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Full text of "United States Court of Appeals For the Ninth Circuit"

Form No. 7 



B&P««»»SCO 



Sart Francisco 

Law Library 

rso. 



Presented by 



EXTRACT FROM BY-LAWS, 

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defaced or injured. A party violating .his i rovision, 
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with to the satisfaction of such Trustees or Executive 
Committee. 






No. 1305 / 



UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE NINTH CIRCUIT. 



THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a 
Corporation), / 

Appellant, ( ^ ^ ^ 

VS. 

ALFRED A. FRASER and A. R. 
CRUSEN, 

Appellees, 



TRANSCRIPT OF RECORD. 



Upon Appeal from the United States Circuit 

Court for the District of Idaho, 

Central Division. 



Tm Pilmik Bkm. Co. Pjuit, «4 KiwmH, I. V. 



No. 1305 



UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE NINTH CIRCUIT. 



THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a 
Corporation). 

Appellant, 



vs, 



ALFRED A. ERASER and A. R. 
CRUSEN, 

Appellees, j 



TRANSCRIPT OF RECORD. 



Upon Appeal from the United States Circuit 

Court for the District of Idaho, 

Central Division. 



Tib Filkhr Bum. Co. Pbiht, 414 Savsomb St., S. F. 



INDEX 



Page 

Affidavit of Douglas W. Ross 39 

Affidavit of A. J. Wiley 36 

Amended Answer 61 

Amended Answer, Order for Leave to File ........ 61 

Answer 43 

Answer, Amended 61 

Answer, Amended, Order for Leave to File 61 

Assignment of Errors 214 

Bill of Complaint I 

Bond on Appeal 220 

Certificate, Clerk's, to Transcript 225 

Citation 223 

Clerk's Certificate to Transcript . 225 

Complaint, Bill of 1 

Complainant's Exhibit "C" (Miap Showing Details 

of Construction of Swan Falls Power Plant) . . 227 
Complainant's Exhibit "D" (Certified Copy of No- 
tice of Water Bight Location and Dam-site, by 

Joseph H. Hutchinson at Swan Falls, Idaho). . 143 
Complainant's Exhibit "E" (Certified Copy of No- 
tice of Water Right Location, by Joseph H. 

Hutchinson at Swan Falls, Idaho) 148 



ii Index. 

Page 
Complainant's Exhibit "F" (Certified Copy of Deed 

Dated June 23, 1900, Swan Falls, Idaho, from 
Joseph H. Hutchinson to The Trade Dollar Con- 
solidated Mining Company) 151 

Complainant's Exhibit "G" (Copy of Articles of In- 
corporation of The Trade Dollar Mining and 

Milling Company) 155 

Decision 203 

Decree, Final 211 

Depositions, Stipulation as to Taking: 182 

Depositions on Behalf of Complainant: 

James Bryan 198 

Thomas Taylor Johnston 184 

Thomas B. McKaig 192 

Exhibit "A" (Application for Permit, No. 1287, to 
Appropriate the Public Waters of the State of 
Idaho, Signed by Alfred A. Frazer, A. R. Cru- 
zen and F. B. Whitin) 19 

Exhibit "B" (Application for Permit, No. 1288, to 
Appropriate the Public Waters of the State of 
Idaho, Signed by Alfred A. Frazer, A. K, Cruzen 
and F. B. Whitin) 27 

Exhibit "C," Complainant's (Map Showing; Details 

of Construction of Swan Falls Power Plant) . . 227 



Index. iii 

Page 
Exhibit "D," Complainant's (Certified Copy of No- 
tice of Water Right Location and Dam-site, by 
Joseph H. Hutchinson at Swan Falls, Idaho) . . 143 
Exhibit "E," Complainant's (Certified Copy of No- 
tice of Water Eight Location, by Joseph H. 
Hutchinson at Swan Falls, Idaho) 148 

Exhibit "F," Complainant's (Certified Copy of Deed 
Dated June 23, 1900, Swan Falls, Idaho, from 
Joseph H. Hutchinson to The Trade Dollar Con- 
solidated Mining Company) 151 

Exhibit "G," Complainant's (Copy of Articles of In- 
corporation of The Trade Dollar Mining and 

Milling Company) 155 

Exhibits, Original, Order as to Transmission of .... 219 

Final Decree 211 

Injunction, Order Eefusing 58 

Order Allowing Appeal 218 

Order for Leave to File Amended Answer 61 

Order Refusing Injunction 58 

Order to Show Cause Why Injunction Should not 

Issue 42 

Order as to Transmission of Original Exhibits .... 219 
Petition for Appeal 213 



iv Index. 

Page 

Replication 57 

Report of Special Examiner .. . 142 

Stipulation as to Taking Depositions 182 

Stipulation as to Taking Testimony 59 

Subpoena ad Respondendum 33 

Testimony, Stipulation as to Taking 59 

Testimony on Behalf of Complainant : 

R. H. Britt 114 

Frank C. Horn 128 

Frank O. Horn (cross-examination) 133 

Frederic Irwin 101 

Frederic Irwin (cross-examination) 112 

D. W. Ross 118 

Andrew J. Wiley 77 

Andrew J. Wiley (cross-examination) 93 



In the Circuit Court of the United States, in and for the 
Central Division of the District of Idaho. 

IN EQUITY. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 
vs. 

ALFRED A. FRASER and A. R. 
CRUSEN, 

Defendants. 

Bill of Complaint. 
To the Judge of the Circuit Court of the United States 
for the District of Idaho. 

The Trade Dollar Consolidated Mining Company, a 
corporation organized and existing under the laws of 
the State of Kentucky, and a citizen of said State, com- 
plainant in this suit, brings this its bill against Alfred 
A. Fraser and A. R, Crusen, of Boise City, Idaho, each 
of whom is a citizen of the State of Idaho and an in- 
habitant of the said District of Idaho. 

And thereupon your orator complains and says that 
it is a corporation organized and existing under the 
laws of the State of Kentucky, and is engaged in the 



2 The Trade Dollar Consolidated Min. Co. 

business of mining and milling ores in Owyhee County, 
Idaho, and the generating of electrical power for the 
purposes of operating its mills and mining machinery, 
and is also engaged in the business of selling to the 
general public electrical power for mining transporta- 
tion, irrigation, lighting and various commercial uses. 
That on the 17th day of January, 1900, Joseph H. 
Hutchinson, of Silver City, in said county of Owyhee, by 
his notice of location of water right and dam-site duly 
appropriated and claimed the right to use ten thousand 
cubic feet per second of the waters of Snake river, 
Idaho, to be diverted from said river at or near a point 
about ten miles up said river from the town of Guffey 
in said county of Owyhee, which point was stated in said 
notice to be more particularly described and identified 
by a large lava rock island near the center of said river 
at what is known as Swan Falls. The use of said water 
was claimed in said notice for the purposes of power 
for motive, manufacturing, mechanical, electric light, 
electric power and other useful and beneficial purposes 
and for irrigation by means of pumping and otherwise, 
and that said water was to be diverted by means of 
a dam or two canals or conduits, and that the said dam 
was to be constructed across said river at the point 
known as Swan Falls, and the location of the dam-site 
was described therein as follows: On the Owyhee County 
side, by what is known as the Hardie Placer claim, on 
the Ada County side, by what is known as the Island 
Placer claim, and the island in said river known as the 
Rubberneck Placer claim. That said notice further 



vs. Alfred A. Fraser and A. E. Cruscn. 3 

stated that the water flowing at said point was to be 
used for power for motive, manufacturing, mechanical 
electric light, electric power and for pumping water for 
irrigation purposes in the counties of Ada, Canyon, 
Owyhee, Elmore, Lincoln and Cassia, and other places 
in Idaho. That the original notice of location of water 
right and dam-site was duly posted in a conspicuous 
place at or near the said point of intended diversion at 
Swan Falls, on said 17th day of January, 1900, and a 
copy thereof was duly recorded in Book 3 of Water 
Rights, Mill-sites and Tunnel-sites, at pages 750 and 
751 of the records of said county of Owyhee, and a copy 
of said notice was duly filed in the office of the State 
Engineer of Idaho, on the 4th day of February, 1900. 

That on the 4th day of May, 1900, the said Joseph 
H. Hutchinson posted at or near said point of diversion 
an amended or supplemental notice, claiming and ap- 
propriating said ten thousand cubic feet per second of 
said waters of Snake river, for said purposes, and that 
the said water was to be diverted by means of a dam, 
and that the places of intended use thereof were par- 
ticularly the mines near Silver City, Idaho, and also for 
motive, manufacturing, mechanical, electric light, elec- 
tric power, and for pumping water for irrigation in the 
counties of Ada, Canyon, Owyhee, Lincoln, Cassia and 
other places in Idaho and Oregon; and that nothing in 
said notice was intended or was to be construed as waiv- 
ing any rights claimed by said notice of January 17th, 
1900. That a copy of said notice was duly filed for rec- 
ord in the office of the recorder of said county of Owyhee 



4 The Trade Dollar Consolidated Min. Go. 

on the 19th day of May, 1900, and duly recorded in Book 
3 of Water Eights, Mill-sites and Tunnel-sites at pages 
761 and 762 of the records of said county, and a copy 
thereof was duly filed in the office of the State Engineer 
of Idaho, on the 20th day of May, 1900. 

That thereafter and on the 23d day of June, 1900, the 
said Joseph H. Hutchinson, sold and by his deed dated 
on said day conveyed to your orator all of his right, 
title, interest, equity and property of every nature and 
kind in and to said water right and the right to divert 
and appropriate said water and the franchises and 
privileges thereunto belonging, together with the 
ditches, canals, flumes, dams and conduits acquired un- 
der and by virtue of said notices and appropriations, 
which said deed was duly filed for record on said twenty- 
third day of June, 1900, and duly recorded in Book 7 
of Deeds, pages 577-579 of the records of said county of 
Owyhee. 

That thereafter, and during the month of July, 1900, 
after the approval of its plans by the state engineer as 
required by law, your orator commenced the construc- 
tion of a dam at said point of diversion known as Swan 
Falls, for the purposes of diverting the said ten thou- 
sand cubic feet per second of the waters of said river, 
and placing the same to the beneficial uses for which 
the same were appropriated as aforesaid, and has been 
continuously engaged since that time in prosecuting its 
work and in making valuable improvements for the 
purposes aforesaid, and has already expended thereon 
over three hundred and fifty thousand dollars. 



vs. Alfred A. Fraser and A. R. Crnsen. 5 

And your orator further shows that the improvements 
thus far constructed consist of a rock crib filled dam 
about five hundred feet in length, extending from the 
Owyhee side of Snake river at Swan Falls to the lava 
island in said river, for the purpose of raising the water 
and providing an effective head of nineteen feet, and 
also a concrete masonry power-house and dam, extend- 
ing from the Ada County side of the river to the lava 
island, about four hundred and fifty feet in length. 
That your orator at great expense constructed the said 
concrete dam and power-house throughout its entire 
length, with masonry walls, at suitable distances from 
each other, for the purpose of utilizing the space be- 
tween each of these walls for wheel-bays, when the 
works of your orator are completed, according to the 
original plans. That up to the present time your ora- 
tor has completed ready for use six of the proposed 
wheel-bays, and has already installed and is operating 
in four of them water wheels for generating electrical 
power, of a capacity of three thousand six hundred 
horse power, and utilizing and requiring two thousand 
one hundred and fifty cubic feet per second of said 
water, and has installed and is now using in said power- 
house generators of electric power operated by said 
wheels. Your orator has also constructed a transmis- 
sion line thirty miles in length, by which said power 
is conducted to and used for the operation of your ora- 
tor's mines and mills in said county of Owyhee, and the 
said power is being sold by your orator to the owners of 
other mining properties, and has been conducted to the 



6 The Trade Dollar Consolidated Mm. Co. 

towns of Silver City, Dewey and Murphy in said county, 
where it is sold to the inhabitants for lighting purposes. 

And your orator further shows that its mining prop- 
erties in said county of Owyhee are very extensive and 
of great value, and that in their operation your orator 
provides steady employment to over two hundred and 
fifty employees. That it is impossible to operate said 
properties at a profit, except by the use of the said elec- 
trical power, by reason of the scarcity and high price of 
fuel in the vicinity thereof, and that the transmission 
of said power to said properties and to said towns in 
said county is a source of great value and profit to your 
orator and is a great public benefit, as mining is the 
principal industry of said county and a very large pro- 
portion of its inhabitants are entirely dependent upon 
the operation of said mines for a livelihood and support. 

And your orator further shows that the proposed com- 
pletion of its original plans for the said power plant is 
of great value to your orator and to the general public, 
and that ever since the acquisition of said water rights 
as aforesaid your orator has been diligently engaged 
in the employment of competent engineers, at great ex- 
pense, to make investigations and to prepare plans, spec- 
ifications and estimates for the purpose of transmitting 
and selling the additional electrical power which will 
be generated when its power plant is completed and all 
of its appropriated waters utilized, to various cities and 
towns and the inhabitants thereof in the counties of 
Ada, Canyon, Elmore and Washington in the State of 
Idaho, and also in the county of Malheur in the State of 



vs. Alfred A. Fraser and A. R. Crusen. 7 

Oregon, and for the further purpose of using said elec- 
trical power to pump water for the irrigation of large 
tracts of land in said counties. 

And your orator further shows unto your Honors 
that it has been and now is proceeding with due dili- 
gence to carry out and complete its original plans, and 
that when the same are consummated your orator will 
require the free and uninterrupted use of the entire 
ten thousand cubic feet per second of water owned by 
your orator as aforesaid, or of so much thereof as may 
be flowing in said river at its power plant. 

And your orator further shows that heretofore at the 
low-water stage of said river, from August to November 
of each year, the quantity of water flowing therein at 
Swan Falls is according to actual measurement, about 
six thousand five hundred cubic feet per second. That 
extensive irrigation works at a point on said river above 
Swan Falls, and known as Twin Falls, will be completed 
during the year 1905, and when completed will take 
from said river by means of a canal at said point about 
three thousand four hundred cubic feet per second of 
the waters thereof, and that very little, if any, of said 
waters will be returned to the river, and that after the 
diversion of said quantity of water, the amount of water 
available to your orator at Swan Falls, at the low-water 
stage, including all water flowing into said river from 
all other sources between Twin Falls and Swan Fails 
will be about four thousand five hundred cubic feet per 
second. 



8 The Trade Dollar Consolidated Min. Co. 

And your orator further shows that it is the owner 
by purchase and actual appropriation and diversion for 
useful and beneficial purposes as aforesaid, of all of 
the waters flowing in said river at the low- water stage 
thereof, and of the entire ten thousand cubic feet per 
second of said waters whenever this quantity is flowing 
in said river at its power plant, and is entitled to the 
full, free and uninterrupted use thereof, and is also 
entitled to the full, free and uninterrupted use of the 
said head of water created by its dam as aforesaid, and 
such use is necessary for the enjoyment and operation 
by your orator of its said power plant and mining prop- 
erties. 

And your orator further shows that on the second 
day of November, 1904, the said defendant and F. B. 
Whitin filed in the office of the State Engineer of Idaho, 
an application for a permit to appropriate two thou- 
sand cubic feet per second of the waters of Snake river 
for power purposes, to be diverted from said river at a 
point on the west bank thereof in said Owyhee County 
about five hundred feet above the west end of the dam 
of your orator's power plant, and to be conducted to the 
point of intended use on the same bank of said river 
about five hundred feet below the said west end of your 
orator's dam, by means of a ditch or canal sixty-five feet 
in width at the bottom, eighty-one feet in width at the 
water line, and with a depth of water of eight feet. 
That thereafter and on the eighth day of November, 
1904, the said F. B. Whitin, by an instrument in writ- 
ing embraced in said application, sold, transferred and 



vs. Alfred A. Fraser and A. R. Crusen. 9 

assigned to said defendant, Alfred A. Fraser, all of his 
right, title and iterest in and to said application or per- 
mit and the franchises connected therewith. That 
thereafter the said State Engineer returned said appli- 
cations to said defendants for the purposes of correc- 
tion and requiring a more definite and certain place of 
diversion and use of said waters and a survey of the 
proposed ditch or canal to be used in connection there- 
with. That on or about the twenty-ninth day of No- 
vember, 1904, the said corrected application was re- 
turned by the defendants to the office of the State En- 
gineer, and was accompanied by a plan and map of the 
proposed works for the diversion of said two thousand 
cubic feet per second of said waters, and on the last- 
named date the State Engineer approved said applica- 
tion and granted to said defendants a permit to appro- 
priate said waters and construct said works, subject to 
the limitation and conditions that one-fifth of the work 
therein specified should be completed on or before May 
29, 1907, that the whole of said work be completed on 
or before November 29, 1909, and that the time for the 
proof of beneficial use of water appropriated in accord- 
ance with said permit, extend to November 29, 1913. 
That said permit was recorded in Book 4 at page 968 
of the records of said State Engineer's office, and a cer- 
tified copy thereof and of the maps or plans accompany- 
ing the same is attached to this bill of complaint and 
is hereby referred to and made a part hereof and marked 
Exhibit "A." ! 



10 The Trade Dollar Consolidated Mm. Co. 

And your orator further shows that on said second 
day of November, 1904, the said defendants and the 
said F. B. Whitin filed in the office of the said State 
Engineer, an application for a permit to appropriate 
two thousand cubic feet per second of the waters of 
Snake river for power purposes to be diverted from 
said river at a point on the east bank thereof in said 
Ada County about four hundred feet above the east 
end of the dam of your orator's power plant, and to be 
conducted to the point of intended use on the same bank 
of said river about five hundred feet below the said 
east end of your orator's dam, by means of a ditch or 
canal sixty-five feet in width at the bottom, eighty-one 
feet in width at the w T ater line and with a depth of 
water of eight feet. That thereafter and on the eighth 
day of November, 1904, the said F. B. Whitin, by an in- 
strument in writing embraced in said application, sold, 
transferred and assigned to said defendant, Alfred A. 
Fraser, all of his right, title and interest in and to said 
application or permit, and the franchises connected 
therewith. That thereafter the said State Engineer re- 
turned said application to said defendants for the pur- 
poses of correction and requiring a more definite and 
certain place of diversion and use of said waters and 
a survey of the proposed ditch or canal to be used in 
connection therewith. That on or about the 29th day 
of November, 1904, the said corrected application was 
returned by the defendants to the office of the State En- 
gineer and was accompanied by a plant and map of the 
proposed works for the diversion of said two thousand 



vs. Alfred A. Fraser and A. R. Cruxcn. 11 

cubic feet per second of said waters, and on the last- 
named date the State Engineer approved said applica- 
tion and granted to said defendant a permit to appro- 
priate said waters and construct said works subject to 
the limitations and conditions that one-fifth of the work 
therein specified should be completed on or before May 
29, 1907, that the whole of said work be completed on or 
before November 29, 1909, and that the time for the 
proof of beneficial use of water appropriated in accord- 
ance with said permit, extend to November 29, 1913. 
That said permit was recorded in Book 4 at page 969 of 
the records of said State Engineer's office, and a certi- 
fied copy thereof and of the maps or plans accompanying 
the same is attached to this bill of complaint and is 
hereby referred to and made a part hereof and marked 
Exhibit "B." 

And your orator further says that in accordance with 
said permits, the said defendants threaten and propose 
to commence the construction of said ditches or canals 
as indicated on said maps or plans, and of the dimen- 
sions specified in said permits, for the purpose of divert- 
ing the two thousand cubic feet of water per second 
around each end of your orator's dam. 

That the proposed canal of defendants on the Owyhee 
County side of said river is to be eleven hundred feet in 
length and to approach within thirty-five feet of the 
west end of said dam, and the proposed canal on the 
Ada County side is to be eight hundred feet in length 
and to approach within one hundred feet of the east 
end of said dam, and the land through and across which 



12 The Trade Dollar Consolidated Mm. Co. 

it is proposed to construct said canals is owned and 
occupied by your orator, and of great necessity to your 
orator for the proper operation of its said power plant, 
and will become still more necessary when the said 
plans are completed. j 

And your orator charges that the said canals proposed 
by said defendants, cannot be built without endangering 
the existence of your orator's dam and power plant and 
threatening the total destruction of the same. That 
neither end of said dam joins solid rock and in construct- 
ing said dam it was found that the lava ledge upon which 
it rests did not rise sufficiently on the Ada County side 
to enable the junction of that end of the dam with the 
solid rock, and on the Owyhee County end of the dam the 
said lava ledge was followed as far as possible into the 
bank of the river, but was dipping under the surface and 
it was found to be impractical to follow it and connect 
the dam to it. That the bank on the Owyhee County side 
at and adjacent to the end of the dam is composed of 
loose earth mingled with large loose rock and the said 
bank at that point is particularly susceptible of erosion 
by running water. The masonry abutment of the dam is 
joined to this bank by a puddled embankment, and your 
orator is compelled to diligently watch this bank and 
every year at high-water stage of said river to have a 
large force of men at hand and take materials from the 
adjacent hillside to protect the abutment, and for this pur- 
pose your orator maintains an open quarry in said bank, 
above and adjacent to the abutment provided with cars, 
track and derrick for the rapid handling of large quan- 



vs. Alfred A. Fraser and A. R. Crusen. 13 

titles of rock in case of emergency. In the construction 
of said timber crib dam filled with rock in the channel of 
said river between the lava island and the bank on the 
Owyhee County side a narrow channel in the river bed 
thirty feet deep and near the said abutment, was en- 
countered, and it was only with the greatest difficulty 
and after the additional expenditure of large sums of 
money that this channel was closed by use of the rock 
from the hillside adjacent to said abutment. It is pos- 
sible that at any time leaks may start under the rock 
filled crib either in the deep channel or in other parts and 
in such a case it would be absolutely necessary to have 
convenient access to the rock quarry in the hillside in 
order to save the dam from destruction. That the de- 
fendants plans if carried out would place a large canal 
around each end of your orator's dam completely isolating 
it from the mainland and from the material upon which 
your orator relies for its protection. 

And your orator further charges that the seepage from 
such canals would saturate and weaken the bonds between 
the ends of your orator's dam and the hillside to which 
they are joined and would, especially at times of high- 
water make it very probable that they would give way and 
cause the destruction of the dam. 

And your orator further shows that even if it were pos- 
sible to carry out the proposed plans of the defendants 
without threatening the destruction of the dam and power 
plant, which your orator does not admit, the diversion of 
the amount of water claimed, to wit, four thousand cubic 
feet per second, at the distance specified above your ora- 



14 The Trade Dollar Consolidated Mm. Co. 

tor's dam, would, during a large part of the year interfere 
with and deprive your orator of the use of a large part of 
the water owned and diverted by it as aforesaid, and dur- 
ing certain seasons of the year leave insufficient water in 
the river to operate the power plant of your orator even 
as constructed at the present time, and would compel the 
shutting down of said power plant and the closing of your 
orator's mines, and would prevent the completion of its 
plans as contemplated. 

And jouy orator further charges that the diversion of 
four thousand cubic feet per second of the waters of said 
river as proposed by said defendants would reduce the 
effective head of water created by said dam by at least 
twenty per cent and make a corresponding reduction in 
the output of the power plant and a corresponding re- 
duction in the value of the same, even if by the diversion 
of such quantity of water the defendants did not deprive 
your orator of the water owned and diverted by it, as 
aforesaid. 

And your orator further shows that it is the owner of 
the banks on each side of the said stream adjacent to its 
dam and through which the defendants propose to con- 
struct the said canals by virtue of patents from the govern- 
ment of the United States, and that the land owned by 
your orator on the Owyhee County side of said stream is 
more particularly described as follows, to wit : Lots num- 
bered two, seven and ten of section nineteen, and the lot 
numbered ten of section eighteen, in township two, south 
of range one east, Boise meridian, situate in Owyhee 
County, Idaho, and containing one hundred and forty- 



vs. Alfred A. Fraser and A. R. Crusen. 15 

six acres and seventy-hundredths of an acre of land, more 
or less; and the patent therefor is duly recorded in the 
office of the recorder of said county of Owyhee, in Book 
6 of patents, at pages 99, 100, of the records of said 
county; and the land on the Ada County side thereof is 
more particularly described as follows, to wit : Lots num- 
bered six and eleven of section eighteen, lots numbered 
one, eight, nine and sixteen of section nineteen, lots num- 
bered one, eight, nine and sixteen of section thirty, 
and lots numbered one, eight, nine and sixteen of section 
thirty-one, in township No. two south, range No. one east 
of Boise meridian situated in Ada County, Idaho, and 
containing four hundred and thirty-seven acres more or 
less, and the patent therefor is duly recorded in the office 
of the recorder of said county of Ada, Book 2 of patents, 
page 552. 

