a11d Mines of Ncwmont, 89. Lindley fe ll gravely ill during the trin l nnd d ied« f<.) w dayll la te r; sec Colby, l~eminisccuces, 86-/\8.

69'fhc snmc c<lsc nnmc is reported twice, s ince the lawyers fi led for both a writ of certiorMi and an appenl. Lindley was dead by the time the case was decided in Lhe United States Supreme Court, but his nnmc was npparently included on the brief. Li ndley <md Dickson appc<~ r together in the reported decision in 255 U.S. '151; the Jim flu tie r-West End case is ci ted in 256 U.S. 18.

"'0' Brien, /-lis lory of Be11ch n11d Bar, 84. 7'Jim Butler v. West End Trn11script, b, h. 1'2'fhe light g reen color of the andesite cap was complemented by the dark green color of the

other cap rock, described as Brougher dacite. Black o r dnrk brown depicted rhyolite, blue s tripes indicated faults, and gray, the color of the primer used on the model, did not depict any geology. Numbers and letters were painted on in black, and the whole structure was suspended above a claim map in black ink on light-colored paper. Jim Butler v. West End Trnuscripl, 11-13.

73J. E. Spurr was the first geologist to report on Tonopah, and his geological nomenclature tended to be used by the Tonopah miners. For the most complete statement of his early work, sec J. E. Spurr, "Geology of the Tonopah Mining District, Nevada," U.S. Geological Survey Professional Po~ per 42 (Washington, D.C.: Government Printing Office, 1905). J. A. Burgess look issue with Spurr's interpretation, termed the rocks differently, and hypothesized geological origins different from those asserted by Spurr. See J. A. Burgess, "The Geology of the Producing Part of the Tonopnh Mining Dist rict," Ecouomic Geology, 4 (1909), 681- 712. Pcrhnps <~Sa response to Burgess or due to furthe r development in the mines, Spurr modified some of his earlier findings, including changing some of the terms for the rocks, in J. E. Spurr, "Geology and Ore Deposits at Tonopah, Nev.," £co11omic Geology, 10 (1915), 751-60. Augustus Locke, "The Geology

"Brilliant Co11li11gency OJ

of the Tonopah Mining Di (1912), 157-66, summari:~.t

Edson S. Bastin and Franc Geological Survey Profcs~ largely tried to avoid the i Nolan, "The Undergroun• Nev<1da Bulletin 29, no. 5 headed the USGS.

" Lindley squce;.cd tl End Transcript, 206. The p "abrupt change" on then·

75Jim Butler v. \'Vest E '"Interestingly, Averi l

one in his role as counsel Lind ley would have u ndc judge had his opinion bee up in the transcripts of th• evaded the possibility of •

77Jim Butler v. West E the diagr<~m, in "West Ent

7839 Nev. 375 (1916), J Nf or examples of thi

Tonopah, Purchase 1-200~ University of Nevada, La:

rocarpentc r, Elliott, a SlJbid., 106-14. 823 B.T.A. 128, 130; C S.'Qtis E. Young Jr., W

Placeri11g, Lode Mi11i11g, 1111<

Univers ity of Oklahoma 1 ~HOn stopping rumor

Eastern Brokers," Touopnh example, "West End Offic

8SSce Raymond, "L<n Appendix," Transactions~

1'4This eventually h<~p industria l minerals such a after 1920. Non-metall ic rr n different system in J 947 Mining Law: redcra l Legi Mining L<~w since 1955," I extralatera l rights for met;

o7"The Ending of a tv "'The Waugh Kid, "V 89"Muse Inspires No

ERIC NYSTROM

g, in l<1tc 1915. Carpt.>ntcr,

F. 597 (1896). Judge kson, <1long with both A. : ns well, in Carso11 City

nes Company, ing Mining Company. clocs not appear in the

:o., 230 F. 553 (1916), Icy was listed on the ;. 629, 37 5. Ct. 14 (Mcm) ·5, 40 S. Ct. 13 (Mem) •1, 41 S. Ct. 310 (1921).

thrcn," Timopn/1 Daily

:iation of Nyc Co. Gives

· a11d United Stairs Srnalor

JS well as the future

:cd by Lindley fo r helping (1914), iv.