And your orator further shows that the said permits 
granted by the State Engineer to the defendants under 
which they claim the right to enter upon the lands and 
premises of your orator for the purposes of constructing 
their proposed canals and works, are clouds upon your 
orator's titles to said property and have greatly depre- 
ciated the value thereof. 

And your orator further shows that its rights to the 
said ten thousand cubic feet per second of the waters of 
said Snake river were acquired long prior and are superior 
to any right or claim of right of the defendants to said 
waters or any part thereof, and that if said defendants, 
as by them threatened and intended, divert any part of 
said ten thousand cubic feet per second of said waters, 



16 The Trade Dollar Consolidated Min. Co. 

by means of said canals above your orator's dam, or com- 
mence the construction of said canals or either of them, as 
proposed by them the damage to your orator will be great, 
continuing and irreparable, and pecuniary compensation 
therefor will not afford adequate relief for your orator's 
loss, damage and injury, and defendants are financially 
unable to respond in damages therefor. 

And your orator further avers upon information and 
belief that there are numerous unoccupied and unappro- 
priated sites along said Snake river and immediately tribu- 
tary thereto, where there is sufficient fall for power pur- 
poses and which are as accessible and as favorably situ- 
ated as the place where the said power plant of your 
orator is located and where the said defendants could 
erect a power plant without injury to or interference with 
the rights of others, yet the said defendants as your orator 
is informed and believes well knowing these facts and 
the rights of your orator, as aforesaid and combining and 
confederating together and contriving to injure your 
orator and deprive it of the benefits and advantages which 
would accrue to it by the free and undisturbed use of its 
said property, and against the will of your orator and in 
violation of its rights, are unlawfully and wrongfully 
seeking to obtain by means of said permits a benefit from 
the large expenditures made by your orator in the con- 
struction of its said dam and still continue so to do, and to 
threaten to commence the construction of said canals and 
works under and by virtue of said permits, all of which 
acts and doings are contrary to equity and good conscience 



vs. Alfred A. Fraser and A. R. Crusen. 17 

and tend to the manifest injury of your orator in the 
premises. 

And your orator further avers that the amount in dis- 
pute in this suit greatly exceeds exclusive of interest and 
costs the sum or value of two thousand dollars. 

For as much as your orator can have no adequate relief 
except in this court and to the end therefore, that the de- 
fendants may, if they can show why your orator should 
not have the relief hereby prayed, and may make full dis- 
closure and discovery of all the matters aforesaid, and 
according to the best and utmost of their knowledge, re- 
membrance, information and belief, full true, direct and 
perfect answer make to the matters hereinbefore stated 
and charged; but not under oath, an answer under oath 
being hereby expressly waived. 

And your orator prays that upon the final hearing of 
this cause a decree be pronounced and entered herein 
perpetually enjoining the said defendants, Alfred A. 
Fraser and A. R. Crusen, their servants, agents or em- 
ployees, from proceeding with the construction of the 
works described in said permits or either of them, and 
from interfering in any manner with the lawful use and 
enjoyment by your orator of its said power plant and 
premises, and from diverting or in any manner depriving 
your orator of the waters of said Snake river owned and 
diverted by your orator as aforesaid, and that the said 
permits granted to said defendants be canceled and an- 
nulled as a cloud upon your orator's title to said lands 
and premises and that your orator be secured in its pos- 



18 The Trade Dollar Consolidated Min. Co. 

session thereof. And your orator further prays that a 
provisional or preliminary writ of injunction do immedi- 
ately issue enjoining said defendants from proceeding 
with the construction of said works, as above specifically 
in this paragraph set forth, until the final hearing of this 
cause, and for such other and further relief as may be 
proper in the premises. 

May it please your Honors to grant unto your orator, 
not only a writ of injunction conformable to the prayer 
of this bill, but also a writ of subpoena of the United 
States of America, directed to said Alfred A. Fraser and 
A. E. Crusen, commending them on a day certain to ap- 
pear and answer unto this bill of complaint, and to abide 
and perform such order and decree in the premises as to 
the Court shall seem proper and required by the principles 
of equity and good conscience. 

JOHN F. NUGENT and 
JOHNSON & JOHNSON, 
Solicitors for Complainant. 
112 N. Sixth St., Boise, Idaho, where papers in this suit 
are to be served on Complainant. 
RICHARD H. JOHNSON, 
Of counsel. 
THE TRADE DOLLAR CONSOLIDATED MIN- 
ING COMPANY, 

By FREDRIC IRWIN, 

General Manager. 



vs. Alfred A. Fraser and A. R. Grusen. 19 

United States of America, 
District of Idaho, 
County of Owyhee, — ss. 

On this 21st day of December 1904, before me personally 
appeared Frederic Irwin, the general manager of the Trade 
Dollar Consolidated Mining Company, the complainant 
above named, who being by me first duly sworn, deposes 
and says that he is the general manager of the Trade Dol- 
lar Consolidated Mining Company, and familiar with its 
business and affairs, and that he has read the foregoing 
bill of complaint and knows the contents thereof, and that 
the same is true of his own knowledge, except as to the 
matters therein stated to be on information or belief, and 
as to those matters he believes it to be true. 

FREDERIC IRWIN. 

Subscribed and sworn to before me this 21st day of De- 
cember, 1904. 

[Seal] JOHN LAMB, 

Notary Public, Owyhee County, Idaho. 

Exhibit "A." 

No. 1287 
514— Application for Permit to Appropriate Water. 
APPLICATION FOR PERMIT. 
To Appropriate the Public Waters of the State of Idaho. 
1. Name of applicant; Alfred A. Frazer, A. R, Cruzen, 
& F. B. Whitin. 
Postoffice address : P. O. Boise, Idaho. 
County: Ada, 



20 The Trade Dollar Consolidated Min. Co. 

II. The financial resources of the applicant are : 

(a) Cash on hand: Ten Thousand Dollars. 

(b) Treasury stock: 

(c) Bonds to be issued: Yes. 

(d) Other resources: 

2. The quantity of water claimed is 2000 cubic feet per 

second. 

3. Sfource of water supply: 'Snake River, Owyhee 

County, Range 1 E. 

4. Location of point of diversion: Section 18, Town, 2S., 
II. Mining, power, manufacturing or transportation 

purposes : 

(a) To be used for Power. 

(b) Amount of power to be generated: 4000 horse- 

power. 

(c) At what point: SW. 1/4 of SE. 1/4 of Sec. 18, 

T. 2 S. R., 1 E. 

(d) If water is to be returned to stream ("yes" or 

"no") : Yes. 

(e) If "yes" at what point : Power House. 

6. Estimated cost of works: Fifty Thousand Dollars. 

7. Description of Works for Diversion: 

I. Kind of works (reservoir: dam, ditch, flume, pipes 

or other): Ditch and Power-House. 

II. Dimensions of Works: 

(c) Size of headgate: Width 80 feet, height 18 feet. 

(d) Ditch (flume or pipe): Width at bottom 65 feet, 

width at water line 81 feet, depth of water 8 
feet. Average grade per mile is 1.58 feet. 



vs. Alfred A. Fraser and A. R. Cry sen. 21 

Length of ditch is 1100 miles, and it crosses 
the following quarter section SW. 4 of SE 4 
of Sec. 18, T. 2 S, R. 1 E. B. M., which is the 
point of intended use. 

8. Time required for the completion of the construction 

of such work is five years, ( The time must in no case 
exceed five years after date of approval of applica- 
tion. ) i 

9. Time required for the complete application of the 

water to the proposed use is four years. (The time 
must in no case exceed four years after the date set 
for the completion of works as defined in Section 8.) 

ALFRED A. FRAZER, 
A. R. CRUZEN. 
F. B. WHITIN. 

Remarks: (This space not to be written in by appli- 
cants. ) 

Boise Idaho, November 8th, 1904. 

For and in consideration of the sum of One Thousand 
($1000) Dollars, in hand paid, receipt whereof is hereby 
acknowledged, I hereby sell, assign, transfer and set over 
to A. R. Oruzen of Boise, Idaho, an undivided one-third 
interest in and to the within and foregoing application 
or permit for the appropriation of the waters therein set 
forth, together with all the franchises and rights apper- 
taining thereto. 

ALFRED A. FRAZER. 

Witness: JAMES S. BOGART. 



22 The Trade Dollar Consolidated Min. Co. 



State of Idaho, 
County of Ada, — ss. 

On this 8th day of November in the year 1904, before 
me, James S. Bogart, a Notary Public, in and for said 
County, personally appeared Alfred A. Frazer, known to 
me to be the person whose name is subscribed to the an- 
nexed instrument, and acknowledged to me that he exe- 
cuted the same. 

In witness whereof, I have hereunto set my hand and 
affixed my notarial seal, the day and year in this certificate 
first above written. 

[Seal] JAMES S. BOGAKT, 

Notary Public. 

Boise, Idaho, Nov. 8th, 1904. 
For value received I hereby sell, transfer and assign to 
Alfred A. Frazer, all my right, title and interest i>i 
to the within application or permit and the franchises 
connected therewith. 

F. B. WHITIN. 

In presence of: 

W. SCOTT NEAL. 



vs. Alfred A. Fraser and A. R. Crusen. 23 

State of Idaho, 
County of Ada, — ss. 

On this 8th day of November in the year 1904, before 
me, W. Scott Neal, a Notary Public in and for said County, 
personally appeared F. B. Whitin, known to me to be the 
person whose name is subscribed to the annexed instru- 
ment, and acknowledged to me that he executed the same. 

In witness whereof, I have hereunto set my hand and 
affixed my notarial seal, the day and year in this certificate 
first above written. 

[Seal] W. SCOTT NEAL, 

Notary Public. 

APPROVAL OF STATE ENGINEER. 

The number of this permit is 968. 

Date of first receipt of- applicaion 2:45 P. M., November 
2, 1904. 

Returned to applicant for correction November 5, 1904, 

Corrected application received November 29, 1904. 

Recorded in Book 4, Page 968 Approved November 29, 
1904. 

This is to certify that I have examined the within ap- 
plication for a permit to appropriate the public waters 
of the State of Idaho and hereby grant the same, subject 
to the following limitations and conditions: 



24 The Trade Dollar Consolidated Min. Co. 

One-fifth of the work above specified to be completed on 
or before May 29, 1907. 

The whole of said work to be completed on or before 
November 29, 1909. 

The time for the proof of beneficial use of water appro- 
priated in accordance herewith, to extend to November 
29, 1913. 

Witness my hand this 29th day of November, 1904. 

JAS. STEPHENSON, Jr., 

State Engineer. 

State of Idaho, 
County of Ada, — ss. 

I, Jas. Stephenson, Jr., State Engineer of the State of 
Idaho, hereby certify that the within and foregoing is a 
full and true copy of permit number sixty-eight, as the 
same appears of record in my office. 

Witness my hand and seal this 16th day of December, 
1904. 

[Seal] JAS. STEPHENSEN, Jr., 

State Engineer. 



25 






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IDAHO ELECTRIC POWER CO 

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commencing <W. oomjsle+io^ ifa same ©n-lKe3.&8 day of M^y ISo-*- 
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vs. Alfred A. Fraser and A. It. Crusen. 27 

Exhibit "B." 

No. 1288 
514— Application for Permit to Appropriate Water. 

APPLICATION FOR PERMIT. 

To Appropriate the Public Waters of the State of Idaho. 

1. Name of applicant: Alfred A. Frazer, A. R, Cruzen, 

F. B. Whitin. 
Postoffice address: P. O. Boise, Idaho. 
County: Ada. 
II. The financial resources of the applicant are: 

(a) Cash on hand: Ten Thousand Dollars. 

(b) Treasury stock: 

(c) Bonds to be issued: Yes. 

(d) Other resources: 

2. The quantity of water claimed is 2000 cubic feet per 
second. 

3. Source of water supply: Snake River, Ada County. 

4. Location of point of diversion: Section 18, Town 2i S., 
Range 1 E. 

II. Mining, power, manufacturing or transportation 
purposes : 

(a) To be used for Power. 

(b) Amount of power to be generated: 4000 horse- 

power. 

(c) At what point: NE. 4 of SOB. 4, Sec. 18, T. 2 S., 

R. 1 E. 

(d) If water is to be returned to stream ("yes" or 

"no") : Yes. 



28 The Trade Dollar Consolidated Min. Co. 

(e) If "yes" at what point: At Power House. 

6. Estimated cost of works: Fifty Thousand Dollars. 

7. Description of Works for Diversion: 

I. Kind of works (reservoir, dam, ditch, flume, pipes 

or other): Ditch and Power-House. 

II. Dimensions of Works: 

(c) Size of headgate: Width 80 feet, height 18 

feet. 

( d) Ditch ( flume or pipe) : Width at bottom 65 feet, 

width at water line 81 feet, depth of water 8 
feet. Average grade per mile is 1.58 feet. 
Length of ditch is 800 miles, and it crosses 
the following quarter sections SEL 4 of Sec. 
18, T. 2 S., K. 1 E. B. M., which is the point 
of intended use. 

8. Time required for the completion of the construction 

of such work is five years. ( The time must in no case 
exceed five years after date of approval of applica- 
tion. ) 

9. Time required for the complete application of the 
water to the proposed use is four years. (The time 
must in no case exceed four years after the date set 
for the completion of works as defined in Section 8. ) 

ALFRED A. FRAZER. 
A. R. CRUZEN. 
F. B. WHITIN. 

Remarks: (This space not to be written in by appli- 
cants. ) 



vs. Alfred A. Fraser and A. R. Criisen. 29 

Boise Idaho, November 8th, 1904. 

For and in consideration of the sum of One Thousand 
($1000) Dollars, in hand paid, receipt whereof is hereby 
acknowledged, I hereby sell, assign, transfer and set over 
to A. R. Cruzen of Boise, Idaho, an undivided one-third 
interest in and to the within and foregoing application 
or permit for the appropriation of the waters therein set 
forth, together with all the franchises and rights apper- 
taining thereto. 

ALFRED A. FRAZER. 

Witness: JAMES S. BOGART. 

State of Idaho, 
County of Ada, — ss. 

On this 8th day of November in the year 1904, before 
me, James S. Bogart, a Notary Public, in and for said 
County, personally appeared Alfred A. Frazer, known to 
me to be the person whose name is subscribed to the an- 
nexed instrument, and acknowledged to me that he exe- 
cuted the same. 

In witness whereof, I have hereunto set my hand and 
affixed my notarial seal, the day and year in this certificate 
first above written. 

[Seal] JAMES S. BOGART, 

Notary Public. 



30 The Trade Dollar Consolidated Min. Co. 

Boise, Idaho, Nov. 8th, 1904. 
For value received I hereby sell, transfer and assign to 
Alfred A. Frazer, all my right, title and interest in and 
to the within application or permit and the franchises con- 
nected therewith. 

F. B. WHITIN. 
In presence of: 

W. SCOTT NEAL. 

State of Idaho, 
County of Ada, — ss. 

On this 8th day of November in the year 1904, before 
me, W. Scott Neal, a Notary Public in and for said County, 
personally appeared F. B. Whitin, known to me to be the 
person whose name is subscribed to the annexed instru- 
ment, and acknowledged to me that he executed the same. 

In witness whereof, I have hereunto set my hand and 
affixed my notarial seal, the day and year in this certificate 



first above written. I 

[Seal] W. SCOTT NEAL, 

Notary Public. 

APPROVAL OF STATE ENGINEER. 

The number of this permit is 968. 

Date of first receipt of applicaion 2:45 P. M., November 

2, 1904. 
Returned to applicant for correction November 5, 1904. 



vs. Alifred A. Fraser and A. R. Crusen. 31 

Corrected application received November 29, 1904. 
Recorded in Book 2, Page 968 Approved November 29, 
1904. 

This is to certify that I have examined the within ap- 
plication for a permit to appropriate the public waters 
of the State of Idaho and hereby grant the same, subject 
to the following limitations and conditions: 

One-fifth of the work above specified to be completed on 
or before May 29, 1907. 

The whole of said work to be completed on or before 
November 29, 1909. 

The time for the proof of beneficial use of water appro- 
priated in accordance herewith, to extend to November 

29, 1913. 

Witness my hand this 29th day of November, 1904. 

JAS. STEPHENSON, Jr., 

State Engineer. 
State of Idaho, 
County of Ada, — ss. 

I, Jas. Stephenson, Jr., State Engineer of the State of 
Idaho, hereby certify that the within and foregoing is a 
full and true copy of permit number sixty-eight, as the 
same appears of record in my office. 

Witness my hand and seal this 16th day of December, 
1904. 

[Seal] JAS. STEPHENSON, Jr., 

State Engineer. 




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IDAHO ELECTRIC POWER C 

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vs. Alfred A. Fraser and A. R. Crusen. 33 

[Endorsed]: No. 245. In the Circuit Court of the 
United States in and for the Central Division of the 
District of Idaho. The Trade Dollar Consolidated Min- 
ing Company, a Corporation, Complainant, vs. Alfred A. 
Fraser and A. Ri. Crusen, Defendants. Bill of Com- 
plaint. (In Equity.) Filed Dec. 23d, 1904. A. L. Rich- 
ardson, Clerk. Johnson & Johnson and John F. Nu- 
gent, Solicitors and of Counsel for Complainant. 



In the Circuit Court of the United States for the Central 
Division of the District of Idaho. 

IN EQUITY. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY' (a Cor- 
poration), 

Complainant 
vs. 



No. 245. 



ALFRED A. FRASER and A. Rl. 

CRUSEN, 

Defendants. 

Subpoena ad Respondendum. 

The President of the United States of America to Alfred 
A. Fraser and A. R. Crusen, Greeting: 

You and each of you are hereby commanded that you 
be and appear in said Circuit Court of the United States, 
at the courtroom thereof, in Boise, in said District, on 
the first Monday of February next, which will be the 
6th day of February, A. D. 1905, to answer the exigency 



34 The Trade Dollar Consolidated Min. Co. 

of a bill of complaint exhibited and filed against you 
in onr said court, wherein T;he Trade Dollar Consoli- 
dated Mining Company, a corporation, is complainant, 
and you are defendants, and further to do and receive 
what our said Circuit Court shall consider in this be- 
half, and this you are in no wise to omit under the 
pains and penalties of what may befall thereon. 

And this is to command you, the marshal of said dis- 
trict, or your deputy, to make due service of this our 
writ of subpoena and to have then and there the same. 

Hereof fail not. 

Witness the Honorable MELVILLE W. FULLER, 
Chief Justice of the Supreme Court of the United States, 
and the seal of our said Circuit Court, affixed at Boise 
in said district, this 23d day of December in the year 
of our Lord one thousand nine hundred and four, and 
of the independence of the United States the one hun- 
dred and twenty-ninth. 

[Seal] A. L. RICHARD SON, 

Clerk. 

I hereby certify that I received the within subpoena 
ad respondendum on the 23d day of December, 1904, at 
Boise, Idaho, and served the same on Alfred A. Fraser, 
one of the defendants named therein, at Boise, Idaho, 
on December 23d, 1904, by handing to and leaving with 
him personally a certified copy of the subpoena ad re- 
spondendum, together with a certified copy of the com- 
plaint. I further certify that I served the same on A. 
R. Crusen, the other defendant named in said writ, at 



vs. AHfred A. Fraser and A. R. Crusen. 35 

Boise, Idaho, on December 26th, 1904, by handing to and 
leaving with him personally, a certified copy of the 
subpoena ad respondendum, together with a certified 
copy of the complaint; and I further certify that I re- 
ceived a certified copy of an order to show cause in the 
same action at Boise, Idaho, on December 26th, 1904, 
and that I served the same on Alfred A. Fraser, one of 
the defendants named in said action, at Boise, Idaho, 
on December 26th, 1904, by handing to and leaving 
with him personally the certified copy of the order to 
show cause, together with certified copies of affidavits 
of A. J. Wiley and Douglas W. Ross. 

R. ROUNDS, 
United States Marshal. 

By 0. R. Bryon, 
Deputy. 

Dated at Boise, Idaho, December 28th, 1904. 

[Endorsed]: (Original.) No. 245. In the Circuit 
Court of the United States for the Central Division of 
the District of Idaho. In Equity. The Trade Dollar 
Con'd. M. Co. vs. Alfred A. Fraser et al. Subpoena ad 
Respondendum. Returned and filed Dec. 29, 1904. A. 
L. Richardson, Clerk. 



36 The Trade Dollar Consolidated Min, Co. 



In the Circuit Court of the United States, in and for tJw 
Central Division of the District of Idaho. 

THE TRADE DOLLAR CONSOLI- 
DATED' MINING COMPANY 1 (a Cor- 
poration), 

Complainant,! 
vs. 

ALFRED A. FRASER and A. R. 

CRUSEN, 

Defendants. / 

Affidavit of A. J. Wiley. 

A. J. Wiley, being first duly sworn, on his oath says 
that he is a civil engineer and a member of the Ameri- 
can Society of Civil Engineers, and has been practicing 
his profession for about twenty years last past. That 
he has been devoting his time especially to hydraulic 
engineering during the last fifteen years, and during 
that time has been successively assistant engineer in 
the United States Geological Survey, Chief Assistant 
Engineer of the Idaho Mining and Irrigation Company, 
in the construction of the original New York Canal, 
Chief Engineer of the Owyhee Land and Irrigation Com- 
pany in the construction of the Bruneau dam and canal, 
Chief Engineer of the Trade Dollar Consolidated Min- 
ing Company in the construction of the dam and power 
plant at Swan Falls mentioned in the bill of complaint, 
Chief Engineer of the Boise-Payette Electric Power 
Company, Chief Engineer for the city of Cheyenne, Wyo- 
niing, for the Cheyenne Dam, Consulting Engineer of 



vs. Alfred A. Fraser and A. R. Crusen. 37 

the United States Geological Survey Reclamation Ser- 
vice, Chief Engineer of the Barber Lumber Dam and 
Power Plant, near Boise City, Idaho. 

That he is familiar with the power plant and dam 
of the Tirade Dollar Consolidated Mining Company, at 
Swan Falls, Idaho, and was present during its construc- 
tion, as Chief Engineer, thereof, as aforesaid. 

That he has read the bill of complaint in the above- 
entitled suit, and also the permits granted by the State 
Engineer of Idaho, and has examined the maps and 
plats filed therewith, all of which are referred to in the 
said bill. That the matters stated in said bill with 
reference to the appropriation of ten thousand cubic feet 
per second of the waters of Snake river by the prede- 
cessor in interest of complainant, and the diversion 
thereof by complainant by the construction of the said 
dam and power-house at Swan Falls and said transmis- 
sion line, are true of affiant's own knowledge. That the 
facts therein stated with reference to the manner in 
which said dam was constructed, and the proposed plans 
of the complainant as to the beneficial use of the said 
water claimed by it are also known to affiant, and said 
allegations are true of his own knowledge, and he has 
been and now is in the employ of complainant for the 
purpose of making necessary and proper arrangements 
and preparing plans, specifications and estimates for 
conducting the said power to various points mentioned 
in said complaint, and for the purpose of constructing 
pumping plants for irrigation purposes, as alleged in 
said bill of complaint. 



38 TJie Trade Dollar Consolidated Min. Co. 

That the allegations as to the quantity of water nec- 
essary to the operation of complainant's plant both 
at the present time and when the same is completed are 
true, as are also the statements with reference to the 
quantity of water flowing in said river at Swan Falls. 

And affiant further says that the proposed operations 
of the defendants, as described in said permits, could 
not be carried out without threatening and menacing 
the safety of the complainant's dam and power-house, as 
set forth in complainant's bill. 

That the facts relating to the head of water created 
by the dam and necessary to the proper operation of 
complainant's power plant are true, and also the reduc- 
tion of the output of power and the corresponding re- 
duction in the value of the plant caused by the diminu- 
tion of the head of water which would result from the 
proposed diversion of water by defendants, are true. 

That the said permits granted to defendants by the 
State Engineer are a cloud upon complainant's titles to 
its land and water right and have very materially im- 
paired the value thereof, and prevent the complainant 
from proceeding further with its proposed plans to ap- 
ply to a beneficial use the remainder of the water ap- 
propriated and diverted by complainant. 