•r and Ojlemtor of NeiJ{lda :agebruslr Statesmmr: 3rown, see Brown, Lady ·ingmeyer Zanj;mi, TIH: "('SS, J 981 ), 161-75. uring the trial and died a

r both a writ of certiorari the Uniled States Supreme :1 Dickson appear together s cited in 256 U.S. 18.

the dark green color of the >icted rhyolite, blue stripes :lid not depict any geology. -c w;~s suspended above a Tra11Script, 11-13. geological nomenclature !mcnt of his early work, S. Geological Survey , 1905). j. A. Burgess took pothesizcd geological Geology of the Producing 7 J 2. Perhaps as n response d some of his earlier ;purr, "Geology and Ore .1 s tus Locke, "The Geology

"13rillirmt Conlingency of Legai 'Jident anrl Mining r:xperls" 125

of the Tonopah Mining District," Tmnsnctimrs of lire A11wricmr Institute of Mi11ing Engim~ers, 43 (1912), 157- 66, summarized the dispute <md tended to side with the intccpretations of Burgess. F.dson S. Bastin and Francis 13. Laney, "The Genesis of the Ores a t Tonop<lh, Nevada," U.S. Geological Survey Professional Paper 104 (Washing ton, D.C.: Government Printing Offirc, 1918), largely tried to avoid the is.o;ue by basing their findings more on chemical analysis. Thomas B. Nolim, "The Underground Geology of the Tonopah Mining District, Nevada," University of Nevada 13ullctin 29, no. 5 (1935), l-49, is con~i dercd the last word on the ~ubjcct. Nolan later headed the USGS.

" Lindley squeezed th is point out oi Juesscn in cross-examination. In jim Butler v. West End Transcri!Jt, 206. The point is further elaborated on pp. 207-209, where Lindley went alter the "abrupt change" on the model.

~Jin1 Butk~r v. West End 'frmrscripl, 15-16. 7"1ntcrcst ingly, Averill would have had to have defended the idea of the vein as a single

one in his role as counsel for the MacNam(•ra in its apex figh ts from 1904 to 1908, a fact of which Lindley would have undoubtedly been aware, and which might have cau~ed discomfort for the judge had his opinion been reversed, as had Chandler's. The issue docs not seem to hilve come up in the transcripts of the trial, however, and Averill 's decis ion in the Butler-West End case evaded the possibil ity of contradicting his earlier work.

n jim Butler v. West End Trmrscripl, 1137-1158. The opinion was <1lso printed in full, without tlw diagram, in "West End Wins Decision in Apex Case," Tonopah Daily 8o11auw (30 April1915).

7639 Nev. 375 (1916), 158 Pac. 876, 1 A.L.R. 405; 247 U.S. 450 (1918); 38 S. Ct. 574; 62 L. Ed. 1207. 79For examples of this accounting, sec fo lder "West End Consolidated Mining Co.­

"lonopah, Purchilse 1-2003," West End Consolidated, Mining Collections, Lied Library, University of Nevada, Las Vegas, Special Collections.

$'Carpenter, Elliott, and Sawyer, History of rijh; Years of Miniug, 98, 138. 80 /bid., HJ6-14. 823 13.T.A. 128, 130; Carpenter, Elliott, and Sawye1~ Histon1 of rifty Years of Miuiug, 102. s:JOtis E. Young Jr., West em Mini11g: Au luformn/ Arcouuf of Precious-Metals Prosperti11g,

Placeriug, Lode Miuiug, nnd Milliug on tire Americnu Fro11fier from Spnuislr Times to 1893 (Norman: University of Oklahoma Press, 1970), 227-30; Spence, Mi11ing [ugiueers, 196-97.

"'On stopping rumors, see, for example, "Malicious Reports of Apex Suit Circulated by F.nstcrn Broker~," Tonopnfr Dnify lJonnm;n (1 7 july 1914); on playing down controversy, sec, for example, "West End Officers in Conference in New York," Tonopalr Daily 13onauza (3 April1 91 4).

s.'Scc Raymond, "Law of the Apex"; and Rossiter W. Raymond, "The Law of the Apex­Appendix," Tmusnctio11s of lire llmrrican 111slitute of Miuing I::ngiueers, 12 (1884), 677 88.

""This eventually happened with coal, eas, oi l, and a handful of other commercially valuable industrial minerals such as phosphate, which were leased for royalties when found on public lands after 1920. Non-metallic minerals, such as gravel, sand, and building stone, were a lso converted to a different system in J 947 and 1955. William R. Marsh and Don H. Sherwood, "Metamorphosis in Mining Law: Federal Legislative and Regulatory Amendment and Supplementation of the General Mining Law since 1955," Rocky Mowrtahr Milrcral Law Fedt~mtion, 26 (1980), 211-20. Howt>ver, extra lateral rights for metal mining daims exist in the l<lw to this day.

67'The Ending of a Momentous Case," Touopah Daily Bonnuw (30 April1915). "5Thc Waugh Kid, "What Is a Halo and Why," ToiiOjlllil Daily Bonauzn (17 May 1915). ll""Muse Jn~pires Noted jurist."