And further affiant saith not. 

A. J. WILEY. 

Subscribed and sworn to before me this twenty-second 
day of December, 1904. 

[Seal] RICHARD H. JOHNSON, 

; Notary Public. 



vs. Alfred A. Fraser and A. R. Cruscn. 30 

[Endorsed]: No. 245. In the Circuit Court of the 
United States, Central Division, District of Idaho. The 
Trade Dollar Consolidated Mining Co., a Corporation, 
Complainant, vs. Alfred A. Fraser and A. R. Crusen, 
Defendants. Affidavit of Merits. Filed Dec. 24, 1904. 
A. L. Richardson, Clerk. 



In the Circuit Court of the United States, in and for the 
Central Division of the District of Idaho. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, I 
vs. 

ALFRED A. FRASER and A. R. 
ORUSEN, 

Defendants. 

Affidavit of Douglas W. Ross. 

Douglas W. Ross, being first duly sworn on his oath 
says, that he is a civil engineer of eighteen years' ex- 
perience, and a member of the American Society of Civil 
Engineers. That during the past fourteen years he 
has been engaged in irrigation work in the State of 
Idaho, and the study of the water supply of the streams 
used for that purpose. That during four years of that 
time he was State Engineer of Idaho, and for the past 
two years has been in charge of irrigation work in 
Idaho under the United States Reclamation Service. 
For the past five years has had supervision of the meas- 



40 The Trade Dollar Consolidated Min. Co. 

urements of the flow of Snake river made by the United 
States Geological Survey, and is familiar with the irri- 
gation possibilities of Snake Eiver Valley and all the 
plans designed for the complete development of the 
same. That he is acquainted with the power develop- 
ment plans of the Trade Dollar Consolidated Mining 
Company and has examined its dam and power plant at 
Swan Falls, mentioned in the bill of complaint. That 
it is his opinion in carrying out its proposed plans for 
power development said company will utilize and re- 
quire all of the water flowing in Snake river at its dam 
at low-water stage. 

That he has read the bill of complaint in the above- 
entitled suit, and also the permits granted by the State 
Engineer of Idaho and has examined the maps and plats 
filed therewith, all of which are referred to in the said 
bill. That the matters stated in said bill with reference 
to the appropriation of ten thousand cubic feet per sec- 
ond of the waters of Snake river by the predecessor in 
interest of complainant and the diversion thereof by 
complainant by the construction of the said dam and 
power-house at Swan Falls and said transmission line, 
are true of affiant's own knowledge. 

That when the irrigation plans, above Swan Falls, 
and referred to in the bill of complaint are carried out 
there will be flowing in said river at Swan Falls at the 
low-water stage about 4,500 cubic feet per second of 
water, which amount the said complainant requires for 
the proper operation of its plant as at present con- 
structed. That the diversion of 4,000 second-feet by 



vs. Alfred A. Fraser and A. R. Crusen. 41 

defendant as proposed in accordance with the said per- 
mits, would compel the complainant to shut down its 
power plant during the low-water stage of the river. 

And further affiant saith not. 

DOUGLAS W. ROSS. 

Subscribed and sworn to before me this 26th day of 
December, 1904. 

[Seal] RICHARD H. JOHNSON, 

Notary Public. 

[Endorsed] : No. 245. U. S. Circuit Court, Central 
Division, District of Idaho. The Trade Dollar Consoli- 
dated M. Co. vs. Alfred A. Fraser & A. R. Orusen. Affi- 
davit of D. W. Ross. Filed Dec. 26, 1904. A. L. Rich- 
ardson, Clerk. 



In the Circuit Court of the United States, in and for the Cen- 
tral Division of the District of Idaho. 

THE TRADE) DOLLAR CONSOLI-\ 
DATED MINING COMPANY (a Cor- j 
poration), / 

Complainant,' 

vs. ) 

ALFRED A. FRASER and A. R. CRU- 
SEN, 

Defendants. 

Order to Show Cause why Injunction Should not Issue. 
Upon reading the bill of complaint herein and the af- 
fidavits of A. J. Wiley and D. W. Ross and on motion of 



42 The Trade Dollar Consolidated Min. Co. 

Richard H. Johnson, Esq., solicitor for complainant, it 
is hereby ordered this twenty-fourth day of December, 
1904, that the defendants show cause, if any they have, 
before the Judge of said court at the courtroom of said 
court in the city of Boise, District of Idaho, on Wednes- 
day the fourth day of January, 1906, at ten o'clock A. M. 
or as soon as counsel can be heard, why the provisional 
or preliminary injunction until the final hearing of this 
cause should not issue pursuant to the prayer of said 
bill. 

JAB. H. BEATTY, 

Judge. 
Dated Boise, Idaho, December 24, 1904. 

[Endorsed]: No. 245. In the Circuit Court of the 
United States, Central Division, District of Idaho. The 
Trade Dollar Consolidated Mining Co., a Corporation, 
Complainant, vs. Alfred A. Fraser and A. R. Ousen, De- 
fendants. Order to Show Cause. Filed Dec. 24, 1904. 
A. L. Richardson, Clerk. 



vs. Alfred A. Fraser and A. R. Crusen. 43 



In the Circuit Court of the United States, Ninth Circuit, Dis- 
trict of Idaho, Central Division. 

IN EQUITY. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 
vs. 



No. 245. 



ALFRED A. FRASER and A. R. CRU- 
SON, 

Defendants. 

Answer. 

Answer of the defendants, Alfred A. Fraser and A. 
KL Cruson, to the bill of complaint of the Trade Dollar 
Consolidated Mining Company, complainant. 

These defendants, Alfred A. Fraser and A. R. Crnson, 
now and at all times saving and reserving unto them- 
selves all benefit and advantage of exception which can 
or may be had or taken to the many errors, uncertainties 
or other imperfections in the said bill of complaint con- 
tained, for answer thereunto or unto so much or such 
part thereof as these defendants are advised is or are 
material or necessary for them or either of them to make 
answer unto, say as follows: 

1. Defendants admit the allegations contained in 
paragraphs 1 and 2 of complainant's bill. 

2. That as to the allegation in said complainant's 
bill to the effect "that on the 17th day of January, 1900, 



44 TJie Trade Dollar Consolidated Min. Co. 

Joseph Hutchinson of Silver Oity, in said county of 
Owyhee, by his notice or location of water right and 
dam-site duly appropriated and claimed the right to use 
10,000 cubic feet per second of the waters of Snake 
river, Idaho, to be diverted from said river at a point 
about ten miles up said river from the town of Guffey, 
in said county of Owyhee/' these defendants admit that 
upon said date said Joseph H. Hutchinson posted his 
notice as stated in said bill of complaint at the point 
designated, claiming the right by the terms of said no- 
tice to the use of 10,000 cubic feet per second of the wa- 
ters of Snake river, but upon information and belief al- 
lege the fact to ibe that neither said Joseph H. Hutchin- 
son nor his successor in interest, the complainant, has 
ever appropriated, diverted or applied to a beneficial 
use the waters of said Snake river so claimed under said 
notice to any amount in excess of 1,000 cubic feet per sec- 
ond, and that the complainant has never acquired, and 
does not now own and is not entitled to divert, appro- 
priate or use the waters of Snake river to exceed 1,000 
cubic feet per second, by reason of the failure of said 
complainant and its predecessors in interest to divert 
and apply said waters to a beneficial use within a rea- 
sonable time after the posting of said notice. 

3. That as to the allegation in complainant's bill to 
the effect "that on the 4th day of May, 1000, the said 
Joseph H. Hutchinson posted at or near said point of 
diversion an amended or supplemental notice claiming 
and appropriating said 10,000 cubic feet of said waters 
of Snake river," these defendants admit that said no- 



vs. Alfred A. Fraser and A. R. Crusen. 45 

tice was so posted as stated in said complaint, but upon 
information and belief allege the fact to be that neither 
said Joseph H. Hutchinson nor his successor in interest, 
this complainant, has ever diverted, appropriated or 
applied to a beneficial use the waters of Snake river 
in any amount to exceed 1,000 cubic feet per second, 
and that the complainant is not now the owner and 
is not entitled to appropriate, divert or use the waters 
of Snake river in any amount in excess of 1,000 cubic 
feet per second, by reason of the failure of said com- 
plainant and its predecessor in interest to divert and 
apply said waters to a beneficial use within a reason- 
able time after posting said notice. 

4. That as to the allegation in the complainant's 
bill "that in the month of July, 1900, the complainant 
commenced the construction of a dam at said point of 
diversion known as Swan Falls for the purpose of di- 
verting said 10,000 cubic feet per second of the waters 
of said river and placing the same to a beneficial use 
for which the same is appropriated as aforesaid," 
these defendants allege that they have no knowledge, 
information or belief as to what were the object and 
purposes at the time of the commencement of the con- 
struction of said dam as to appropriating said 10,000 
cubic feet per second of the waters of said river and 
placing the same to the beneficial uses to which they 
were appropriated, and cannot set forth as to their be- 
lief or otherwise, and therefore leave the complainant 
to make such proof of said facts as it may be advised 
is necessary and proper, but allege the fact to be that 



46 The Trade Dollar Consolidated Min. Co. 

whatever the purposes at the time of the commencement 
of the construction of said dam were, they have never 
at any time actually appropriated or diverted or ap- 
plied to a beneficial use the waters of said Snake river 
to any extent in excess of 1,000 cubic feet per second, 
and deny that the complainant has been continuously 
or at all engaged since July, 1900, in prosecuting its 
work and in making valuable improvements, but upon 
information and belief allege the fact to be that for 
more than four years the said complainant has made 
no effort to appropriate any amount of the waters of 
Snake river in excess of 1,000 cubic feet per second. 

5. That the defendants have no knowledge, informa- 
tion or belief sufficient to enable them to answer the 
allegation to the effect "that up to the present time your 
orator has completed ready for use six of the proposed 
wheel hays and has already installed and is oper- 
ating in four of them water-wheels for generating elec- 
trical power," and therefore deny said allegation and 
leave the complainant to make such proof of said fact 
as it may be advised is necessary or proper. Deny that 
the complainant is now generating or has been at any 
time generating electrical power to the capacity of 
3,600 H. P. or any greater amount of electrical power 
than 1,200 H. P. and deny that the complainant is now 
or has at any time ibeen utilizing or requiring 2,150 cubic 
feet per second of said waters of Snake river, or any 
amount in excess of 1,000 cubic feet per second of said 
water. 

6. Defendants, upon information and belief, deny 



vs. Alfred A. Fraser and A. R. Crusen. 47 

that since the alleged acquisition of said water rights 
as set forth in the complaint or at any time other than 
as in this answer specifically admitted, the complain- 
ant has been diligently or at all engaged in the employ- 
ment of engineers at great or any expense to make investi- 
gations or prepare plans, specifications or estimates for 
the purpose of selling additional electrical power which 
would or could be generated in the power plant of the 
complainant so completed, or to supply or sell the same 
to various cities or towns in the counties of Ada, Canyon, 
Elmore or elsewhere or for the purpose of using said elec- 
trical power to pump water for the irrigation of large or 
any tracts of land in said counties, but upon 
information and belief allege the fact to be that 
said plaintiff has not at any time used or at- 
tempted to use or made any preparation, effort 
or plan to use any amount of the waters of Snake 
river in excess of 1,000 cubic feet per second as aforesaid, 
and has made no effort, plan or arrangement to supply 
electrical power to any of the cities of Ada, Canyon or 
Elmore County, or elsewhere, except the towns and mines 
in Owyhee County, as set forth in the complaint. Deny 
that the plaintiff is now or has been at any time proceed- 
ing with due diligence to carry out or complete original 
plans to appropriate said 10,000 cubic feet per second, 
and deny that the complainant will at any time require 
or be able to make use of the entire 10,000 cubic feet 
claimed in its notice of appropriation or any amount in 
excess of 1,000 cubic feet, and upon information and be- 
lief allege the fact to be that its present plant as con- 



48 The Trade Dollar Consolidated Min. Co. 

structed and completed does not require and will not re- 
quire to exceed 1,000 cubic feet per second, and that the 
complainant has no plans and arrangements, and has 
made no effort to make use of any greater amount of the 
waters of Snake river. 

7. Defendants have no knowledge, information or be^ 
lief to enable them to answer the allegation that from Au- 
gust to November of each year the quantity of water 
flowing in Snake river at Swan Falls is about 6,500 cubic 
feet per second, and they therefore deny said allegation 
and leave the complainant to make such proof of 
said facts as it may ibe advised is necessary or 
proper; defendants have no knowledge, informa- 
tion or belief to enable them to answer the al- 
legations that the irrigation works known as the 
Twin Palls Irrigation Works, when completed, will 
take from said river, by means of a canal, about 3,400 
cubic feet per second of the waters of said Snake river, 
and that after said diversion the amount of water in said 
river at low-water stage will be about 4,500 cubic feet per 
second, and they therefore deny said allegations and each 
of them and leave the complainant to make such proof of 
said facts as it may be advised is necessary and proper. 

8. Defendants deny that the complainant is the owner 
by purchase, appropriation or otherwise or for any pur- 
pose at all of the waters flowing in Snake river at low- 
water stage thereof or is the owner of any greater amount 
of the waters flowing in said river than 1,000 cubic feet 
per second ; admit that the complainant is entitled to the 
full, free and uninterrupted use of its appropriation, and 



vs. Alfred A. Fraser and A. R. Crusen. 49 

to the full, free and uninterrupted use of all waters which 
it has applied to a beneficial use in the operation of its 
mines only, but upon information and belief allege the 
fact to be that it has neither appropriated nor applied 
to beneficial use any amount in excess of 1,000 cubic feet 
per second, and further alleges that no greater amount 
than 1,000 cubic feet per second is necessary for the oper- 
ation of the power plant of the said complainant, 

9. Defendants admit the allegations found upon pages 
-7 and 8 and down to the words Exhibit "B," upon page 
9 of the complainant's bill, but allege the fact to be that 
the said defendants do not threaten or purpose or intent 
at any time to commence the construction of any ditches 
or canals as indicated by its maps or plans or otherwise 
for the purpose of diverting the 4,000' cubic feet per sec- 
ond other than as hereinafter in the further answer of 
the defendants fully and specifically set forth, and fur- 
ther allege that the defendants do not purpose or in- 
tend at any time to claim any of the waters which have 
been actually appropriated and applied to a beneficial 
use by the complainant or its predecessor in interest, 
and that while the defendants allege according' to their 
information and belief that the complainant has not 
appropriated or applied to a beneficial use to exceed 
1,000 cubic feet per second, nevertheless, should it be 
shown to the court that the complainant has appropri- 
ated an amount in excess of that, the defendants al- 
lege that it is not their intention or purpose to claim 
the right to use or interfere with the use of any of the 
waters which have actually been appropriated and ap- 



50 The Trade Dollar Consolidated Mm. Co. 

plied to a beneficial use under the laws of the State of 
Idaho by the complainant and that it claims its right 
,to the waters of Snake river in so far as it makes its 
claim by at all times acknowledging the priority to the 
right and use of said water by the complainant to the 
extent of the complainant's actual appropriation and 
use. 

10. As to the allegation in the complainant's bill 
"that the proposed canal of defendants on the Owyhee 
county side of said river is to approach within 35 feet 
of the west end of said dam and the proposed canal on 
the Ada county side within 100 feet of the east end of 
said dam," these defendants aver that the exact loca- 
tion of the defendant's lines of canal and the exact dis- 
tance from the end of the complainant's dam has not yet 
been definitely determined, but these defendants will 
when they take up the matter of condemnation for right 
of way for said lines of canal employ experienced and 
expert engineers to locate said canal lines, and will pro- 
ceed with due care and caution so as to avoid injury or 
embarrassment to the complainant's dam or rights, and 
allege from present information that it is entirely prac- 
ticable for the defendants to so construct their said 
canals as to in no way interfere with complainant's dam 
or injure the same. Deny that the land through and 
across which it is proposed to construct said canals is 
of great or any necessity to complainant for the opera- 
tion of its power plant, or that it will become necessary 
by reason of the completion of its plants if the same are 
ever completed, and defendants do not admit that they 



vs. Alfred A. Frascr and A. R. Crusen. 51 

will be. Deny that the canals proposed by the defend- 
ants cannot be built without injuring- the existence of 
the complainant's dam or power plant or threatening 
the destruction of the same, but allege that the same 
'Can be constructed so as not in any way to interfere, 
embarrass or injure the complainant's dam or power 
plant or threaten the destruction of the same. 

11. That the defendants have no knowledge, infor- 
mation or belief sufficient to enable them to answer the 
allegations upon page 10 of the complainant's bill rela- 
tive to the manner in w T hich said complainant's dam is 
constructed or as to the work which was necessary in 
the construction of the same, and leave the complain- 
ant to make such proof of the matter as it may be ad- 
vised is necessary and proper. But the defendants 
allege particularly as to the Ada County side that there 
is a large hill or mountain existing or situated between 
the end of complainant's dam and the line of canal, and 
that in no way could the construction of said canal of 
the defendants injure or interfere in any manner or at 
all with the safety or use of the complainant's dam or 
its power plant. Deny that the defendants' canal would 
completely or at all isolate the complainant from its 
dam or from material upon which the complainant re- 
lies for protection to its dam. Deny that the seepage 
from the canals of the defendant, or either of them, 
would saturate it or weaken the bonds between the 
ends of the complainant's dam and the hillside to which 
they are joined or would at any time or at all make it 



52 The Trade Dollar Consolidated Min, Co. 

probable that the said dam would give way or would 
cause the destruction of said dam. 

12. Deny that the use of the water to the extent 
claimed by the defendants would at any time or at all 
interfere with or deprive the complainant of the use of 
any water owned or appropriated by it at any time or 
at all, or would compel the shutting down of the power 
plant of the complainant or prevent its completion as 
it is alleged said completion is contemplated. Deny 
that the appropriation, diversion or use of the water 
claimed by the defendants would reduce the effective 
head of water created by the dam of complainants to 
any extent or at all, or in any way lessen or reduce the 
value of the power plant of complainants. 

13. Defendants deny that the permits granted by 
the State Engineer to these defendants are a cloud upon 
the complainant's title to its said property or that they 
have greatly or at all depreciated the value thereof, and 
these defendants allege that they do not now intend, 
and will not at any time interfere with any right of the 
complainant to the use of any water which it has actu- 
ally appropriated and applied to a beneficial use as pro- 
vided by the laws of the State of Idaho, whatever that 
amount may be. 

14. Defendants deny that the diversion of the waters 
of Snake river according to the permits referred to in 
the complainant's bill granted to these defendants by 
the State Engineer and to the amount therein designated 
will in any way interfere with the complainant or cause 
any temporary loss to said complainant, as these defend- 



vs. Alfred A. Fraser and A. R. Crusen. 53 

ants do not intend to in any manner interfere with the 
proprietary right of the complainant to the extent to 
which the said complainant has actually diverted, ap- 
propriated and applied to a beneficial use the waters 
of said stream, nor neither do these defendants intend 
to interfere with or in any embarrass the complain- 
ant in the full and free exercise, acknowledgment and 
use of said rights as they have been acquired by the 
complainant upon said stream. 

15. That as to the allegation in the complainant's bill 
"that there are numerous unoccupied and unappropri- 
ated sites along said Snake river and immediately trib- 
utary thereto, where there is sufficient fall for power 
purposes and which are as accessible and as favorably 
situated as the place where the said power plant of 
your orator is located," these defendants have not suffi- 
cient knowledge, information or belief to answer said 
allegation and they therefore deny the same and leave 
the complainant to make such proof of said facts as it 
is advised is necessary or proper, but allege that these 
defendants did not at any time or at all combine or 
confederate together for the purpose of injuring the 
complainant or to deprive it of the benefits or advan 
tages of any of its rights upon said river, and allege 
the fact to be that the defendants and their predecessors 
in interest in making said location and asking for said 
permit of the said State Engineer, did so in good faith 
and with the purpose and object of securing to these 
defendants rights and privileges that they would be en- 
titled to under and by virtue of said permit and not for 



54 The Trade Dollar Consolidated Min. Co. 

the purpose of in any way interfering with or injuring 
the complainant or its property, and these defendants 
now allege that it is not their purpose or object to tres- 
pass upon any of the vested rights of the complainant 
or in any way injure or embarrass the complainant's 
property, and that whatever plans are matured by the 
defendants will be in recognition of the priority of right 
of the complainant to the amount of water which it has 
actually appropriated and applied to a beneficial use 
upon said stream. 

These defendants, further answering, aver; 

1. That they and their predecessors in interest, in se- 
curing the permits referred to in the complainant's bill, 
and which are relied upon by these defendants for their 
rights and privileges in the premises, acted in good faith 
and with the sole object and purpose of acquiring the 
right to use the unappropriated waters of Snake river 
at said point to the extent of 4,0 | 0'0 | cubic feet and of 
maturing plans for power plant and financing said prop- 
osition so as to conduct said power to Boise City and 
other places for sale for mechanical, lighting and other 
purposes. These defendants aver that so far these de- 
fendants have proceeded no farther than to comply with 
the laws of the State of Idaho with reference to secur- 
ing said permits from the State Engineer, which permits 
have been duly and regularly granted; that said defend- 
ants do not purpose or intend to go upon said ground 
of the complainant or attempt to construct said canals 
or in any manner interfere with said premises until they 
have filed their suit in condemnation for a right of way 



ks. Alfred A. Fraser and A. R. Criisen. 55 

for its said canal and the right to use said property, 
which will not be done for some four or five months as 
defendants are now engaged in matters connected with 
said business solely, aside from the work upon the 
ground such as financing said proposition, which mat- 
ters are now well advanced; that in all matters relative 
to defendants' rights they intend to proceed by legal 
methods and in an orderly way and will not in any event 
attempt work upon said ground or attempt to divert said 
water, or to initiate the construction of said canals un- 
til permitted so to do by a Court having jurisdiction 
of matters relative to proceedings in condemnation, and 
will proceed alone in accordance with the laws and stat- 
utes of this State relative to acquiring rights by con- 
demnation; defendants allege that they do not intend 

to trespass upon said premises or in any interfere 

with the complainant's free and uninterrupted use of 
said water until their rights have been determined. 

And these defendants deny all and all manner of un- 
lawful combination and confederacy wherewith they are 
or either of them is, by said bill, charged, without this 
that there is any other matter, cause or thing in said 
complainant's said bill of complaint contained material 
or necessary for these defendants or either of them to 
make answer unto and not herein and hereby well and 
sufficiently answered, confessed, traversed and avoided 
or denied is true to the knowledge and belief of these 
defendants; all which matters and things these defend- 
ants are ready and willing to aver, maintain and prove 
as this Honorable Court shall direct, and humbly pray 



56 The Trade Dollar Consolidated Mm. Co. 

to be hence dismissed with their reasonable costs and 
charges in this behalf most wrongfully sustained. 

ALFRED A. FRASER> 

A. R. CRUZEN, 

Defendants. 
A. A. FRASER and 

W. E. BORAH, 

Solicitors and of Counsel for Defendants, 'Pioneer 
Bldg., Boise, Idaho. 

State of Idaho, 
County of Ada, — ss. 

A. R. Cruzen, being duly sworn, deposes and says that 
he is one of the defendants in the above-entitled action, 
that he has read the above and foregoing answer, knows 
the contents thereof, and that the facts therein stated 
are true of his own knowledge except as to matters 
therein stated to be on information or belief, and as to 
those matters he believes them to be true. 

A. R. CRUZEN. 

Subscribed and sworn to before me this 9th day af 
January, 1905. 

[Seal] JOHN J. BLAKE, 

Notary Public. 

[Endorsed]: No. 245. U. S. Circuit Court, Central 
Division, District of Idaho. The Trade Dollar Con'd 
Mining Co. vs. Alfred A. Fraser and A. R. Crusen. An- 
swer. Filed Jan. 9th, 1905. A. L. Richardson, Clerk. 



vs. Alfred A. Fraser and A. R. Crusen. 57 



In the Circuit Court of the United States, in and for the 
Central Division of the District of Idaho. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 

vs. 

ALFRED A. FRASER and A. Ri. 
CRUZEN, 

Defendants. 

Replication. 

The replication of the above-named plaintiff to the an- 
swer of the above-named defendants. 

This replicant, saving and reserving to itself all and 
all manner of advantage of exception which may be 
had and taken to the manifold errors, uncertainties, and 
insufficiencies of the answer of said defendants, for rep- 
lication thereunto saith that it does and will ever main- 
tain and prove its said bill to be true, certain, and suffi- 
cient in the law to be answered unto by said defend- 
ants, and that the answer of said defendants is very 
uncertain, evasive and insufficient in the law to be re- 
plied unto by this replicant; without that, that any other 
matter or thing in the said answer contained material 
or effectual in the law to be replied unto, confessed, or 
avoided, traversed or denied is true; all which matters 
and things this replicant is ready to aver, maintain and 



58 The Trade Dollar Consolidated Mm. Co. 

prove as this Honorable Court shall direct, and humbly 
as in and by its said bill it has already prayed. 

JOHNSON & JOHNSON, and 

J. F. NUGENT, 

Solicitors for Complainant. 

Service of a copy of the foregoing replication is hereby 
accepted this twelfth day of January, 1905. 

W. E. BORAH, 
Solicitors for Defendants. 

[Endorsed]: No. 245. In the Circuit Court of the 
United States, Central Division, District of Idaho. The 
Trade Dollar Consolidated Mining Co., a Corporation, 
Complainant, vs. Alfred A. Fraser and A. R, Crusen, 
Defendants. Replication. Filed Jan. 12, 1905. A. L. 
Richardson, Clerk. Johnson & Johnson and A. F. Nu- 
gent, Solicitors and of Counsel for Complainant. 



At a stated term of the Circuit Court of the United 
States, for the District of Idaho, held at Boise, 
Idaho, on Wednesday, the 11th day of January, 1905. 
Present: Honorable J AS. H. BE ATT Y, Judge. 

THE TRADE DOLLAR CONSOLI- \ 
DATED MINING COMPANY 

\ vs. I No. 245. 

ALFRED A. FRASER and A. R 
CRUSEN. 

Order Refusing Injunction. 
On this day was announced the decision of the Court 
upon complainant's motion for a preliminary or pro- 



vs. Alfred A. Fraser and A. R. Crusen. 59 

visional injunction, to be isued herein, heretofore argued 
and submitted. Ordered that said motion be denied, 
and the application for injunction is hereby refused. 



In the Circuit Court of the United States, in and for tlie 
District of Idaho, Central Division. 

THE TRADE DOLLAR CONSOLI-, 
DATED MINING COMPANY (a Cor- J 
poration), / 

Complainant,; 
vs. 

ALFRED A. FRASER and A. R.I 

CRUSEN, 

Defendants. 

Stipulation as to Taking Testimony. 

It is hereby stipulated in the above-entitled cause, as 
follows: 

I. The testimony in said cause shall be taken orally 
before special examiners, and shall be taken down by a 
stenographer to be selected by the several examiners 
and afterwards reduced to typewriting. 

II. That A. L. Richardson is to be appointed special 
examiner to take testimony at Boise City and vicinity, 
J. G. Bily, notary public, is to be appointed special ex- 
aminer to take testimony at Pittsburg, Pennsylvania and 
vicinity, and if testimony is required to be taken in 
other places, such other special examiners shall be ap- 
pointed as may be necessary. 



60 The Trade DolUr Consolidated Mm. Co. 

III. Formal notice of the taking of the testimony is 
hereby waived, and shall be at such times within the 
period required by the Equity Rules for the taking of 
the same, and at such places as may be hereafter ar- 
ranged to suit the convenience of the solicitors of the 
parties. 

Dated at Boise City, Idaho, this 4th day of February, 
1905. 

JOHNSON & JOHNSON, 
Solicitors for Complainant. 

W. E. BORAH, 

Solicitor for Defendants. 

[Endorsed] : No. 245, United States Circuit Court, 
District of Idaho, Central Division. The Trade Dollar 
Consolidated Mining Co., Complainant, vs. Alfred A. 
Fraser and Alonzo R. Crusen, Defendants. Stipulation. 
Dated Feb. 4, 1905. Filed Feb. 5, 1905. A. L. Richard- 
son, Clerk. 



vs. Alfred A. Fraser and A. R. Crusen. (51 

At a stated term of the Circuit Court of the United 
States for the District of Idaho, held at Boise, 
Idaho, on Monday, the 13th day of March, 1905. 
Present: Honorable J AS'. H. BE ATT Y, Judge. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY j 

vs. \ No. 245. 

ALFRED A. FRASER and A. R. 
CRUSEN. 

Order for Leave to File Amended Answer. 
Upon application of counsel for defendants, ordered 
that said defendants be given until Friday the 17th inst. 
to file and serve an amended answer herein. 



No. 245. 



In the Circuit Court of the United States, Ninth Circuit, 
District of Idaho, Central Division. 

IN EQUITY. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COM3PANY (a Cor- 
poration), 

Complainant, 

vs. 

ALFRED A. FRASER and A. R, 
CRUSON, 

Defendants. 

Amended Answer. 
Answer of the defendants, Alfred A. Fraser and A. R. 
Cruson, to the bill of complaint of the Trade Dollar 
Consolidated Mining Company, complainant. 



62 The Trade Dollar Consolidated Min. Co. 

These defendants, Alfred A. Fraser and A. R, Cruson, 
now and at all times saving and reserving unto them- 
selves all benefit and advantage of exception which can 
or may be had or taken to the many errors, uncertain- 
ties and other imperfections in the said bill of com- 
plaint contained, for answer thereunto or unto such or 
such part thereof as these defendants are advised is or 
are material or necessary for them or either of them to 
make answer unto, say as follows: 

1. Defendants deny that the complainant corporation 
was organized as a corporation under the laws of the 
State of Kentucky or any other State for the purpose of 
engaging in any other business than that of mining and 
milling ores in Owyhee County, Idaho; and defendants 
allege the fact to be, that neither the charter nor the 
articles of incorporation of complainant company au- 
thorizes said corporation to engage in the business of 
generating electrical power, or to engage in the busi- 
ness of selling to the general public or to anyone, elec- 
trical power for mining, transportation, irrigation, light- 
ing, or any other use; and defendants allege that, under 
the articles of incorporation of said complainant com- 
pany, said corporation has no power or authority to ap- 
propriate or acquire by purchase the right to use public 
waters of the State of Idaho for any such purpose. 

2. That as to the allegation in said complainant's bill 
to the effect "that on the 17th day of January, 1900, 
Joseph Hutchinson of Silver City, in said county of 
Owyhee, by his notice of location of water right and 
dam-site duly appropriated and claimed the right to use 



vs. Alfred A. Fraser and A. R. Crusen. 63 

10,000 cubic feet per second of the waters of Shake river, 
Idaho, to be diverted from said river at a point about 
ten miles up said river from the town of Guffey in said 
county of Owyhee," these defendants admit that upon 
said date said Joseph H. Hutchinson posted his notice 
as stated in said bill of complaint at the point desig- 
nated, claiming the right by the terms of said notice 
to the use of 10,000 cubic feet per second of the waters 
of Snake river, but upon information and belief allege 
the fact to be that neither said Joseph H. Hutchinson 
nor his successor in interest, the complainant, has ever 
appropriated, diverted or applied to a beneficial use the 
waters of said Snake river so claimed under said no- 
tice to any amount in excess of 1,000 cubic feet per sec- 
ond, and that the complainant has never acquired and 
does not now own and is not entitled to divert, appro- 
priate or use the waters of Snake river to exceed 1,000 
cubic feet per second, by reason of the failure of said 
complainant and its predecessors in interest to divert 
and apply said waters to a beneficial use within a rea- 
sonable time after the posting of said notice. 

3. That as to the allegation in complainant's bill 
to the effect "that on the 4th day of May, 1900, the said 
Joseph H. Hutchinson posted at or near said point of 
diversion an amended or supplemental notice claiming 
and appropriating said 10,000 cubic feet of said waters 
of Snake river," these defendants admit that said notice 
was so posted as stated in said complaint, but upon 
information and belief, allege the fact to be that neither 
said Joseph H. Hutchinson nor his successor in inter- 



64 The Trade Dollar Consolidated Min. Co. 

est, this complainant, has ever diverted, appropriated 
or applied to a beneficial use the waters of Snake river 
in any amount to exceed 1,000 cubic feet per second, 
and that the complainant is not now the owner and is 
not entitled to appropriate, divert or use the waters of 
Snake river in any amount in excess of 1,000 cubic feet 
per second, by reason of the failure of said complain- 
ant and its predecessors in interest to divert and ap- 
ply said waters to a beneficial use within a reasonable 
time after posting said notice. 

4. That as to the allegation in the complainant's 
bill "that in the month of July, 1900, the complainant 
commenced the construction of a dam at said point of 
diversion known as Swan Falls for the purpose of di- 
verting said 10,000 cubic feet per second of the waters 
of said river, and placing the same to a beneficial use 
for which the same is appropriated as aforesaid," these 
defendants allege that they have no knowledge, in- 
formation or belief as to what were the object and pur- 
poses at the time of the commencement of the con- 
struction of said dam as to appropriating said 10,000 
cubic feet per second of the waters of said river and 
placing the same to the beneficial uses to which they 
were appropriated, and cannot set forth as to their be- 
lief or otherwise, and therefore leave the complainant 
to make such proof of said facts as it may be advised 
is necessary and proper, but allege the fact to be, that 
whatever the purposes at the time of the commence- 
ment of the construction of said dam were, they have 
never at any time actually appropriated or diverted or 



vs. Alfred A. Fraser and A. R. Crusen. 65 

applied to a beneficial use the waters of said Snake 
river to any extent in excess of 1,000 cubic feet per sec- 
ond, and deny that the complainant has been continu- 
ously, or at all engaged since July, 1900, in prosecuting 
its work, and in making valuaible improvements, but 
upon information and belief, allege the fact to be that, 
for more than four years the said complainant has made 
no effort to appropriate any amount of the waters of 
Snake river in excess of 1,000 cubic feet per second. 

5. That the defendants have no knowledge, informa- 
tion or belief sufficient to enable them to answer the 
allegation to the effect "that up to the present time, 
your orator has completed ready for use six of the pro- 
posed wheel bays, and has already installed and is 
operating in four of them water-wheels for generating 
electrical power," and therefore deny said allegation, 
and leave the complainant to make such proof of said 
facts as it may be advised is necessary or proper. 
Deny that the complainant is now generating or has 
been at any time generating electrical power to the 
capacity of 3,600 H. P., or any greater amount of elec- 
trical power than 1,200 H. P. and deny that the com- 
plainant is now, or has at any time been, utilizing or 
requiring 2,150 cubic feet per second of said waters of 
Snake river, or any amount in excess of 1,000 cubic feet 
per second of said water. 

6. Defendants, upon information and belief deny 
that, since the alleged acquisition of said water rights 
as set forth in the complaint, or at any time other than 
as in this answer specifically admitted, the complainant 



66 The Trade Dollar Consolidated Min. Co. 

has been diligently or at all engaged in the employ- 
ment of engineers at great or any expense to make in- 
vestigations or prepare plans, specifications or esti- 
mates for the purpose of selling additional electrical 
power which would or could be generated in the power 
plant of the complainant so completed, or to supply or 
sell the same to various cities or towns in the counties 
of Ada, Canyon, Elmore or elsewhere, or for the pur- 
pose of using said electrical power to pump water for 
the irrigation of large or any tracts of land in said 
counties, but upon information and belief allege the 
fact to be that said plaintiff has not at any time used 
or attempted to use or made any preparation, effort or 
plan to use any amount of the waters of Snake river in 
excess of 1,000 cubic feet per second as aforesaid, and 
has made no effort, plan or arrangement to supply 
electrical power to any of the cities of Ada, Canyon, or 
Ellmore counties or elsewhere, except the towns and 
mines in Owyhee County, as set forth in the complaint. 
Deny that the plaintiff is now or has been at any time 
proceeding with due diligence to carry out or complete 
original plans to appropriate said 10,000 cubic feet per 
second, and deny that the complainant will at any 
time, require or be able to make use of the entire 10,000 
cubic feet, claimed in its notice of appropriation or any 
amount in excess of 1,000 cubic feet, and upon informa- 
tion and belief, allege the fact to be that, its present 
plant as constructed and completed does not require 
and will not require to exceed 1,000 cubic feet per sec- 



vs. Alfred A. Fraser and A. R. Crusen. 67 

ond, and that the complainant has no plans and ar- 
rangements, and has made no effort to make use of 
any greater amount of the waters of Snake river. 

7. Defendants have no knowledge, information or 
belief to enable them to answer the allegation that 
from August to November of each year the quantity of 
water flowing in Snake river at Swan Falls is about 
6,500 cubic feet per second, and they therefore deny said 
allegation and leave the complainant to make such proof 
of said facts as it may be advised is necessary or 
proper; defendants have no knowledge, information or 
belief to enable them to answer the allegations that, 
the irrigation works, known as the Twin Falls Irriga- 
tion Works, when completed will take from said river 
by means of a canal about 3,400 cubic feet per second 
of the waters of said Snake river, and that after said 
diversion, the amount of water in said river at low 
water stage will be about 4,500' cubic feet per second, 
and they therefore deny said allegations and each of 
them, and leave the complainant to make such proof of 
said facts as it may be advised is necessary and proper. 

8. Defendants deny that the complainant is the 
owner by purchase, appropriation or otherwise, or for 
any purpose at all, of the waters flowing in Snake river 
at low-water stage thereof, or is the owner of any 
greater amount of the waters flowing in said river than 
1,000 cubic feet per second; admit that the complainant 
is entitled to the full, free and uninterrupted use of 
its appropriation, and to the full, free and uninterrupt- 
rupted use of all waters which it has applied to a benefl- 



68 The Trade Dollar Consolidated Min. Co. 

dal use, in the operation of its mines only, but upon in- 
formation and belief, allege the fact to be that it has 
neither appropriated nor applied to beneficial use any 
amount in excess of 1,000 cubic feet per second, and 
further allege that no greater amount than 1,000 cubic 
feet per second is necessary for the operation of the 
power plant of the said complainant. 

9. Defendants admit the allegations found upon 
pages 7 and 8, and down to the words "exhibit B" on 
page 9 of the complainant's bill, but allege the fact to 
be that the said defendants do not threaten or purpose 
or intend at any time to commence the construction of 
any ditches or canals as indicated by its maps or plans 
or otherwise for the purpose of diverting the 4,000 cubic 

feet per second other as hereinafter in the further 

answer of the defendants fully and specifically set 
forth, and further allege that the defendants do not 
purpose or intend at any time to claim any of the 
waters which have been actually appropriated and ap- 
plied to a beneficial use by the complainant or its pred- 
ecessor in interest, and that while the defendants al- 
lege according to their information and belief that the 
complainant has not appropriated or applied to a bene- 
ficial use to exceed 1,000 cubic feet per second, never- 
theless, should it be shown to the Court that the com- 
plainant has appropriated an amount in excess of that, 
the defendants allege that it is not their intention or 
purpose to claim the right to use or interfere with the 
use of any of the waters which have actually 'been ap- 
propriated and applied to a beneficial use under the 



vs. Alfred A. Fraser and A. R. Crusen. 69 

laws of the State of Idaho by the complainant, and that 
it claims its right to the waters of Snake river in so 
far as it makes its claim by at all times acknowledging 
the priority to the right and use of said water by the 
complainant to the extent of the complainant's actual 
appropriation and use. 

10. As to the allegation in the complanant's bill 
"that the proposed canal of defendants on the Owyhee 
County side of said river is to approach within 35 feet 
of the west end of said dam, and the proposed canal on 
the Ada County side within 100 feet of the east end 
of said dam," these defendants aver that the exact 
location of the defendants' lines of canal and the exact 
distance from the end of the complainant's dam has 
not yet been definitely determined, but these defendants 
will, when they take up the matter of condemnation 
for right of way for said lines of canal, employ experi- 
enced and expert engineers to locate said canal lines, 
and will proceed with due care and caution so as to 
avoid injury or embarrassment to the complainant's 
dam or rights, and allege from present information that 
it is entirely practicable for the defendants to so con- 
struct their said canals as to in no way interfere with 
complainant's dam or injure the same. Deny that the 
land through and across which it is proposed to con- 
struct said canals is of great or any necessity to com- 
plainant for the operation of its power plant, or that 
it will become necessary by reason of the completion 
of its plants, if the same are ever completed, and de- 
fendants do not admit that they will be. Deny that 



70 The Trade Dollar Consolidated Min. Co. 

the canals proposed by the defendants cannot be built 
without injuring the existence of the complainant's 
dam or power plant, or threatening 1 the destruction of 
the same, but allege that the same can be constructed 
so as not in any way to interfere, embarrass, threaten 
or injure the complainant's dam or power plant, or 
threaten the destruction of the same. 

11. That the defendants have no knowledge, in- 
formation or belief sufficient to enable them to answer 
the allegations upon page 10' of the complainants' bill 
relative to the manner in which said complainant's dam 
is constructed, or as to the work which was necessary 
in the construction of the same, and leave the complain- 
ant to make such proof of the matter as it may be ad- 
vised is necessary and proper. But defendants allege 
particularly as to the Ada County side, that there is 
a large hill or mountain existing or situated between 
the end of the complainant's dam and the line of canal, 
and that in no way could the construction of said canal 
of the defendants injure or interfere in any manner or 
at all with the safety or use of the complainant's dam, 
or its power plant. Deny that the defendants' canal 
would completely or at all isolate the complainant from 
its dam, or from material upon which the complainant 
relies for protection to its dam. Deny that the seepage 
from the canals of the defendants or either of them 
would saturate it or weaken the bonds between the 
ends of the complainant's dam, and the hillside to which 
they are joined, or would at any time or at all make 
it probable that the said dam would give way, or would 
cause the destruction of said dam. 






vs. Alfred A. Fraser and A. R. Crusen. 71 

12. Deny that the use of the water to the extent 
claimed by the defendants would at any time, or at all, 
interfere with or deprive the complainant of the use 
of any water owned or appropriated by it at any time, 
or at all, or would compel the shutting down of the 
power plant of the complainant, or prevent its comple- 
tion as it is alleged said completion is contemplated. 
Deny that the appropriation, diversion or use of the 
water claimed by the defendants would reduce the ef- 
fective head of water created by the dam of the com- 
plainant's to any extent, or at all, in any way lessen or 
reduce the value of the power plant of complainant. 

13. Defendants deny that the permits granted by 
the State Engineer to these defendants are a cloud 
upon the complainant's title to its said property, or that 
they have greatly, or at all, depreciated the value 
thereof, and these defendants allege that they do not 
now intend and will not at any time interfere with any 
right of the complainant to the use of any water which 
it has actually appropriated and applied to a beneficial 
use as provided by the laws of the State of Idaho, what- 
ever that amount may be. 

14. Defendants deny that the diversion of the waters 
of Snake river, according to the permits referred to in 
the complainant's bill granted to these defendants by 
the State Engineer, and to the amount therein desig- 
nated will, in any way, interfere with the complainant, 
or cause any temporary loss to said complainant as 
these defendants do not intend to in any manner in- 
terfere with the proprietary right of the complainant to 



72 The Trade Dollar Consolidated Min. Co. 

the extent to which said complainant has actually di- 
verted, appropriated and applied to a beneficial use the 
waters of said stream, nor neither do these defendants 
intend to interfere with, or in any way embarrass the 
complainant in the full and free exercise, acknowledg- 
ment and use of said rights as they have been acquired 
by the complainant upon said stream. 

15. That as to the allegation in the complainant's 
(bill "that there are numerous unoccupied and unappro- 
priated sites along said Snake river, and immediately 
tributary thereto where there is sufficient fall for power 
purposes, and which are as accessible and as favorably 
situated as the place where the said power plant of 
your orator is located/' these defendants have not suffi- 
cient knowledge, information or belief to enable them 
to answer said allegation, and they therefore deny the 
same, and leave the complainant to make such proof of 
said facts as it is advised is necessary or proper, but 
allege that these defendants did not at any time, or at 
all, combine or confederate together for the purpose of 
injuring the complainant, or to deprive it of the benefits 
or advantages of any of its rights upon said river, and 
allege the fact to be that the defendants and their 
predecessors in interest in making said location and 
asking for said permit of the said State Engineer, did 
so in good faith and with the purpose and object of se- 
curing to these defendants rights and privileges that 
they would be entitled to, under and by virtue of said 
permit, and not for the purpose of in any way interfer- 
ing with or injuring the complainant or its property, 



vs. Alfred A. Fraser and A. R. Crusen. 73 

and these defendants now allege that it is not their 
purpose or object to trespass upon any of the vested 
rights of the complainant, or in any way injure or em- 
barrass the complainant's property, and that whatever 
plans are matured by the defendants will be in recog- 
nition of the priority of right of the complainant to the 
amount of water which it has actually appropriated and 
applied to a beneficial use upon said stream. 

Defendants further answering, aver: 

1st. That the purposes and object for which said 
complainant corporation was organized as set forth in 
paragraph four in their articles of incorporation is as 
follows, and not otherwise: 

"Fourth. The general nature of the business pro- 
posed to be carried on, in the mining of gold and silver 
bearing rocks, ores and deposits and other metallic 
rocks, ores and deposits of every kind and description, 
and the extraction of gold, silver and other metals there- 
from by milling and other processes and the vending in 
the market of the products so obtained, and the doing 
of all other business necessarily and advantageously 
connected with all of the above." 

2d. That they and their predecessors in interest in 
securing the permits referred to in the complainant's 
bill and which are relied upon by these defendants for 
their rights and privileges in the premises acted in good 
faith, and with the sole object and purpose of acquiring 
the right to use the unappropriated waters of Snake 
river at said point to that extent of 4,000 cubic feet, and 
of maturing plans for power plant and financing said 



74 The Trade Dollar Consolidated Min. Co. 

proposition so as to conduct said power to Boise City, 
and other places for sale for mechanical, lighting and 
other purposes. These defendants aver that so far 
these defendants have proceeded no farther than to 
comply with the laws of the State of Idaho with ref- 
erence to securing said permits from the State En- 
gineer, which permits have been duly and regularly 
granted; that said defendants do not purpose or intend 
to go upon said ground of the complainant or attempt 
to construct said canals or in any manner interfere with 
said premises until they have filed their suit in con- 
demnation for a right of way for its canal, and the right 
to use said property which will not be done for some 
four or five months as defendants are now engaged in 
matters connected with said business solely aside from 
the work upon the ground such as financing said propo- 
sition, which matters are now well advanced; that in 
all matters relative to defendants' rights they intend 
to proceed by legal methods and in an orderly way, and 
will not in any event attempt work upon said ground or 
attempt to divert said water, or to initiate the construc- 
tion of said canals until permitted so to do by a Court 
having jurisdiction of matters relative to proceedings 
in condemnation, and will proceed alone in accordance 
with the laws and statutes of this State relative to ac- 
quiring rights by condemnation; defendants allege that 
they do not intend to trespass upon said premises, or in 
any way interfere with the complainant's free and unin- 
terrupted use of said water until their rights have been 
determined. 



vs. AHfred A. Fraser and A. R. Crnsen. 75 

And these defendants deny all and all manner of un- 
lawful combination and confederacy wherewith they 
are, or either of them is, by said bill charged, without 
this that there is any other matter, cause or thing in 
said complainant's said bill of complaint contained ma- 
terial or necessary for these defendants, or either of 
them to make answer unto, and not herein and hereby 
well and sufficiently answered, confessed, traversed and 
avoided or denied is true to the knowledge and belief 
of these defendants; all which matters and things these 
defendants are ready and willing to aver, maintain and 
prove as this Honorable Court shall direct, and humbly 
pray to be hence dismissed with their reasonable costs 
and charges in this behalf most wrongfully sustained. 

ALFRED A. FRASER, 
A. R. CR-UZEN, 

Defendants. 
W. EL BORAH and 
ALFRED A, FRASER, 

Solicitors of Counsel for Defendants. 

State of Idaho, \ i 

County of Ada, — ss. 

Alfred A. Fraser, being duly sworn, deposes and 
says: That he is one of the defendants in the above-en- 
titled action; that he has read the above and foregoing 
answer, knows the contents thereof, and that the same 
is true of his own knowledge, except as to those matters 
therein stated to be on information and belief, and as 
to those matters he believes them to be true. 

ALFRED A. FRASER. 



76 The Trade Dollar Consolidated Min. Co. 

Subscribed and sworn to before me this 17th day of 
March, 1905. 

A. L. RICHARDSON, 

Clerk. 

[Endorsed] : No. 245. In the Circuit Cburt of the U. 
S. Central Division of the District of Idaho. The Trade 
Dollar Consolidated Mining Co. vs. Alfred A. Fraser and 
A. R. Cruzen. Amended Answer. Filed March 17th, 
1905. A. L. Richardson, Clerk. W. El Borah and A. A. 
Fraser, Attys. for Defendants. 



t 

In the Circuit Court of the United States, District of Idaho, 
Central Division. 

THEi TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 

vs. 

ALFRED A. FRASER and A. R. 
CRUZEN, 

Respondents. 

Testimony. 

Depositions taken on behalf of the complainant for 
final hearing in the above-entitled court, at the city of 
Boise in the State of Idaho, commencing on the fourth 
day of May, A. D. 1905, in pursuance of stipulation and 
agreement of counsel and notice to counsel in accord- 
ance therewith, at the office of Johnson & Johnson, in 
Boise City, Idaho, A. L. Richardson, clerk of the United 



vs. Alfred A. Fraser and A. R. Crusen. 77 

States Circuit Court, acting as Special Examiner herein, 
pursuant to said stipulation and agreement of Counsel. 
Present: John F. Nugent, Esq., and R. H. Johnson, 
E*sq., of counsel for complainant and Alfred A. Fraser, 
Esq., of counsel for respondents; and thereupon the 
following proceedings were had: 

ANDREW J. WILEY, a witness produced on behalf 
of the complainant, being first duly sworn testified as 

follows: 

Direct Examination. 

(By BL H. JOHNSON.) 

Q. State your name age, residence and occupation, 
Mr. Wiley. 

A. Andrew J. Wiley, residing in Boise City, Idaho; 
42 years of age; civil engineer. 

Q. How long have you been praetcing your pro- 
fession? A. About twenty years. 

fQ. Since that time have you been devoting your at- 
tention to any particular branch of your profession, and, 
if so, what branch or branches? 

A. Principally hydraulic engineering. 

jQ. State your experience and in connection with 
what works. 

A. I have been Assistant Engineer in the United 
States Geological Survey; Chief Assistant Engineer of 
the Idaho Mining and Irrigation Company in the con- 
struction of the original New York canal; Chief En- 
gineer of the Owyhee Land and Irrigation Company, 
in the construction of the Bruneau Dam and Canal; 



78 The Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

Chief Engineer of the Trade Dollar Consolidated Min- 
ing? Cbmpany in the construction of the Dam and Power 
Plant at Swan Falls; Chief Engineer of the Boise-Pay- 
ette River Power Company; Chief Engineer for the city 
of Cheyenne, Wyoming, in the construction of the Chey- 
enne Dam; Consulting Engineer of the United States 
Geological Survey and Reclamation Service and Chief 
Engineer of the Barber Lumber Company in the con- 
struction of their Dam and Power Plant. 

Q. Are you a member of the American Society of 
Civil Engineers? A. I am. 

Q. State your first connection with the Power Plant 
of the Trade Dollar Consolidated Mining Company on 
Snake river, Idaho. 

A. In the latter part of April, 1900, I was employed 
(by the Trade Dollar Consolidated Mining Company to 
act as Chief Engineer in the construction of the Swan 
Falls Power Plant. 

Q. Had any actual construction work been done 
prior to that time? A. It had not. 

Q. You may briefly describe the conditions existing 
at the site of the power plant at the time of your first 
connection with it, in April, 1900. 

A. At that time I found that the river was crossed 
by a reef of lava rock, which formed an island in the 
center, dividing the river into two channels, each about 
450 feet wide. The reef had prevented the erosion of 
the river bed to a uniform grade, and caused a fall at 






vs. Alfred A. Fraser and A. R. Crusen. 79 

(Testimony of Andrew J. Wiley.) 

this point of 4 feet in about 200 feet at the low-water 
stage. But this fall was obliterated in high water. 

Q. Are you closely acquainted with all the details of 
the construction of the dam and power plant in ques- 
tion? 

A. I am. I gave my entire attention to the work 
from its first inception to the time of its completion, 
and superintended every step of the construction. 

Q. What position did you occupy with reference to 
it? A. I was Chief Engineer. 

Q. You may briefly describe the salient features of 
the plant, including the method of its construction. 

A. The power is developed by a dam raising the level 
of the river so that an effective head of 19 feet is ob- 
tained at low water. The south channel is closed by a 
timber crib dam, which acts as a weir in discharging the 
surplus water of the river. The north end of the crib dam 
is joined by a masonry abutment to the south end of the 
island; at the south end of the dam the lava reef did not 
rise above the level of the river bed, and was overlaid 
by a deposit of earth and boulders, rising on a steep slope 
from the river's edge to a height of 100 feet. The timber 
crib dam is connected with this bank by means of a 
masonry abutment, which is puddled into the unstable 
material of which the south bank is composed. The 
river is 424 feet long between vertical abutments, and 
at the times of flood the water passes ten feet in depth 
over its crest. The north channel is devoted entirely to 



80 The Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

the development of power, the power-house being lo- 
cated near the island said of the channel. 

Q. Describe this power-house that you have referred 
to. 

A. The power-house is constructed in the most ap- 
proved manner and of the most permanent material. 
The entire building is founded on solid rock and made 
of concrete masonry. The floors are made of steel and 
bedded in concrete, and the roof is of steel covered with 
slate; the extreme height from the foundation to top 
of roof is about 80 feet, the length is 134 feet and the 
width is 50 feet. The lower story of the power-house is 
divided into two parts, the pen stocks and the tail-race, 
by a concrete wall five feet thick running the entire 
length of the building; this wall is the downstream side 
of the pen stocks and is supported against the water 
pressure by buttress walls of the same thickness placed 
22 feet between centers. 

Q 1 . Describe those walls. 

A. This wall is extended each way, from the power- 
house to the rocky island on the south and to the shore 
of the river at the north end, and is throughout of con- 
crete masonry of the same dimensions and of the same 
buttresses as in the power-house section. This con- 
struction was so planned that the whole of the north 
channel could be utilized for water-wheels of the same 
type as those used in the first installment of power. 

Q. What machinery does the power-house contain 
and what power is developed? 



vs. Alfred A. Fraser and A. R. Crusen. 81 

(Testimony of Andrew J. Wiley.) 

A. The power-house contains four water-wheels, 
each 72 inches in diameter, with a capacity for develop- 
ing 900 horse-power at the low-water stage of the river, 
when the head on the wheels is the greatest, at which 
time each wheel discharges 538 cubic feet of water per 
second. Spaces have ibeen provided, by the construction, 
in the north channel, for the installation of ten addi- 
tional water-wheels, making a total of 14 wheels. 

Q. In what manner is the space arranged for the ac- 
commodation of the additional wheels? 

A. The present power-house contains six bays or 
spaces for water-wheels, all being of exactly similar di- 
mensions and construction, except that the bays where 
water-wheels have not been installed the floors have been 
omitted. Between the present power-house and the north 
bank of the river the buttress wall which forms the 
downstream side of the water-wheel bays is constructed 
in exactly the same dimensions in all respects, with the 
same spacing of buttresses, so that in order to install 
the eight additional units it is only necessary to build 
partition walls at right angles to the main wall on the 
upstream side, each 24 feet long and connected by the 
floor which supports the water-wheels. The upper 
portion of the power-house would then be built as an 
extension of the present power-house. 

Q. Have you examined the map or plan attached to 
the application of defendants for permit to divert 
water from Snake river, copies of which are attached to 
the complaint? A. I have. 



82 The Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

Q. What effect, in your judgment would such a diver- 
sion have upon the dam and power development of the 
complainant? 

By Mr. FRAjSEGR, — We object to that question as call- 
ing for a conclusion of the witness. 

A. The construction of a canal around the south end 
of the dam would, in my opinion, result eventually in 
its destruction. 

Q. State your reasons for that conclusion. 

A. At this end of the dam the bedrock does not rise 
above the level of the old bed of the river, and is overlaid 
by a mixture of boulders and fine earth, to which the 
dam is joined as securely as possible under such condi- 
tions; and the defendants' plans show a very large canal 
in this unstable material, carrying a flow of 5,000 cubic 
feet per second of water around the abutment of the 
dam, so close as to be practically in contact with it. 
Such a canal would be extremely hard to maintain, and 
a break in it would result in rapid erosion and the es- 
tablishment of a new channel for the river around the 
south end of the dam, lowering the water to somewhere 
near its original level. Such a canal would also act as 
an effective barrier to any repairs that it might be nec- 
essary to make to the dam, and in this way also would 
be a constant menace. The dam in the south channel 
is of the rock filled crib type, and is filled and backed 
by material taken from the sidehill adjacent to the south 
abutment, which is the only place where suitable ma- 



vs. Alfred A. Fraser and A. R. Crusni. 83 

(Testimony of Andrew J. Wiley.) 

terial is available. It is necessary to have free access 
to this material in order to maintain the dam, and a 
quarry filled with cars and derrick is maintained here 
for this purpose, and has been used every year since 
the completion of the dam. The construction of the 
proposed canal would prevent the use of this quarry 
and will isolate the dam from all material needed in its 
maintenance. The proposed canal around the north end 
of the dam would be a menace to the safety of the dam, 
though not such a serious one as that around the south 
end, the material in the north shore being of a firmer 
nature, though even here we were not able to make a 
complete junction with the bedrock. The chief objection 
to the canal at this end is the obstacle it would present 
to the operation of the present plant and its prohibition 
of future extensions. The property of the company is 
located in a narrow canyon seven hundred feet below 
the general level of the country; there is barely room 
on the north side of the river for the location of the 
dwellings necessary for the employees of the company 
in the operation of its plant, and a canal with the pro- 
posed capacity of 5,000 cubic feet per second, as shown 
by the defendants' map, would take away practically all 
the available ground in the vicinity of the complainant's 
property; furthermore, the construction of both canals, 
as proposed by the defendants, would leave the property 
of the complainant isolated from the mainland by canals 
which are virtually rivers themselves, and would be a 



84 The, Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

most serious obstacle in the maintenance and operation 
of the plant. 

Q. What other effect would the diversion of the 
amount of water claimed by the defendants, through 
canals at each end of the complainant's dam, have upon 
the present power plant of the complainant? 

A. TJie diversion around the south end of the dam 
would only result in reducing the head acting upon the 
water-wheels by the lowering of the water above the 
dam; but the diversion around the north end, on account 
of the condition of the river below the dam, would re- 
sult in not only reducing the elevation of the water 
above the dam but would raise the elevation of the 
tail-water. The combined effect would reduce the veloc- 
ity of the water-wheels to such an extent as to render 
the entire equipment of water-wheels, gearing and elec- 
tric generators inadequate for the work required, and 
it would be necessary to install a new equipment to meet 
the new conditions. Furthermore, the reduced head 
would require more expensive machinery to produce the 
same results, and would also require the use of a much 
larger volume of water. 

Q. What, in your opinion, has been the effect of the 
defendant's application for a permit to divert the water 
around the complainant's dam, upon the value of the 
complainant's property? 

By Mr. FRASER.— I object to that as immaterial, ir- 
relevant and incompetent. The witness has not shown 



vs. Alfred A. Fraser and A. R. Crusen. 85 

(Testimony of Andrew J. Wiley.) 

himself competent to testify as to that question; and it 
is calling for a conclusion of the witness. 

A. It has, in my judgment, materially decreased the 
value of complainant's property by suggesting a flaw in 
complainant's title, and making it difficult, if not impos- 
sible, to perfect plans for the extension of the plant, 
while there exists a possibility of defendants' right to 
divert any part of the water around the complainant's 
dam. 

Q. During what period were you engaged in the con- 
struction of complainant's dam as a power plant? 

A. From the latter part of April, 1900, to the first 
part of June, 1901, when the work was completed. 

Q. Have you been consulted at any subsequent time 
by the complainant regarding the enlargement of the 
complainant's plant? A. I have. 

Q. State when and under what circumstances. 

A. In the year 1903 I was engaged by the complain- 
ant to make an investigation of the possibilities of re- 
claiming land along Snake river by electric driven 
pumps with power transmitted from the complainant's 
plant. In pursuance of this investigation I had surveys 
made of all the tracts capable of being irrigated by a 
lift of 250 feet or less, and reported favorably upon the 
of water-wheels and generators for 5,000 additional 
irrigation of one tract which involved the installation 
horse-power at the plaintiff's plant and an expenditure 
of over $600,000. 



86 Tlie Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

This report was favorably received by the complain- 
ant and preparations were being made to carry out the 
plans when the tract to be reclaimed was included in a 
larger government project and the plan had to be re- 
linquished. I was then instructed to make an investi- 
gation of the feasibility, from a commercial standpoint, 
of supplying light and power to the towns on the Ore- 
gon Short Line Railroad from Nampa to Weiser. This 
investigation was concluded in 1904 previous to defend- 
ants' application for permit to divert the water at the 
complainant's dam. 

Q. Could the water-power created by complainants 
have been developed at the same site in any other way 
than by the construction of a dam? 

A. It could. It would have been physically possible 
to accomplish the same result by building a canal or 
flume, but the construction of a canal would have been 
more expensive in this case than the dam; in another 
location the canal might have been the cheaper; and the 
comparative cost usually decides which type of con- 
struction shall be adopted. 

Q. If you were building an irrigation canal what 
would you consider the completion of the work as re- 
quired by the statutes? 

By Mr. FEASER. — I object to that as immaterial and 
irrelevant, and calling for a conclusion of the witness 
upon a legal question. 

A. I should consider the works completed when the 



vs. Alfred A. Fraser and A. R. Cruscn, 87 

(Testimony of Andrew J. Wiley.) 

appropriated water had been conveyed to a position 
from which it could be distributed, in easily constructed 
laterals, to the land it was intended to irrigate. 

Q. Would you consider it necessary, in order to com- 
ply with the statutes, that the water, after being con- 
veyed to the place of intended use, should be immedi- 
ately applied to the land? ■ 

A. I should not think so. I should expect the ap- 
plication of the water to a beneficial use, as intended by 
the statute, would be a gradual process; and that, hav- 
ing made the water available for use, a reasonable time 
would be allowed for the application of the water to 
the land. This cannot be effected faster than the set- 
tlement and cultivation of the land, which is usually 
neither owned nor controlled by the builders of the irri- 
gation works, and they would have no power to build 
laterals and distribute water over land which was owned 
by others. 

Q. In the case of the appropriation of water and the 
construction of works for power purposes, when would 
you consider the work completed in the meaning of the 
statute? 

By Mr. FRASER. — Same objection. I object to it as 
immaterial, irrelevant and incompetent and calling for 
the conclusion of the witness on a question of law. 

A. In order to answer that question I shall have to 
make a comparison between the works intended for irri- 
gation and those designed for the creation of power. In 



88 The Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

the former the place of intended nse is more or less re- 
mote from the source of supply and the conducting of 
the waters from the source of supply to the place of 
intended use is the object of the diverting works. In 
the case of works constructed for power purposes the 
sole object of the diverting works is the creation of a 
head or difference of level of some magnitude in the ap- 
propriated water. This head can only be created by 
providing a new channel for the appropriated water with 
less fall than the original channel, either by a canal or 
other conduit entirely separated from the old channel or 
by the construction of a dam in the original channel 
raising the water out of its old bed. In either case the 
river has been diverted from its old channel; in one 
case the new channel having been made at a higher level 
at either side of the old, and in the other case having 
been diverted into a new channel vertically over the 
old one. This would be more apparent if at the time of 
the construction of the dam the bed of the river should 
be filled to the level of its crest with material taken 
from its slopes on either side, thus converting the river 
above the dam into a cana], a result which is accom- 
plished in most cases in a few years' time by the deposits 
of silt made by the river above the dam. If the head 
necessary for the creation of water power is obtained by 
a canal, I should consider the work completed in the 
meaning of the statute when the canal is completed with 
a capacity for conducting the appropriated water to the 
point where the required head was obtained, with proper 



vs. Alfred A. Fraser and A. R. Crusen. 89 

(Testimony of Andrew J. Wiley.) 

facilities provided at this point of intended use for the 
control of the water and for its conversion into me- 
chanical power as fast as it could be applied to a bene- 
ficial use. If the head should be created by a dam, the 
completion of the works would consist in the construc- 
tion of such regulating and controlling works in the 
river as would maintain the channel above the dam and 
would deliver the appropriated water under the neces- 
sary head, proper facilities being provided at the dam 
or place of intended use for its conversion into mechan- 
ical power as fast as it could be applied to a beneficial 
use. 

Q. If the head of water should be created by a dam 
what would the completion of the work consist of? 

A. I think that question is answered in that last 
paragraph. 

Q. Would you consider it necessary to install a suffi- 
cient number of water-wheels to convert the whole of 
the appropriated water into mechanical power? 

A. I should not consider it necessary to install water- 
wheels any faster than it was possible to apply the 
power from them to a beneficial use. 

Q. What would be the objection to the installation 
of the full number of water-wheels at the time of the 
completion of the works? 

A. Water-wheels deteriorate quite rapidly, in many 
streams, from the corrosive action of the water, and if 
the full number of wheels were installed at the time 



90 The Trade Dollar Consolidated Mm. Go. 

(Testimony of Andrew J. Wiley.) 

of the completion of the work, a large part of their life 
would be gone before they were put to work. 

Q. You may state whether or not, as a matter of 
fact, the complainant has actually diverted the 10,000 
cubic feet per second of the waters claimed, according 
to your explanation of diversion as given above? 

A. It has whenever there is that quantity of water in 
the river. 

Q. Is there a time when there is a less quantity in 
the river? 

A. Yes, at low-water stage, which extends from 
about the first of August to the first of April each year. 

Q. You may examine this map and state who made 
that map and what it represents. 

A. It is a map made by myself, illustrating the con- 
struction of the Swan Falls Power Plant, giving all the 
details of construction. 

By Mr. JOHNSON.- -We will offer this map in evi- 
dence, and ask that it be marked Complainant's Exhibit 
"C," Map and Plan of Dam and Power Plant. (So 
marked.) 

Q. Do you know, Mr. Wiley, whether or not there 
are any other available sites on Snake river that are 
equally accessible and available for a dam similar to 
the one constructed by the complainant? 

A. I think so. 

By Mr. FRASEKi. — I object to that as immaterial, 
incompetent and irrelevant. 



vs. Alfred A. Fraser and A. R. Crusen. 91 

(Testimony of Andrew J. Wiley.) 

Q. You may state where they are and what they 
consist of. 

A. There is one that I recollect at a place known as 
the "Cove," about six miles above Walter's Ferry, where 
there is a riffle in the river and apparently bedrock ex- 
tending clear across the river. And there is one above 
the mouth of Sinker creek. 

Q. This place at the Cove: If there was a dam con- 
structed there, would the backwater interfere with the 
complainant's dam? 

A. A dam of the same height would not; of course 
it would if it was built high enough. 

Q. How high would it have to be built? 

A. I should say a dam giving a head of 19 feet would 
not affect complainant's plant. 

Q. What distance below is this site from the com- 
plainant's property? 

A. I should say about 12 miles below. 

Q. About what is the fall of the river between com- 
plainant's dam and the place called the Cove? 

A. I don't know; except the first mile below com- 
plainant's dam there is a fall of nearly four feet in the 
mile, and I have every reason to believe the average 
fall is about the same throughout that section of the 
river. 

Q. Would that site that you have mentioned to be 
closer and more available to towns on the Short Line — 
to Nampa and Boise — and other towns on the Oregon 
Short Line? 



92 The Trade Dollar Consolidated Mm. Co. 

(Testimony of Andrew J. Wiley.) 

A. It would be closer, I think, to all other towns on 
the Snore Line except Boise, and I think it would be 
about the same distance to Boise. 

Q. As to the towns on the Shore Line west of Nampa? 

A. Yes, sir, from Nampa to Weiser west of Nampa. 

Q. Mention any other sites that you may know of? 

A. I think I already mentioned one above the mouth 
of Castle Creek; that is about fifteen miles above the 
complainant's plant where there is apparently bedrock 
extending clear across the river and a favorable site for 
a dam. 

Q. Would the backwater from the complainant's 
dam interfere at that point? 

A. No, sir; the backwater from the complainant's 
dam extends up the river about ten miles only. Then 
there is another place at Crane Falls, which is about 
forty miles above complainant's plant, where a fall could 
be developed without any dam at all, but by a canal of 
cheap construction. 

Q. At the place you mentioned as the Cove, all of 
the water that flows over the dam of complainant would 
reach there without diminution? A. All of it. 

Q. In testifying to these different sites you testify 
from your own knowledge and from visits you have made 
to Snake river? A. Yes, sir. 

<Q. What was the first proposed plan of the company 
with reference to this dam on the Ada County side from 
the power-house to the shore of the river? 



vs. Alfred A. Fraser and A. R. Crusen. 93 

(Testimony of Andrew J. Wiley.) 

A. I submitted a plan to the company in April of 
the year 1900, before this work was started, which called 
for the same construction in the left channel, but in 
the right channel I proposed to put a power-house, about 
the size of the present power-house, in the north end 
and to fill the rest of the channel with a loose rock dam. 
This plan was rejected by the company because in order 
to put any more water-wheels in to extend our power- 
house, we would have to tear out the rock fill. 

Q. It was their purpose, then, in constructing* the 
dam in this manner, to, at an additional expenditure, 
enlarge the dam from time to time? 

A. Certainly. 

Cross-examination. 

(By Mr. FKASEK.) 

Q. There are probably a hundred sites on the Snake 
river where a dam could be built with sufficient money? 

A. Yes, sir. 

Q. It is a question of means? A. Yes, sir. 

Q. There are many places that you know of on Snake 
river that you could build a dam with sufficient funds? 

A. Yes, sir. 

Q. Had you a knowledge of this Cove at the time 
you selected the present site? 

A. I did not select it. 

Q. It is a more convenient site with the island in the 
center of the river, is it not? 

A. I think so; yes, sir. 



94 The Trade Dollar Consolidated Mm. Co. 

(Testimony of Andrew J. Wiley.) 

'Q. You don't know of your own knowledge whether a 
water-right has been located at Crane Falls for a water 
power by other parties, do you? 

A. I am under the impression that it has. 

Q. Then it would not be possible for the defendants 
in this case to go in and locate? You think it is located 
already? A. Yes, sir. 

Q. You say they have diverted the 10,000 cubic feet 
which was appropriated by the predecessors in interest 
of this company? When you speak of "diverted/' you 
mean the water is running through the wheels or run- 
ning over the dam? 

A. I mean it has been raised out of its old channel. 

Q. You mean all the water that flows down the Snake 
river either goes through the wheels or over the dam 
of the complainant company? A. Yes, sir. 

Q. On the Ada County side of Snake river you have 
noticed the plan which is attached to the application of 
defendants for a permit. You will notice, as shown by 
that plan, it is about 150 feet between the north end — 
out on the Ada County side there is about 150 feet from 
the end of the complainant's dam to the canal, is there 
not? 

A. Well, I couldn't tell the distance; the map is kind 
of rough; I should judge, though, it was quite a little 
distance from that end. 

Q. On the Ada County side there is quite a high rock 
formation, is there not A. Yes. 



vs. Alfred A. Fraser mid A. R. Crusen. 95 

(Testimony of Andrew J. Wiley.) 

Q. Abutting up against the Ada County end of the 
dam? I 

A. Well, there is a rock formation there, but there 
are apparently layers of clay, in seams, through that 
formation, where we couldn't trace the bedrock and get 
a connection with it. 

(Q. That rocky formation would be between the end 
of your dam and any canal built as proposed by the de- 
fendants would it not? 

A. We couldn't get any solid connection there. 

Q. Eight at the point where you joined on? 

A. Yes, sir. 

Q. But as to what the continuation of that formation 
is, you don't know? A. No, sir. 

Q. Wouldn't it be possible to build a canal in such 
a manner, by plank or otherwise, which the water would 
not leak through or interfere with your dam where it 
joins on to the Ada County side? 

A. On the Ada County side I think it might be pos- 
sible to build a canal that would be comparatively safe. 
I couldn't say absolutely safe, because I think it would 
be a menace. 

Q. You think it possible, from an engineering stand- 
point, that it could be done? 

A. Yes, sir; on the Ada County side I think it pos- 
sible it could be done. 

Q. Couldn't a canal be taken out also on the Owyhee 
County side where the water would be taken through a 
pipe that would be safe? 



96 The Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

A. I would not be willing 1 to undertake to put a canal 
around the south end of the dam on the Owyhee County 
side under any conditions. 

Q. Not even through a steel pipe? 

A. No; that is, a canal of any magnitude. 

Q. Suppose we make it a good deal smaller. 'Could 
you take a six-foot iron pipe around there? 
A. I think it possible, yes. 

Q. If you install more wheels in the present power- 
house, would not that have the same effect in lowering 
the water above the dam as it would if taken out by 
this canal? ' 

A. Practically the same; yes, in taking out the same 
amount of water. 

Q. If the discharge from the canal on the Ada County 
side was far enough down the river the backwater would 
not interfere with the wheels of the complainant com- 
pany, would it? 

A. No, sir, not if it was far enough down the river. 

Q. It would be a question of taking it far enough 
down so as to discharge it where that backwater would 
not come up? A. Yes, sir. 

Q. You are the engineer who constructed this plant? 

A. Yes, sir. 

Q. Are you in the employ of the company at the pres- 
ent time? 

A. I am retained as Consulting Engineer by the com- 
pany. 



vs. Alfred A. Fraser and A. R. Crusen. 97 

(Testimony of Andrew J. Wiley.) 

Q. You have prepared this statement which you have 
stated here in anticipation of this evidence you were to 
give to-day? A. Yes, sir. 

Q. How much water is discharged at low water over 
that dam that does not go through the wheels. Have 
you ever made a calculation? 

A. Well, I couldn't say that I have made any accu- 
rate calculation on that point. I could give an estimate 
of what my opinion is about the amount of water that 
flows over there. 

Q. But you never made any measurements? 

A. No, sir. 

Q. How far is it up the river to Crane Falls from the 
dam? 

A. From memory I should say about forty miles. 

Q. What length of canal would it be necessary to 
build to get the same fall which you have and have the 
place of discharge where the dam is at the present time? 

A. It would probably be necessary to build a canal 
about twenty miles long. 

Q. Quite an expensive proposition? 

A. Quite expensive; yes, sir. 

iQ. To get a canal of sufficient size to develop any 
power? A. Yes, sir. 

Redirect Examination. 

(By Mr. JOHNSON.) 

Q. Mr. Wiley, you stated that it might be possible to 
construct such a canal as counsel mentioned on the 



98 The Trade Dollar Consolidated Min. Co. 

(Testimony of Andrew J. Wiley.) 

Ada County side. Did you mean by that that it could 
be done without affecting the head of water? 

A. Oh, no. It would affect the head of water very 
much more disastrously than the canal on the Owyhee 
County side. 

Q. Does the same thing apply to a pipe that would 
be taken around the other side? 

A. It would affect the head of water just the same, 
yes, sir. 

Q. You stated that the discharge from the canal 
might be far enough down the river so as not to back 
the water and interfere with the complainant's plant. 
But, according to the plans and permit of the defend- 
ants, if carried out, would that interfere? 

A. Yes, sir, that would interfere. 

Q. The backwater would interfere? 

A. The backwater would interfere. 

Q. You stated, Mr. Wiley, that it was possible to 
build a canal on the Ada County side. Would you con- 
sider that that was a menace to the dam on account 
of the clay seams that you mentioned? 

A. I would not consider that any serious menace. 
The main objection to the construction of the canal on 
the Ada County side, in my opinion, would be that it 
isolates the plant and prevents future extensions by the 
company, and also reduces the head so materially, and 
causes the water to back up in the narrow channel be- 
low the dam very much more seriously than on the 
Owyhee County side. 



vs. Alfred A. Fraser and A. R> Crusen. 99 

(Testimony of Andrew J. Wiley.) 

Q. In addition to that there might be some danger? 
A. Yes, there would be an element of danger, of 
course. 

(By Mr. FEASER.) 

Q. Mr. Wiley, as an illustration: If a dam is built 
across a river which has a flow of 2,000 cubic feet, and 
there is 1,000 cubic feet of that water used for power 
purposes at the dam, and the other 1,000 feet is flowing 
over the dam, what difference would it make in the oper- 
ation of the power plant if a person would go in and 
divert the 1,000 feet which is flowing over the dam — 
whether he takes it out above the backwater or at the 
dam? In other words, if a canal were run up above the 
backwater and the 1,000 feet turned into that canal, 
and the parties allowed the other 1,000 feet which was 
used to come down the river, or whether they took it 
out after it was in the backwater? 

A. You mean power developed in both places? 

Q. Yes? 

A. The practical results, as far as the power was 
concerned would be the same. 

Q. Because there is just that much water coming, 
anyway? A. Yes, sir. 

(By Mr. JOHNSON.) 

Q. That is on the theory that this water is taken out 
above the backwater? A. Yes. 

Q. How far does the backwater above the dam ex- 
tend? A. Approximately ten miles up the river. 

(Witness excused.) 



100 The Trade Dollar Consolidated Mm. Co. 

By Mr. JOHNSON. — The complainant offers in evi- 
dence certified copy of the water-right location and the 
affidavit of posting by Joseph H. Hutchinson, and re- 
quests that it be marked Complainant's Exhibit "D," 
Plaintiff's Notice of Water Eight Location and Affidavit 
of Posting. 

Complainant also offers in evidence certified copy of 
the location of water right by Joseph H. Hutchinson, 
dated May 19th, 1900, and asks that it be marked Com- 
plainant's Exhibit "Ei," Certified Copy of Location of 
Water Eight. 

Complainant also offers in evidence certified copy of 
the deed from Joseph H. Hutchinson to the Trade Dollar 
Consolidated Mining Company covering this water right 
location, and requests that it be marked Complainant's 
Exhibit "F," Deed from Hutchinson to Complainant. 

By Mr. FEASEB. — Counsel for defendants objects as 
to that one for the reason that the complainant com- 
pany has no right or authority, under its articles of 
incorporation, to buy or purchase any water rights or 
to engage in the business of running an electric power 
plant for the purpose of generating power or electricity 
for sale or rental in the State of Idaho. 

At this time adjournment was taken until 10 o'clock 
A. M., May 5th, 1905, at which time the hearing was re- 
convened and proceedings were resumed as follows: 

By Mr. JOHNSON and Mr. FEASEB.— It is stipu- 
lated between the counsel for the respective parties that 



vs. Alfred A. Fraser and A. R. Crusen. 101 

(Testimony of Frederic Irwin.) 

the reading over of the depositions to the witnesses and 
the signing of the same be and is hereby waived. 

FREDERIC IRWIN, a witness produced and sworn 
on behalf of complainant, testified as follows: 

Direct Examination. 

(By Mr. JOHNSON.) 

Q. State your name, age, residence and occupation. 

A. Forty-five years old; I reside in Dewey, Owyhee 
County, Idaho; mine superintendent or manager. 

Q. How long have you followed the business of min- 
ing? A. Fourteen years. 

Q. What position do you occupy at the present time? 

A. I am general manager of the Trade Dollar Con- 
solidated Mining Company, in this State. 

Q. That is the complainant in this case? 

A. Yes, sir. 

Q. Where are the mines of the complainant situated? 

A. On Florida Mountain, Owyhee County, Idaho, Car- 
son Mining District. 

Q. Are you familiar with the dam and power plant 
of the complainant at Swan Falls? A. I am. 

Q. Describe in a general way this dam and power 
plant, and transmission line. 

A. The dam is constructed on a reef of lava rock 
running from an island practically in the center of the 
channel to each side. The southern or Owyhee wing of 
this dam is a rock built crib, the piers at each end being 



102 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frederic Irwin.) 

of concrete, and concrete extending for probably 20 or 
30 feet south of the south pier and north of the north 
pier. On the north side of the dam is a concrete wall 
five feet thick, backed up with buttresses approximately 
over 20 feet, and on the south end of this concrete dam 
the power plant is situated; and in this power plant 
there are six wheel bays, and the second story has the 
electrical machinery and transformers and switches and 
controlling devices; and in four of the wheel bays water- 
wheels are at present installed. The transmission line 
is approximately 28 miles to Dewey; from there it runs 
between three and four miles up to the Blaine mine, 
and has a branch from this line to Silver City and also 
a branch to the Poorman mine; another branch from 
Dewey goes up to the Black Jack mine, a distance of 
approximately 1|- miles; a new line is now being con- 
structed to the Sinker Tunnel which will join the line 
which was run up to the Poorman mine; that will be 
approximately 2\ miles from the end of the Poorman 
mine to the Sinker Tunnel. 

Q. Could the complainant have continued to operate 
its mines at a profit if the power plant at Swan Falls 

had not been constructed? A. It could not. 

Q. You may state the average number of men on the 
pay-roll during the year. 

A. The company has an average of about 225 men on 
the pay-roll. 

Q. You may state in a general way the number of 



vs. Alfred A. Fraser mid A. R. Crusen. 103 

(Testimony of Frederic Irwin.) 

people dependent upon the operation of the complain- 
ant's mines for a livelihood. 

A. It is pretty hard to give any accurate figures on 
this, for in addition to the number of men on the pay- 
roll there are men cutting timber, lagging and wood and 
furnishing other supplies for the mine, which would 
bring the number up considerable; I can't say just how 
many there are. 

|Q. Would it affect, in a general way, the inhabitants 
of the towns of Silver City and Dewey? 

By Mr. FRASER.— We object to the introduction of 
all this testimony, for the reason that it is immaterial, 
irrelevant and incompetent, and does not tend to prove 
or disprove any of the allegations of the complaint in 
this case. 

A. It would, vitally. There are in the neighborhood 
of fifty married men on the pay-roll, and their families 
reside in those towns as well as the little town of Black 
Jack, which surrounds the mouth of that tunnel or mine, 
and practically the greater part of the business men in 
Silver City and Dewey are dependent upon that mine 
and its employees for their support. 

Q. Do you know about what the population of Sil- 
ver City is? A. Between 700 and 800, 1 should say. 

Q. And that of Dewey? 

A. Probably from 75 to 100. 

Q. When the complainant built its power plant did 
it have in contemplation the supplying of any interest 
besides its own with electric power? 



104 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frederic Irwin.) 

By Mr. FRASER. — I object to that as calling for a 
conclusion of the witness, and asking him to state now 
what was in the minds of a party at some prior time. 

Q. In answering that question, you know of your 
own knowledge in regard to the facts which you state, 
do you? A. I know what they have done. 

By Mr. FRASER.— That is all right. Let him state 
what they have done. Let him state the facts. 

Q. State the facts, and state what acts they did as 
tending to show what their intention was, both in the 
construction of the dam and otherwise. 

A. In the construction of the dam provision was orig- 
inally made to apply all the water claimed to a beneficial 
use. 

Q. No, right there, state what amount of water that 
was? 

A. The original location calls for 10,000 cubic feet 
per second, and in the construction of the dam they 
allowed for 16 wheel bays, and as each wheel of the 
same type as are now installed calls for over 500 cubic 
feet of water per second, the total installation would 
therefore call for between eight and nine thousand cubic 
feet per second if the head remained as it is now. 

Q. Well, is it a fact that the head would remain the 
same as it is now? 

A. No, sir, the head would be lowered, and conse- 
quently it would require more water to operate that 
number of wheels, so that if the number of wheels were 



vs. Alfred A. Fraser and A. R. Crusen. 105 

(Testimony of Frederic Irwin.) 

installed that the wheel bays call for it would practically 
require the entire 10,000 cubic feet per second to drive 
them to their full capacity. 

Q. If it had been the intention of the company to 
merely supply its own property with power, it would 
have been unnecessary to have made these provisions, 
would it not? 

By Mr. FRASER.— I object to the form of the ques- 
tion; it is immaterial and irrelevant and calls for a 
conclusion of the witness, and it is asking the witness 
what the intention of some other person or corporation 
was, and calling for no facts whatever. 

A. It would. A dam could have been constructed 
there to furnish power for their own mine at a must 
less expense than the plant which was finally adopted. 

Q. You may state what other interest have been 
supplied with electric power by the company? 

A. The Poorman Gold mines; the Addie Consolidated 
Mining Company; the Trade Dollar Extension Mining 
Company and the Owyhee Light Company. 

Q. Where is the Owyhee Light Company operating? 

A. It is furnishing light for the towns of Silver City, 
Dewey and Murphy. 

Q. In Owyhee County? 

A. In Owyhee County. Contract has been made with 
the War Eagle Consolidated Mining Company to fur- 
nish power to their Sinker Tunnel, located probably 
three miles from Silver City. 



106 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frederic Irwin.) 

Q. Has the company been proceeding as rapidly as 
circumstances and conditions would warrant to ap- 
ply all of the water appropriated for beneficial use? 

By Mr. FRASER. — I object to the question as calling 
for a conclusion of the witness and not a statement of 
any fact. The proper question would be, what has the 
company done since the appropriation of this water? 

A. It has. 

<Q. Up to the time of the alleged appropriation of 
the waters of Snake river by the defendants what steps 
had the complainant taken with a view to the installa- 
tion of further power equipment and the application of 
all of the waters claimed to a beneficial use? 

A. Since December 1st, 1902, when I first became 
connected with this company, we have had a Mr. Bryan, 
a mechanical and electrical engineer from Pittsburg, 
come out and make an examination of the plant with a 
view of installing additional machinery there for the 
generation of power; also to look over the electrical 
possibilities of the field immediately tributary to the 
plant to see if the market conditions would justify the 
installation of any machinery at that time and if con- 
tracts could be made in Boise City for any considerable 
amount of power. After going over the electrical situa- 
tion in Boise it was found impossible to sell any power 
here at what he regarded a fair rate, and consequently 
nothing further was done at that time. Later in the 
year 1903, Mr. A, J. Wiley was instructed to have a sur- 



rs. Alfred A. Fraser and A. R. ( 107 

(Testimony of Frederic Irwin.) 

rev made of the lands lying along the Snake river that 
could be irrigated by pumping; and this was done, at 
considerable expense by the company, and the report 
was received and taken under consideration by the home 
office of the company; but as the most desirable land 
was to be irrigated by the Government this scheme was 
given up as impracticable. The next step that was 
taken was to cause Mr. Wiley to have made a canvass 
of the Short Line towns from Nampa west with a view 
of seeing exactly what amount of electrical power was 
used there and the possible extensions for it. This re- 
port was received last fall, and no definite action has 
been taken on it at this time. In addition to that I 
would like to state that several dredges working on 
the river have been negotiating for power; but nothing 
tangible has resulted from it at this time. 

Q. What would be the effect on the company's plans 
for the utilization of this water diverted by the dam, 
if the defendants' plans are carried out? 

A. They would have to be abandoned. 

Q. How much of the waters of Snake river has the 
company actually diverted by the construction of its 
dam at Swan Falls? 

A. All of the water of Snake river. 

Q. State as far as you know what effect the con- 
struction of defendants' proposed works would have on 
the dam and power plant of complainant. 



108 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frederic Irwin.) 

By Mr. FBASER.— I object to the question for the 
reason that the witness has not shown himself com- 
petent to testify to that question. 

A. I think the construction of the canal on the 
Owyhee County side would menace the property so ser- 
iously, in my opinion, that it would practically destroy 
it. 

Q. Give your reasons. 

A. My reasons for this are, that the lava reef on 
which this dam rests does not run at right angles to 
the original course of the stream, and consequently the 
waters coming over the spillway are forced against the 
Owyhee County bank and this causes a very strong 
eddy to be formed on that side of the river. This eddy 
has a tendency to erode the bank back of the abutment, 
and has already done so. In June, 1903, 1 received a tele- 
phone message from the superintendent in charge of the 
power plant that the fill back of this abutment was wash- 
ing and that it was necessary to take some immediate 
steps to protect the dam. I took a shift from the tunnel 
and by special conveyance hurried them to the dam, and 
there found that this water or eddy had washed the 
riprap and fill back of the abutment on the Owyhee 
County side a distance of about four feet and was still 
washing it at that time. We tried to fill this hole which 
the eddy had cut and found that up to a distance of 
about 16 feet from the pier we could fill it, but from 
there on nothing would stay. We had this crew of men 
put in one rock that was practically five feet square, 



vs. Alifrcd A. Fraser and A. R. Cruscn, 109 

(Testimony of Frederic Irwin.) 

but it dropped into that hole and was lost to sight and 
apparently had no effect whatever. The erosive action 
of the water was finally stopped at that point by putting 
in rails and holding the water that way. 

(By Mr. NUGENT.) 

Q. Steel rails? 

A. Well, track rails. This of course was merely a 
temporary expedient; it was adopted to keep the water 
from washing around this abutment. As soon as low 
water came in the fall we proceeded to put in timber 
cribs below this abutment and had them filled with 
rock, and we thought we had the situation well under 
control. But in 1904, at the high-water stage, a tele- 
phone message from the power plant again summoned 
us to the river, as this time the rip-rap work above the 
pier was being cut out and one of the bulkheads in 
the crib, which was put in the preceding summer, had 
been practically cut out and the rock settled through 
it. We took a crew of men and had them working prob- 
ably for two weeks repairing the damage that the high 
water was doing at that time. Up above the dam on 
the Owyhee County side there is one place where you 
can see a sink hole probably five feet in diameter through 
which the water at the medium stage of the river runs; 
where it runs to we don't know; but we were afraid of 
it, and this year we are having that excavated and a 
crib filled with rock and dirt built above the dam to 
afford additional protection at this point. The fact 



110 The Trade Dollar Consolidated Mm. Co. 

( Testimony of Frederic Irwin.) 

that the concrete masonry is not joined to rock on the 
Owyhee County side but is simply tied to the boulders 
and loose ground there makes it a very difficult point to 
hold; and from the force of the water that I have wit- 
nessed and had a little experience with in handling, 
these two sets of difficulties that we have had during 
the high-water period, have convinced me that no mat- 
ter whether all the men you could get and all the money 
that you could have back of you was available, nothing 
would prevent the destruction of that dam if the water 
at high-water season cut around the south pier. 

Q. What would be the effect of the construction of 
such a canal as is contemplated by the defendant? 

By Mr. FKASEK.— I object to that for the reason that 
the defendant has not shown himself competent to an- 
swer the question. 

A. It would cut us off from the quarry that we use 
in getting the fill to make these repairs that we use 
in the high-water season and would, in my opinion, be 
very apt to cause erosion there that would practically 
give the river a new channel around that south pier. 
It would practically destroy the dam. 

<Q. From your knowledge of the circumstances there 
and the condition of the soil, could such a canal be safely 
constructed? 

A. I don't think it could. On the north side of the 
dam the principal damage would be the lowering of the 
head and cutting our power-house off from the main 



vs. Alfred A. Fraser and A. R. Crusen. Ill 

(Testimony of Frederic Irwin.) 

land. In addition to this the tail-water at this side 
would necessarily raise on account of the islands which 
lie directly below on the Ada County or north side of 
the river, which would have a tendency to back the 
water up and raise the tail-water as well as decreasing 
the efficiency of the machines. 

Q. You may state what effect the construction of 
defendant's works would have on the business of the 
company so far as selling electrical power is concerned. 

By Mr. FRASER. — Objected to as immaterial, irrele- 
vant and incompetent. 

A. It would place the company under a great handi- 
cap. We have an investment there of $350,000 in the 
dam, the interest charge of which has to be met; we are 
also burdened with the care and protection of the dam, 
and this charge in addition to the interest has to be 
provided for in the cost of developing power. If another 
company operating below us was relieved of these 
charges they could afford to sell their electrical power 
at a price that would leave us no margin of profit what- 
ever. 

By Mr. JOHNSON and Mr. FRASER.— It is admitted 
by counsel for the defendants that the complainant holds 
the title to the ground on each side of the river at Swan 
Falls by virtue of patents from the Government of the 
United States, as alleged in plaintiff's bill of complaint. 



112 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frederic Irwin.) 

Cross-examination. 
(By Mr. FRASER) 

Q. Are you a civil engineer? A. No, sir. 

Q. Have you ever had any experience in building 
dams and hydraulic propositions of this kind as an en- 
gineer? 

A. All the experience I have had in hydraulic work 
has been on the property of the Trade Dollar Company 
in protecting the Owyhee County abutment, as stated in 
direct examination. 

Q. How many men had you on your pay-roll prior 
to the use of power from Swan Falls? 

A. I was not connected with the Trade Dollar Com- 
pany prior to that time. 

Q. You were living in Silver City at that time? 

A. Yes, sir; at the Sinker Tunnel, near Silver City. 

Q. You were familiar with the property of the com- 
pany at that time? , A. Yes, sir. 

Q. In your opinion then, from your knowledge over 
there, and being engaged in the mining business, how 
many men had they compared with what they have now? 

A. I could only guess about that; I should think they 
had probably the same. 

Q. How was the population of Silver City at that 
time compared with what it is at the present time? 

A. It was considerably greater. 

(By Mr. NUGENT.) 

Q. Why was the population of Silver City greater? 



vs. Alfred A. Fraser and A. R. Crusen. 113 

(Testimony of Frederic Irwin.) 

A. Why, I think primarily because the wood indus- 
try over there gave employment to a great many men; 
more men then than it does now. 

Q. And the headquarters of the Trade Dollar Com- 
pany were there then, were they? 

A. Yes, sir, nearer than they are now. 

Q. Now, just explain that? 

A. Up until the year 1903 the milling plants of the 
Trade Dollar Company were located at the Black Jack 
and Blaine. The Blaine mill is situated very conven- 
iently to Silver City, I should say not over three-quarters 
of a mile from the town; but in 1903, these two mills 
were closed and the twenty-stamp mill of the company 
at Dewey was put into commission and the main offices 
and practically the headquarters of the company lo- 
cated at that town. 

Q. What year was that? A. 1903. 

Q. Prior to the time of the removal to Dewey the 
principal work of the Trade Dollar Company was done 
from Blaine? 

A. Well, it was a good while ago, but immediately 
prior to the time that I took charge there I think the 
force was distributed about as it is now— that is, in 
the mines. 

(Witness excused.) 



114 The Trade Dollar Consolidated Mm. Co. 

R. H. BRITT, a witness produced on behalf of com- 
plainant, being first duly sworn, testified as follows: 

Direct Examination. 

(By Mr. JOHNSON.) 

<Q. State your name in full, Mr. Britt, and your resi- 
dence and occupation. 

A. R H. Britt. I reside at Dewey, Owyhee County, 
Idaho; my occupation is that of Civil and Mining En- 
gineer. 

Q. How long have you been engaged in the business 
of Civil and Mining Engineering? 

A. Since about 1888, 

Q. You may state what your experience has been 
in that line? 

A. I was graduated as a Civil Engineer in 1888 from 
the Missouri State University. I had had some pre- 
vious experience in engineering, the first being under 
T. T. Johnson for the Mississippi River Commission on 
hydraulic work. Since 1888 I have continuously fol- 
lowed engineering in one line and another, and for five 
years I was manager of the Poorman mine at Silver 
City. I am at the present time employed as engineer by 
the Trade Dollar Consolidated Mining Company. 

Q. Are you acquainted with the general conditions at 
Swan Falls on Snake river, where the complainant's 
power plant is located? A. Yes, sir, I am. 

Q. You may describe that dam and power plant in 
a general way? 



vs. Alfred A. Fraser and A. R. Cruseto. 115 

(Testimony of R. H. Britt.) 

A. The dam is constructed to the east of the Lava 
islands in Snake river; on the south side of the island 
there is constructed crib work filled with rock forming 
a wall some 400 feet long over which the main body of 
the river flows. At each end of the weir is a concrete 
pier, connected with the solid lava rock of the island 
on the north end and with the formation of earth, gravel 
and boulders on the south end. On the north of the 
island the dam is some 400 feet in length, and consists 
of a concrete wall supported by buttresses about 20 
feet apart. This wall is connected to the Lava island 
on the south end and to the Lava bank of the river on 
the north end. The power-house is built at the south 
end of this concrete part of the dam and covers six 
bays or spaces of about 20 feet each; four of these bays 
are converted into penstocks, in each of which is placed 
a turbine wheel about 6 feet in diameter; the wheels are 
connected by shafts and gearing and belts to three elec- 
tric generators of 300 kilowatts each in such a way that 
all the generators may be operated by any three of the 
turbines. The concrete part of the dam is so con- 
structed that each of the spaces between the buttresses 
may be converted into a penstock for another turbine 
similar to those now in place. 

Q. When all of these spaces are converted into pen- 
stocks and supplied with wheels, do you know how much 
of the waters of the river it would require, or about how 
much it would require to operate them? 



11G The Trade Dollar Consolidated Min. Go. 

(Testimony of EL H. Britt.) 

A. Yes, it would require approximately 10,000 cubic 
feet per second. 

Q. Have you examined the permits of the defendants 
and the plats attached to them, filed in the State En- 
gineer's office? A. I have. 

iQ. What would be the effect on the dam and power 
plant of the complainant if these proposed works of the 
defendants were constructed? 

A. The drawing off of the proposed quantity of water 
by the defendants would so lower the head of water 
now being utilized by the Trade Dollar Company that 
the efficiency and capacity of the present wheels would 
be very seriously impaired. 

Q. Do you know of any other effects it would have? 

A. In my opinion it would endanger the existence 
of the present dam to construct the proposed works on 
the south side of the river. 

Q. State your reason for that opinion. 

A. The south side has always been considered the 
weak point in the dam because of the character of the 
formation and because of the erosion that has threat- 
ened the south pier and because of certain signs of leak- 
ing as shown by the bank of the river above the dam 
and below it. 

Q. You heard the testimony of Mr. Irwin in this 
case? A. Yes, sir. 

Q. And what he stated with reference to the diffi- 
culties they had encountered there on the south end 
Qf the dam? A. Yes. 



t?#. Alfred A. Fraser and A. R. Crusen. 117 

(Testimony of R. H. Britt.) 

Q. Are you familiar with these facts? Are you 
familiar with the facts as stated by him? 

A. With most of them — those of 1904, I am. 

Q. You were there yourself at the time, were you? 

A. Yes, sir. 

iQ. And you know of your own knowledge that the 
conditions existed there as described by Mr. Irwin? 

A. Yes, sir. 

Q. What effect, if any, would the diversion of the 
water claimed by defendants have on the tail-race or 
the water in the tail-race from the dam? 

A. The water in the tail-race would be raised if the 
proposed works were constructed on the north side and 
the proposed quantity of water discharged into that 
channel. 

Q. What effect would the raising of the water in this 
tail-race have on the plant of the company? 

A. It would decrease their effective head. 

(By Mr. NUGENT.) 

Q. What effect would that be? 

A. It would decrease the power that would be gen- 
erated by the machines. 

Q. Can you state whether or not the complainant's 
mining properties would have been continued in opera- 
tion if the complainant had not constructed its power 
plant at Swan Falls? 

A. If the power plant at Swan Falls had not been 
constructed the Trade Dollar mine, to the best of my 



118 TJw Trade Dollar Consolidated Min. Co. 

(Testimony of B. H. Britt.) 

knowledge and belief, would have been closed down 
years ago. 

Q. How much of the waters of Snake river does the 
complainant actually divert by means of its dam? 
A. All of it. 

Q. Is that water as completely and effectually di- 
verted, according to the meaning of that term, as if it 
had been diverted by means of a canal? 

By Mr. FBASEB. — I object to that as calling for a 
conclusion of the witness. 
A. Yes, sir. 

Cross-examination (waived by defendant). 
(Witness excused.) 

At this time a recess was taken until 10 o'clock A. M., 
May 7th, 1905, at which time proceedings were resumed 
as follows: 

D. W. BOSS', a witness produced on behalf of the 
complainant, being first duly sworn, testified as follows: 

Direct Examination. 

(By Mr. JOHNSON.) 

Q. State your name and residence. 

A. D. W. Boss, Boise, Idaho. 

Q. What is your occupation? 

A. Civil Engineer. 

Q. How long have you been engaged in that profes- 
sion? A. About 18 years. 

Q. How long have you lived in Idaho? 



vs. Alfred A. Fraser and A. R. Crusen. 119 

(Testimony of D. W. Ross.) 

A. About fifteen years. 

Q. Have you devoted yourself specially to any par- 
ticular branch of engineering? A. Yes, sir. 

Q. You may state what that is. 

A. During the past fifteen years I have been engaged 
chiefly in work relating to irrigation. 

Q. Have you ever had occasion to make a study of 
the water supply of this State, and if so, state your 
relation to these investigations? 

A. Yes, I have made a study of the water supply for 
the arid portions of Idaho during the years 1898 to 
1902, inclusive. I was State Engineer of Idaho and 
had charge of the investigation of the water supply for 
irrigation from different sources; and during the same 
period I had general charge of the work of the United 
States Geological Survey in charge of the stream meas- 
urements being conducted by the survey, and also was in 
charge of the investigations being made by the Depart- 
ment of Agriculture — investigations relating to irriga- 
tion. 

Q. Have investigations ever been made of the flow 
of the waters of Snake river, and, if so, through what 
agency and under whose immediate supervision? 

A. They have been made by the United States Geo- 
logical Survey, beginning with the year 1889, and con- 
tinuing from time to time until 1893; then from 1895 
until the present time without any interruption. Dur- 
ing the past six years these investigations have been 
under my general or immediate supervision. 



120 The Trade Dollar Consolidated Min. Co. 

(Testimony of D. W. Ross.) 

Q. What is your present relation to the work of ir- 
rigation investigations in this State? 

A. I have charge of the work for the Government 
now being done through the Reclamation Service. 

Q. State at what point measurements are made of 
the flow of Snake river. 

A. At Montgomery's Ferry, a point about nine miles 
southwest of Minidoka. 

Q. How often are these measurements made? 

A. Gauge heights are read daily. These heights are 
reduced and the discharge calculated from the same. 

Q. Are you acquainted with the plans for irrigation 
development in the Snake river valley? 

A. Yes, I am. 

Q. Will Snake river furnish sufficient water for the 
irrigation of all the lands of the valley from its natural 
flow? 

A. No. From sixty to seventy per cent of the water 
required during the latter part of the season will have 
to be supplied from storage reservoirs; that is, in the 
irrigation of all of the reclaimable lands of the valley. 

Q. During what months would you say that was? 

A. That will occur during the months of July. Au- 
gust and September. 

Q. What percentage of the reclaimable lands of the 
Snake river valley are now under irrigation? What is 
the estimated reclaimable area? 

A. About 25 per cent. The total reclaimable area 
is about 13 hundred thousand acres. 



vs. Alfred A. Fraser and A. R. Crusen. 121 

(Testimony of D. W. Ross.) 

Q. What is the present condition of the flow of Snake 
river during the month of August? 

A. During August for the years 1900 to 1903, inclu- 
sive, all the water of Snake river was diverted for the 
irrigation of land situated above the town of Blackfoot. 
About 2,100 second-feet of water is supplied by springs 
below this point, which was all that was flowing in the 
river at Montgomery's Ferry during the minimum stage; 
there is a further increase in the discharge from springs 
beginning at a point near Shoshone Falls and extending 
for nearly 40 miles or a short distance below the mouth 
of Malad river. The springs which discharge into Snake 
river between these points increase its flow nearly 5,- 
000 second-feet; or, the mean flow during the month of 
August for the vears mentioned below the mouth of 
Malad river was about 6,500 second-feet. 

Q. Do you know where a place called Swan Falls is 
situated? A. Yes. 

Q. Is that place embraced in this section that you 
refer to as being above the town of Blackfoot? 

A. No, it is below. 

(By Mr. FRASER.) 
Q. That is below the Malad river, too, is it not? 
A. Swan Falls? 
Q, Yes. A. Yes, sir. 

(By Mr. JOHNSON.) 

Q. Where is Swan Falls with reference to the Malad 
river? A. Below it. 



122 The Trade Dollar Consolidated Min. Co. 

(Testimony of D. W. Ross.) 

Q. And it is above Blackfoot, as I understand it? 

A. No, below Blackfoot on the river. 

Q. What effect will the diversion of water for the 
Twin Falls and the Minidoka tracts have upon the flow 
of Snake river at the Swan Falls dam during the months 
of August and September in years of low water? 

A. The irrigation works which are being constructed 
for the reclamation of these tracts of land provide for 
the diversion of about 5,400 second-feet during the month 
of August. There will, however, only be about 2,100 
second-feet flowing in the stream, which supply will 
have to be supplemented by storage. But after the 
diversion of 2,100 second-feet there will be practically 
no water flowing in Snake river until the Thousand 
Springs region is reached, when there will be a dis- 
charge of approximately 5,000 feet. 

Q. Where are these springs located with reference 
to Swan Falls? 

A. About 80 miles above. This amount, the 5,000 
second-feet, would be reduced some by losses, leaving 
about 4,500 second-feet available for power purposes 
during this stage of the river at Swan Falls. 

Q. Are you acquainted with the dam and power- 
house belonging to the complainant in this case? 

A. Yes, I have a general knowledge of those plans. 

Q. In what way did you become acquainted with 
those plans? 

A. Well, as State Engineer of Idaho, those plans 
were filed in that office for my approval. 



vs. Alfred A. Fraser and A. R. Cruscn. 123 

(Testimony of D. W. Boss.) 

Q. And did you approve of them, as required by law? 

A. Yes. 

Q. Briefly describe these plans, stating' how much 
water will be necessary for the purpose of rendering 
available all the provisions which have been made for 
power development in the designing of the works. 

A. The south half of the dam is constructed of tim- 
ber of an over-fall type; the north portion is built of 
concrete consisting of a vertical wall five feet thick sup- 
ported by buttress walls each five feet in thickness. 
The power-house is located in the river north of the 
south end of the concrete portion of the dam. It is at 
present equipped with four 72-inch wheels, which work 
under a head of from 18 to 19 feet, each wheel in doing 
its full amount of work requiring 538 second-feet of 
water, or, 2,152 second-feet altogether. The concrete 
dam and buttress walls referred to also enter into the 
construction of the wheel-pits anl races, arrangements 
being made, through the spacing of those walls, for the 
ultimate installation of 16 units; six of those provided 
for in the power-house are now constructed, the remain- 
ing ten being provided for in the designing of the dam 
and buttress walls. Eight thousand six hundred second- 
feet of water will be required for the utilization of the 
works as planned. 

Q. To what extent, if any, would the diversion of 
4,000 second-feet, around the ends of the dam, to be 
used at a point lower down, by the defendants, inter- 



124 The Trade Dollar Consolidated Min. Co. 

(Testimony of D. W. Ross.) 

fere with the utilization of the present works as they 
are planned and constructed? 

A. Since the minimum available supply of water at 
this point will shortly be reduced to 4,500 second-feet 
during the months of July, August and September, there 
would only be 500' second-feet available for use by the 
plant of complainant if such a diversion as is contem- 
plated should be made. The wheels now installed re- 
quire 2,152 second-feet, while provision is made in the 
design of the structure for the utilization of 8,600 sec- 
ond-feet, so, if the defendants were permitted to divert, 
as is proposed, 4,000 second-feet, it would be impossible 
to operate even one wheel of the four which are in- 
stalled. 

Q. You may state whether or not the complainant, 
by its present works has actually diverted 10,000 cubic 
feet per second of the waters of Snake river. 

A. When there is that amount in the river. 

By Mr. FRASER. — I object to that as calling for a 
conclusion of the witness. 

(By Mr. JOHNSON.) 

Q. Well, I will change the form of that question. 
You may state how much of the waters of Snake river 
the complainant has actually diverted by means of its 
dam. 

A. I think the complainant, through the construction 
of the present works, has actually diverted the amount 
of water which will be required. 



vs. Alfred A. Fraser and A. R. Crusen. 125 

(Testimony of D. W. Ross.) 

Q. You stated that amount to be something over 
8,000 cubic feet per second? A. Yes, sir. 

Q. Give your reasons for that conclusion. 

A. The only object in constructing the dam was to 
create a head or fall for the driving of the water-wheels. 
This head might have been obtained by constructing a 
canal instead of a dam, one diverting at a point above 
the present backwater and ending at a point near the 
site of the dam. Had a canal been constructed of suffi- 
cient capacity to utilize 10,000 second-feet of water, it 
would probably have been conceded that the diversion 
of the water claimed had been made in good faith and 
a reasonable time would have been allowed the com- 
plainant in which to put this water to a beneficial use. 
Under this plan they would have proceeded to use the 
water about as they are now doing, by installing such 
wheels as would be needed from time to time, following 
much the same order in the beneficial application of 
the water as is followed in its utilization for irrigation. 
In many cases it is necessary to construct a canal large 
enough to irrigate all the lands tributary to the same, 
but it frequently happens that many years elapse be- 
fore the full capacity of the canal is demanded and used. 
In this particular case it was doubtless cheaper to con- 
struct a dam than a canal; but exactly the same results 
have been accomplished. 

Q. If it should be held that defendants have a right 
to take advantage of the construction of this dam, would 



126 The Trade Dollar Consolidated Min. Co. 

(Testimony of D. W. Boss.) 

it be possible for them to carry out their plans in a 
way which would not endanger the existing works? 

A. I think it would. 

Q. State the manner. 

A. I think there is only one way in which it could be 
done, and that would be for them to take advantage of 
the existence of the dam by locating a power-house in 
the river, the same as complainant had planned to do. 
No risk at all would be involved in carrying out this 
plan. 

IQ. But that would not involve the construction of 
canals as contemplated? 

A. No, it would not be necessary to construct canals. 

Q. Mr. Boss, are you familiar with any other avail- 
able sites on Snake river that might be used for the 
development of power in a similar manner to the way in 
which complainant has developed it at Swan Falls? 

By Mr. FBASEB.— We will admit that. Mr. Wiley 
has testified there is no question about it. 

A. Yes, I have a general knowledge of several sites 
in the vicinity of Swan Falls. 

Q. In asking this question I am only referring to 
sites that are available and practical for the construc- 
tion of a dam, at a cost not exceeding, or approximately 
the same as the cost the complainant has incurred. If 
you know of any such sites, please mention them? 

A. There is one site a few miles below the town of 
Weiser where a head of from 12 to 16 feet can be de- 



vs. ATfred A. Fraser and A. R. Crusen. 127 

(Testimony of D. W. Boss.) 

veloped; there is another site some four to six miles 
above Walter's Ferry. 

Q. Is that the place known as the Cove, if yon know? 

A. I think it is called the Cove; it is in that vicinity. 

Q. Do you consider that point as accessible to towns 
on the Oregon Short Line Railroad as the Swan Falls 
plant, and also to Boise? 

A. Yes, it is practically the same distance to all of 
those towns. 

Q. Would the erection of a plant at that point have 
a damaging effect on the plant of the complainant, if you 
know? 

A. I cannot answer that from personal knowledge. 

Q. How far is it from the complainant's plant, ap- 
proximately? 

A. I should say about eight or ten miles below. 

Q. Do you know whether or not the fall of the river 
is sufficient to prevent the water backing up and in- 
juring complainant's dam if the dam was constructed 
there? 

A. Well, that would depend entirely upon the height 
of the dam to be constructed. 

Q. You don't know of your own knowledge whether 
a dam at that point would interfere? 

A. No, I couldn't state from my personal knowledge. 

Cross-examination (waived by defendants). 

(Witness excused.) 



128 The Trade Dollar Consolidated Mm. Co. 

FRANK C. HORN, a witness produced on behalf of 
the complainant, being first duly sworn, testified as 
follows: 

Direct Examination. 

(By Mr. JOHNSON.) 

Q. Mr. Horn, you may state your name, age, resi- 
dence and occupation. 

A. Frank O. Horn; residence, Minidoka, Idaho, at 
the present time; forty-four years old; civil engineer. 

Q. How long have you been practicing your profes- 
sion? 

A. I have been engaged in the profession twenty- 
four years, since I was twenty years old. 

Q. During that time have you devoted your atten- 
tion particularly to hydraulic engineering? 

A. I have in a very great measure. 

Q. State your experience along that line. 

A. I have had charge, in the first place, of the water 
supply of the town of Lake, Illinois, now a portion of 
Chicago — the south side. I had charge of the water 
supply, construction and remodeling, of the town of 
Lake, Cook County, Illinois; built the water supply 
system of Hammond, Indiana, as Superintendent and 
Engineer for the contracting firm; built the waterworks 
at Harrison, Illinois and at Troy, Alabama; had charge 
of the construction of the Regulating works of the 
Sanitary District of Chicago, Illinois; also had charge 
of the construction of the light plant for the Light and 
Power Company of Joliet, Illinois; built part of the 



vs. Alfred A. Fraser and A. R. Crusen. 129 

-(Testimony of Frank C. Horn.) 

Filter System for the Denver Union Water Company of 
Piatt County, Colorado, and later had charge of the 
construction of the dam for that company at Cheeseman, 
Colorado. 

Q. In what connection with that work are you en- 
gaged at the present time? 

A. Constructing engineer for the United States Rec- 
lamation Service, and have charge of the construction 
of the dam at Minidoka. 

Q. Were you at any time connected with the con- 
struction of the dam of the Trade Dollar Consolidated 
Mining Company, in connection with this case, at Swan 
Falls? A. Yes, sir. 

Q. State in what capacity. 

A. Assistant chief engineer. 

Q. During what period? 

A. From August 16th, 1900, to April 15, 1901. 

Q. Are you fully acquainted with all of the details 
of the construction of the Trade Dollar Consolidated 
Mining Company's plant at Swan Falls? 

A. Yes, sir. 

Q. Describe in a general way what the dam consists 
of? 

A. On the northerly side of the river, starting from 
the island in the middle of the river, it is of concrete 
construction; from the island toward the southerly side 
of the river, the south bank of the river, it is a rock 
filled crib construction with concrete abutments, one at 
the island and one at the south bank of the river. 



130 The Trade Dollar Consolidated Mm. Co. 

(Testimony of Frank O. Horn.) 

Q. Have you made an examination of the maps con- 
nected with the defendants' applications for permits 
to divert the water at Swan Falls? A. I have. 

Q. What effect would such a diversion have upon 
the dam and power-plant of complainant? 

A. It would be fatal to it. 

Q. You may state your reasons for that conclusion . 

A. On the south side it is of a boulder foundation; 
the bedrock dips and the abutment ends against this 
boulder formation, which is filled in with ashes and 
very soluble matter, when the water comes in contact 
with it and would be very quickly eroded by the action 
of the water, and would no doubt cut a channel on that 
side of the river back of the abutment and destroy the 
efficiency of the dam. 

Q. State what the effect would be on the north end of 
the dam. 

A. It would be similar. This material would be 
subject to erosion the same as on the south side and 
would cut out no doubt in a very short time, and de- 
stroy the dam, as it would on the south side. 

Q. What other effect would the diversion of the 
amount of water claimed by the defendants have on the 
complainant's power-plant? 

A. It would destroy the efficiency of the dam and 
render any future development impossible. 

Q. Especially with reference to the head of water 
created by the defendants' dam, what effect would it 
have? 



vs. Alfred A. Fraser and A. R. Crusen. 131 

(Testimony of Frank CI Horn.) 

A. It would render any future development impos- 
sible^ — 

Q. I don't mean with reference to that. Would it 
have the effect of lowering- the head of water? 

A. It would lower the head of water decidedly. 

Q. What effect would that have on the output of the 
company's plant? 

A. It would reduce the output of the power — the 
efficiency of it. 

Q. What would be the eventual result of that if the 
defendants' plans were fully carried out and the 4,000 
cubic feet of water diverted? 

A. It would result in the destruction of the present 
plant and render an entirely new construction and re- 
arrangement of the machinery necessary. 

Q. You stated that a portion of this dam was built 
of concrete. You may state particularly how that por- 
tion of the dam was constructed with reference to its 
future use. 

A. It was a wall five feet thick, with buttresses on 
the lower side for the purpose of providing future wheel 
bays for the installation of other wheels; and the num- 
ber of wheels installed were four 72-inch McOormick 
wheels. Spaces were left for future additions by these 
buttresses. 

Q. Might there have been a saving in the expense of 
construction of this portion of the dam if the company 
had simply intended to use the wheels that are installed 
at present without enlarging it? 



132 The Trade Dollar Consolidated Min, Go. 

(Testimony of Frank O. Horn.) 

A. There wonld have been a saving. 

Q. In what respect? 

A. It would have taken less material to build that 
dam and less labor to do so. 

Q. State the effect of the defendants' application for 
a permit upon the value of the complainant's property . 

By Mr. FRASER. — 1 object to that as immaterial, ir- 
relevant and incompetent; the witness has not shown 
himself competent to testify to that effect; and for the 
reason that any damages of that kind would be specula- 
tive and not such damages as could be proven. 

A. It would depreciate the value of the complainant's 
property; it is bound to. 

Q. Give your reasons for that statement, Mr. Horn r 
Why has it depreciated the value of the complainant's 
property? 

A. By destroying the head — reducing the efficiency — 

Q. I am speaking now merely of this application. 
It has not been carried out yet. This application for a 
permit which they have filed; what effect has the filing 
of that had? 

A. By clouding the title of the property, I should say. 

Q. Has it had any effect upon the future plans of the 
company? A. It certainly does. 

Q. Prevents them from carrying them out? 

A. Prevents them from carrying them out. 

Q. Until the matter is settled? 

A. Until the matter is settled. 



vs. Altfrcd A. Fraser and A. R. Crusen. 133 

(Testimony of Frank G Horn.) 

Q. What quantity of the waters of Snake river has 
the complainant actually diverted by means of the dam 
at Swan Falls? 

A. All of it; the entire flow of the river. 

Q. You testified with reference to the effect the com- 
plainant's works would have on the dam on the north 
end \ Will you state more in detail the conditions that 
exist at the north end of the dam with reference to the 
surrounding soil and ground there? 

A. It is a lava formation in detached masses; it is 
filled with ashes, lava ashes and sand, which is readily 
soluble under the action of the water. 

Q. On the north end is the dam anchored to solid 
rock? 

A. It is not; the wall is just carried right into the 
bank. 

Q. Is there a rock formation there? 

A. There is a rock formation, but not solid rock. 

(By Mr. NUGENT.) 

Q. You have no personal knowledge, Mr. Horn, of 
the quantity of water flowing in the Snake river at the 
Swan Falls dam either at the high-water or the low- 
water stage, have you? A. No. 

Cross-examination. 

(By Mr. FRASER.) 

Q. You are here under pay from the complainant com- 
pany to testify in this case? A. Not that I know of. 

Q. You were requested to be here? 



134 The Trade Dollar Consolidated Min, Co. 

(Testimony of Frank <C. Horn.) 

A. I was requested to be here. 

Q. Do yon mean to state, as a civil engineer, that it 
is impossible to build a canal that water won't seep 
through, by concrete or other methods? 

A. It is impossible unless there is an excessively 
large amount of concrete put in. 

Q. I mean, is it an impossibility? 

A. So it won't seep? 

Q. Yes. A. I think so. 

Q. How about a pipe? 

By Mr. NUGENT. — I object to that as incompetent, 
irrelevant and immaterial for the reason that the de- 
fendants show they propose to divert the water by a 
canal 80 feet in width, and that the question of the di- 
version of this water by means of a pipe does not enter 
into this contention. 

A. It could possibly be done, but in this case I should 
certainly consider it impracticable. 

Q. I am not asking about the impracticability; I am 
asking if it can be done. 

A. A very heavy cast-iron pipe could possibly be put 
in there. 

Q. You have stated that you consider a damage had 
been done by the filing of this permit, as I understand 
you? A. Yes, sir. 

Q. If the defendant here had no right to make that 
filing, how would it be in that case? If the record shows 
that the Swan Falls Company had a prior right to the 



vs. Alfred A. Fraser and A. R. Crusoi. 135 

(Testimony of Prank C. Horn.) 

water, and ours is a subsequent filing, how, in that mat- 
ter, would the title be defective? 

A. Your filing clouds that title; anybody putting 
money in, it prevents them from going ahead and mak- 
ing any improvements there. 

Q. It clouds it whether it is a legal filing or an il- 
legal one? A. I should say, yes. 

Q. You are not speaking from a lawyer's standpoint? 
A. I am speaking from the standpoint of the man 
who invests the money. 

Q. If you claim all the water was diverted, you mean 
by that that it was flowing over the dam of the com- 
plainant herein, don't you? 

A. It is diverted from its original position; it is be- 
ing diverted and used through that dam and over that 
dam. 

Q. It still runs down the Snake river? 
A. Yes, sir. 

Q. And the only difference is that it runs over a 
dam instead of down the natural bed of the river? 
A. Yes. 

(By Mr. JOHNSON.) 

Q. In diverting this water do you know about what 
head of water was created by the dam? 

A. Nineteen feet, as I remember. 

Q. That enters into the question of the diversion 
also, does it not? A. Yes, sir, it does. 

Q. If a pipe were attempted to be put around th« 



136 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frank O. Horn.) 

ends of the dam that would require excavation, would it 
not? 

A. It would require excavation and the dislodge- 
ment of the present formation. 

Q. Would that, in your opinion, be fatal to the dam? 

A. It would be fatal to the dam itself. 

Q. Even supposing it would be possible to put a pipe 
in there, what effect would the headgate of the pipe or 
the commencement of the pipe have on the banks of the 
river? 

A. The water would work around this and follow 
along: the pipe and back of these headgates and cause 
erosion and cutting if the material in which the pipe is 
laid is once broken up, as would be necessary in laying 
the pipe. 

Q. Defendants, in their permit, state that the esti- 
mated cost of the works is $50,000. You may state, 
from your knowledge as a civil engineer, whether it 
would be possible, for that amount of money, to put 
canals around the ends of this dam and secure them with 
concrete for any such amount as that. 

A, I should not consider it so, from the formation 
and the conditions we experienced in building that dam 
and getting a contact in the north and south banks. 

Q. Is it true, as a matter of fact, that when large 
works are constructed with concrete, works constructed 
for the purpose of carrying water, that they are very 
liable to crack and seepage occur through the concrete? 



vs. Alfred A. Fraser and A. R. Crusen. 137 

(Testimony of Frank C. Horn.) 

A. I have never seen a case where that has not oc- 
curred, and I have examined a great many in different 
parts of the country. 

Q. You may state, of your own knowledge, some of 
your experiences along that line. 

A. Last winter I took a trip to Olinton, Massachu- 
setts, to examine a large dam there under construction; 
that is a heavy masonry dam; that is cracked and there 
is a leak underneath. I went down to see the Croton 
dam, and there are cracks there. I think those cracks 
would average from thirty-five to forty feet. 

Q. Will that same rule apply to canals? 

A. Yes, sir. And a dam I had charge of building 
at Cheeseman, Colorado, cracks have developed in that 
above the water; of course, it does not show any leak 
yet, but it probably will. In the building of the con- 
crete work for the Sanitary District, Chicago, there 
were cracks developed that I think would average about 
over thirty feet. I have never seen any concrete built 
but what was more or less porous — more or less water 
seeped through. The same thing occurred on the Swan 
Falls dam; there is one crack developed way out near 
the power-house, and the last time I saw it there was 
seepage through there. I don't know of any piece of 
masonry of any magnitude but what will show cracks 
sufficient to let water through and cause leaks. 

Q. Would that apply also to a canal, the dimen- 
sions — 



13® The Trade Dollar Consolidated Mm. Go. 

(Testimony of Frank 0. Horn.) 

A. It would apply to a canal of that dimension faced 
up with concrete. And the same thing occurred in our 
filter beds of the Denver Union Water Company. 
Cracks developed there and water leaked through and 
gave us a great deal of trouble; and they were well 
built, too. 

;Q|. You consider it, then, impracticable to construct 
the proposed works of the defendants, even if they 
should attempt to construct them of concrete, without 
endangering; the dam? 

A. I certainly do consider it would be dangerous. 

(By Mr. FBASEK.) 

Q. Would not the degree of danger to this dam de- 
pend upon the proximity or remoteness to the dam of 
this ditch or conduit? 

A. I don't think in this case it would; whether you 
had it close or a long ways back, it would be affected 
just the same. 

Q. Well, suppose it was a mile away? 

A. The eroding effect would be just the same; the 
material through which it would be constructed, as far 
as I know, is no better than right there at the dam. 

Q. Supposing a canal was constructed that showed 
any signs of leakage. Is it not a very simple matter to 
shut the water out of that canal and stop it right there? 

A. I don't think so; not taking into consideration 
your headgates. 

Q. If the headgates were shut down? 

A. I have known of failures at the headgates. 



vs. ATtfred A. Fraser and A. R. Orusen. 139 

(Testimony of Frank Q. Horn.) 

Q. But that is a remote possibility? 

A. Not a remote possibility; it occurs quite often. 

Q,. Do you mean it is impossible to shut the water 
out? 

A. With the ordinary construction of headgates it 
is impossible to shut the water out absolutely; I have 
never seen any that could be shut down tight; and then 
you have the action of the water around those gates 
and following along outside of your canal where the 
material has been disturbed. 

Q|. I am asking! you about the canal itself. If there 
is any indication of leakage is it not a simple matter to 
shut the water out of the canal? 

A. It all depends upon your headgates. Headgates 
could be built probably that would shut it out. 

(By Mr. JOHNSON.) 

■Q. Mr. Horn, examine these plats, which are certi- 
fied copies of the plats filed in the State Engineer's of- 
fice by the defendants and which are attached to the 
plats marked exhibits "A " and "B," and estimate, ac- 
cording to those plans, the distance from each end of 
the dam of complainants to the defendants' canal as de- 
signed. 

A. Well, this is not over 30 feet on the Owyhee 
County side; that is, the south side; I should say 85 feet 
on the north side, the way I scale it. 

Q. You testified with reference to shutting: off of 
water by means of headgates in those canals if they 
were constructed of concrete. If they were constructed 



140 The Trade Dollar Consolidated Min. Co. 

(Testimony of Frank d Horn.) 

of concrete and they were full of water would there be 
any way to determine when there was a leak in those 
canals? Would there be any way to determine from 
the mere inspection of the canals whether or not there 
was a small leak or any leak at all in the concrete un- 
less it was of great magniture? 

A. No, sir; not until it had cut in and got big head- 
way in there. 

lQ. In other words, damage might occur to the dam 
before they had any knowledge that there was a leak 
there? A. That is my opinion. 

Q. At that time then it would be too late to shut 
the water off? 

A. Too late to shut it off to do any good — for any 
simple repairs, or any repairs in fact. 

{By Mr. FRIASEiK.) 

Q. It would take quite a volume of water, would it 
not, Mr. Horn, to injure that dam? 

A. Not necessarily; not in that formation; a very 
small leak would do a whole lot of damage there. 

Q, Wash out the dam before it could be observed? 

A. Very likely to. 

(Witness excused.) 

By Mr. JOHNSON. — Complainant offers in evidence 
copies certified by the Secretary of State of the State 
of Idaho of the articles of incorporation and designa- 
tion of agent of the Trade Dollar Mining Cbmpany, also 
certified copy of the amended articles of incorporation 






vs. Alfred A. Fraser and A. R. Crusen. 141 

of the Trade Dollar Mining- and Milling Company chang- 
ing the corporate name of said Company to the Trade 
Dollar Consolidated Mining Company; certified copies 
of the three additional amendments to the articles of in- 
corporation of the Trade Dollars Consolidated Mining 
Company, and also the designation of agent of the 
Trade Dollar Consolidated Mining Company, and ask 
that they be marked Complainant's Exhibit "G." 
(Same are so marked.) 

By Mr. FRASER.— I object to the introduction of 
the amendment to the articles of incorporation adopted 
at the meeting of the company held on the 13th day of 
February, 1905, for the reason that the same was 
adopted after the commencement of this action and 
after the filing of the permit to divert waters of the 
defendants herein, and for that reason it is immaterial, 
irrelevant and incompetent in this case. 

Testimony closed, on the part of the complainant. 



142 The Trade Dollar Consolidated Min, Co. 



In the Circuit Court of the United States, District of Idaho, 
Central Division. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 

vs. 

ALFRED A. FRAiSER and A. R. 

ORUSElN, 
i Respondents. 

Report of Special Examiner. 

Be it remembered that I, A. L. Richardson, Clerk of 
said Court and Slpecial Examiner appointed in the 
above-entitled cause, pursuant to the stipulation of the 
parties hereto, attended at the office of Messrs. Johnson 
& Johnson, in Boise, Idaho, on the 4th, 5th and 6th days 
of May, 1905. That there appeared on behalf of the 
complainant R. H. Johnson, Esquire, and John F. Nu- 
gent, Esquire, of counsel for complainant, and on be- 
half of the defendant, A. A. Fraser, Esquire, of counsel 
for defendant. 

That A. J. Wiley, Frederic Irwin, R. H. Britt, D. W. 
Ross and Frank C. Horn, witnesses produced on be- 
half of the complainant, before giving their testimony, 
were each of them by me first duly sworn to tell the 
truth, the whole truth and nothing <but the truth, and 
that they thereupon testified as is above shown. That 
the testimony of each of said witnesses was taken down 
in shorthand, in the presence of said witnesses, and 



vs. Alfred A. Fraser and A. R. Crmen. 143 

was thereafter reduced to longhand by the reporter. 
That the signing' of the said depositions by said wit- 
nesses was expressly waived by stipulation of counsel 
for the respective parties. 

I further certify that the exhibits hereto attached 
and numbered "O," "D," "E," "F" and "G" were of- 
fered in evidence on behalf of said complainant. 

That I am not of counsel in said cause or otherwise 
interested in the suit. 

Witness my hand and the seal of said court, this 25 
day of May, 1905. 

[Sieal] A, L. RICIHARDSOiN, 

Clerk United States Circuit Court and Special Exam- 
iner herein. 

Stenographer's Pees: $67.75, 

[Endorsed]: No. 245. U. SI Circuit Court, Central 
Division, District of Idaho. The Trade Dollar Con'd. 
M. Oo. vs. Alfred A. Eraser et al. Examiner's Report. 
Oomplts. Testimony in Chief. Filed May 25, 1905. A. 
L. Richardson, Clerk. 



Complainant's Exhibit "D." 

58. 

NOTICE OF LOCATION OF WATER RIGHT AND 

DAM-SITE. 
Notice is hereby given, that I, Joseph H. Hutchinson, 
of Silver City, Owyhee County, Idaho, claim the right 
to the use of ten thousand (10,000) cubic feet per sec- 
ond, of the waters of Snake river; said water to be 



144 The Trade Dollar Consolidated Min. Co. 

diverted from said Snake river at or near a point about 
ten miles up said Snake river from the town of Guffey, 
Owyhee County, Idaho, which point is more partic- 
ularly described and identified by a large lava rock 
island near the center of said river, at what is known 
as Swan Falls. 

The use of said water is claimed for the following pur- 
poses: Power for motive, manufacturing, mechanical, 
electric light, electric power, and other useful and 
beneficial purposes and for irrigation by means of 
pumping and otherwise. 

Said water to be diverted by means of a dam or else 
two canals or conduits. 

The said dam to be constructed across said river at 
the point hereinbefore mentioned as Swan Falls. 

Said point of dam-site is more particularly described 
as follows: On the Owyhee County side by what is 
known as the Hardie placer claim, on the Ada County 
side by what is known as the Island placer claim, and 
the island in said river at said point known as the Eub- 
berneck placer. 

Further the water flowing at said point is to be used 
for power for motive, manufacturing, mechanical, elec- 
tric light, electric power and for pumping water foi 
irrigation purposes in the counties of Ada, Canyon, 
Owyhee, Elmore, Lincoln and Cassia, and other places 
in Idaho. 

Plans and specifications of said dam-site will be filed 
with the State Engineer of Idaho as required by law. 

I hereby claim five years in which to complete said 



vs. Alfred A. Fraser and A. R. Grusen. 145 

dam or canals as provided by the laws of the State of 
Idaho. 

Dated this 17th day of January, 1900. 

JOSEPH H. HUTCHINSON, 
Posted at Swan Falls. 
Witness : 



Filed Feb'y. 2d, A. D. 1900, at 3 o'clock P. M., at re- 
quest of James Reese. 

E. L. BALLARD, 
Recorder of Owyhee County. 

Recorded in Book 3 of Water Rights, Mill-Sites and 
Tunnel-Sites, pages 750 and 751, among the records of 
Owyhee County, Idaho. 

State of Idaho, 

County of Owyhee, — ss. ■ 

I, J. S. St. Clair, Ex-officio Recorder in and for the 
County of Owyhee, State of Idaho, do hereby certify 
that I have compared the foregoing copy of notice of 
location of water right and dam-site, as recorded in 
this office, on the second day of February, 19*00, and of 
the endorsements thereon, with the original records of 
the same remaining in this office, and that the same 
are correct transcripts therefrom, and of the whole of 
said original records. 

Witness my hand and official seal, this 23d day of 
Nov., 1903. 

[Seal] J. S. ST. CLAIR, 

Ex-officio Recorder. 



146 The Trade Dollar Consolidated Min. Co. 

[Endorsed]: Certified Copy of Location of Water 
Right and Dam-Site by Jos. H. Hutchinson at Swan 
Falls, Idaho. Dated Jan. 17, 1900. 

No. 193. 
State of Idaho, 
County of Owyhee, — ss. 

Joseph H. Hutchinson, of Silver City, County of 
Owyhee, State of Idaho, being first duly sworn, de- 
poses and says that he is of lawful age and the appro- 
priator and claimant of the water right described in 
that certain notice of location of record in the office of 
the recorder of Owyhee County, Idaho, in Book 3 of 
Water Eights, on pages 750 and 751, and whose name is 
subscribed thereto. 

That the statements in said notice are true, and that 
the original notice, of which the notice recorded as 
aforesaid, is a true copy, was posted in a conspicuous 
place at or near the point of intended diversion at ten 
o'clock A. M, the 17th day of January, 1900. 

JOSEPH H. HUTCHINSON. 

Subscribed and sworn to before me this 1st day of 
May, 1900. 

[Seal] B. L. BALLARD, 

Recorder. 

By J. S. St. Clair, 

Deputy. 



vs. AUfrcd A. Fraser and A. R. Cruscn. 147 

Filed May 1st, A. D. 1900, at 5 o'clock P. M., at re- 
quest of Jos. H. Hutchinson. 

E. L. BALLARD, 
Recorder of Owyhee County. 

By J. ft St. Glair, 
; I Deputy. 

Recorded in Book 3 of Water Rights, Mill-Sites and 
Tunnel-Sites, page 760, among the records of Owyhee 
County, Idaho. 

State of Idaho, 
County of Owyhee, — ss. 

I, J. ft St. Clair, Ex-officio Recorder in ana for the 
County of Owyhee, State of Idaho do hereby certify that 
I have compared the foregoing copy of affidavit, as re- 
corded in this office on the first day of May, 1900, and 
of the endorsements thereon, with the original records 
of the same remaining in this office, and that the same 
are correct transcripts therefrom, and of the whole of 
said original records. 

Witness my hand and official seal, this 23d day of 
Nov., 1903. 

[Seal] J. S. ST. CLAIR, 

Ex-ofificio Recorder. 

[Endorsed] : No. 245. Certified 'Copy of Notice of 
Water Right Location and Affidavit of Posting Notice 
of Water Right Location at Swan Falls by Jos. H. 
Hutchinson. Dated and Filed Jan. 17 and May 1, 
1900. Complainant's Exhibit "D." Plaintiff's Notice 
of Water Right Location and Affidavit of Posting. 
Filed May 25, 1905. A. L, Richardson, Clerk. 



148 The Trade Dollar Consolidated Min. Co. 

Complainant's Exhibit "E." 
NOTICE' OF WATER RIGHT LOCATION. 
To Whom It May Concern : 

Notice is hereby given that Joseph H. Hutchinson, of 
Silver City, County of Owyhee, State of Idaho, has this 
4th day of May, 1900, appropriated and hereby claim the 
use of the waters of Snake river to the extent of ten 
thousand (10,000) cubic feet per second, flowing at the 
point of intended diversion, which said point of intended 
diversion is particularly described as follows: 

About 10 miles up said Snake river from the town of 
Guffey, Owyhee County, Idaho, at a large lava rock is- 
land, known as the "Rubberneck" rock quarry; and by 
the "Hardie" placer on the Owyhee side, and "Island" 
placer on Ada side of said river. 

That the special purpose or purposes for which said 
water is claimed power for motive, manufacturing, elec- 
trict light, electric power, and other useful and bene- 
ficial purposes, and for irrigation by means of pumping 
and otherwise. 

That the place of intended use is particularly the 
mines near Silver City, Idaho, and also for motive, man- 
ufacturing, mechanical, electric light, electric power, 
and for pumping water for irrigation in the counties of 
Ada, Canon, Owyhee, Lincoln, Cassia and other places 
in Idaho, and perhaps in Oregon. 

Said water is to be diverted by a dam; plans and speci- 
fications of said dam and dam-site will be filed with the 
State Engineer of Idaho. 



vs. Alfred A. Fraser and A. R. Crusen. 149 

That the length of said dam, or width of said dam, 
and full detail plans will be filed with the State Engineer 
as required by law. , 

Nothing in this notice is intended or can be so con- 
strued, as waiving any rights claimed by Water Notice 
of Jan'y 17th, 1900. 

A copy of this notice was duly posted at or near the 
point of intended diversion on the 4th day of May, 1900. 

Witness my hand at Silver City, State of Idaho, this 
19th day of May, 1900. 

Appropriator and Claimant, 

JOSEPH- H. HUTCHINSON. 

State of Idaho, 
County of Owyhee, — ss. 

Joseph H. Hutchinson, of Silver City, county of 
Owyhee, State of Idaho, being first duly sworn, deposes 
and says that he is of lawful age and the appropriator 
and claimant of the water right described in the within 
and foregoing notice, and whose name is subscribed 
thereto. 

That the statements in said notice are true, and that 
the original notice of which the foregoing is a true copy 
was posted in a conspicuous place at or near the point 
of intended diversion at 3 o'clock P. M., the 4th day of 
May, 1900. 

JOSEPH H. HUTCHINSON. 



150 The Trade Dollar Consolidated Min. Co. 

Subscribed and sworn to before me this 19th day of 
May, 1900. I 

EL L, BALLARD, 

Recorder. 
By J. S. St. Clair, 

Deputy. 

Filed May 19th, 1900', at 7 o'clock P. M., at request of 
Jos. H. Hutchinson. 

E. L, BALLARD, 

Recorder. 

By J. S. St. Clair, 

Deputy. 

Recorded in Book 3 of Water Rights, Mill-sites and 
Tunnel-sites, pages 761 and 762, among the records of 
Owyhee County, Idaho. 

State of Idaho, 
County of Owyhee, — ss. 

I, J. S. St. Clair, Ex-officio Recorder in and for the 
county of Owyhee, State of Idaho, do hereby certify that 
I have compared the foregoing copy of notice of location 
of water right, as recorded in this office on the 19th day 
of May, 1900, and of the endorsements thereon, with 
the original records of the same remaining in this office, 
and that the same are correct transcripts therefrom, 
and of the whole of said original records. 

Witness my hand and official seal, this 23d day of 
Nov., 1903. 

[Seal] J. S. ST. CLAIR, 

Ex-officio Recorder. 



vs. Alfred A. Fraser and A. R. Cruscn. 151 

[Endorsed] : No. 245. Certified Copy of Location of 
Water Right by Jos. H. Hutchinson at Swan Falls, 
Idaho. Dated May 19, 1900. Complainant's Exhibit 
"E." Certified Copy of Location of Water Right. Filed 
May 25, 1905. A. L. Richardson, Clerk. 



Complainant's Exhibit "F." 

JOSEPH H. HUTCHINSON 

to 

TRADE DOLLAR CONSOLIDATED 
MINING CO. 



No. 277 



Deed. 

This indenture, made this twenty-third day of June, 
in the year of our Lord one thousand nine hundred, be- 
tween Joseph H. Hutchinson, of Silver City, County of 
Owyhee, State of Idaho, the party of the first part, and 
the Trade Dollar Consolidated Mining Company, a cor- 
poration organized and existing under and by virtue 
of the laws of the State of Kentucky, the party of the 
second part, 

Witnesseth, that the said party of the first part, for 
and in consideration of the sum of one dollar, lawful 
money of the United States of America, to him in hand 
paid by the said party of the second part, the receipt 
whereof is hereby acknowledged, has granted, bargained, 
sold, remised, released and forever quitclaimed, and by 
these presents does grant, bargain, sell, remise, release 
and forever quitclaim unto the said party of the second 



152 The Trade Dollar Consolidated Min. Co. 

part, and to its successors and assigns forever, all the 
right, title, interest, equity and property of every nature 
and kind of the said party of the first part of, in and to 
the following water right and the right to divert and 
appropriate water, and the franchises and privileges 
thereunto belonging, together with the ditches, canals, 
flumes, dams and conduits acquired under and by virtue 
of the following notices of water location, and the rights 
arising out of and by reason of appropriations and di- 
versions made under and by virtue of the same; the 
right to divert and appropriate the waters of Snake river 
at a point about ten miles up said Snake river from the 
town of Guffey, Owyhee County, Idaho, which point is 
more particularly described and identified by a large 
lava rock island near the center of said river at what is 
known as Swan Falls, to the extent of ten thousand 
cubic feet per second of time. Said water right being 
located by Joseph H. Hutchinson, notice of location of 
which is recorded among the records of Owyhee County, 
in the recorder's office, in Book 3 of Water Rights, on 
page 750, an amended or supplemental notice of location 
thereof being of record in said recorder's office, in Book 
3 of Water Rights, on pages 761 and 762, to which refer- 
ence is had for more definite description of said water 
right. 

Together with all and singular, the tenements, here- 
ditaments and appurtenances thereunto belonging, or 
in anywise appertaining, and the reversion and rever- 
sions, remainder and remainders, rents, issues and prof- 
its thereof. 



vs. Alfred A. Fraser and A. R. Orusen. 153 

To have and to hold all and singular, the said prem- 
ises, together with the appurtenances, unto the party of 
the second part, and to its successors and assigns for- 
ever. 

In witness whereof, the said party of the first part 
has hereunto set his hand and seal the day and year 
first above written. 

JOSEPH H. HUTCHINSON. [Seal] 

Signed, sealed and delivered in presence of: 

J. S. ST. GLAIR. 

State of Idaho, 
Oounty of Owyhee, — ss. 

On this 23d day of June, 1900, before me, EL L. Bal- 
lard, Recorder in and for said countj^, personally ap- 
peared Joseph H. Hutchinson, known to me to be the 
person whose name is subscribed to the within and fore- 
going instrument, and acknowledged to me that he exe- 
cuted the same. 

In witness whereof, I have hereunto set my hand and 
affixed my official seal, the day and year in this certifi- 
cate first above written. 

[Seal] E. L. BALLARD, 

Recorder. 

By J. S. St. Clair, 

Deputy. 



154 The Trade Dollar Consolidated Min. Co. 

Filed June 23d, A. D. 1900, at 1:45 o'clock P. M., at 
request of Jos. H. Hutchinson. 

E. L, BALLARD, 
Recorder of Owyhee County. 

By J. S. St. Clair, 

Deputy. 

Recorded in Book "Z" of Deeds, pages 577, 578 and 
579, among the records of Owyhee County, Idaho. 

State of Idaho, 
County of Owyhee, — ss. 

I, J. S. St. Clair, Ex-officio Recorder in and for the 
county of Owyhee, State of Idaho, do hereby certify that 
I have compared the foregoing copy of deed, from Joseph 
H. Hutchinson to the Trade Dollar Consolidated Mining 
Company, and the endorsements thereon, with the orig- 
inal records of the same remaining in this office, and 
that the same are correct transcript therefrom, and of 
the whole of said original records. 

Witness my hand and official seal this 28th day of 
Nov., 1903. 

[Seal] J. S, ST. CLAIR, 

Ex-officio Recorder. 

[Endorsed] : No. 245. Joseph H. Hutchinson to The 
Trade Dollar Consolidated Mining Company. Deed of 
Water Right Locations at Swan Falls. Dated June 
23d, 1900. (Certified Copy.) Complainant's Exhibit 
"P." Deed from Hutchinson to Complainant. Filed 
May 25, 1905. A. L. Richardson, Clerk. 



vs. Alfred A. Fraser and A. R. Crusen. 155 

Complainant's Exhibit "G." 

CERTIFICATE OF CERTIFIED COPY. 

STATE OF IDAHO. 

Office of the Secretary of State. 
I, Will H. Gibson, Secretary of the State of Idaho, do 
hereby certify that the annexed is a full, true and com- 
plete transcript of certified copy of the articles of incor- 
poration and designation of agent of The Trade Dollar 
Mining and Milling Company, which were filed in this 
office on the 31st day of December, 1894; also certified 
copy of amended articles of incorporation of The Trade 
Dollar Mining and Milling Company, changing the cor- 
porate name of said company The Trade Dollar Consoli- 
dated Mining Company, which was filed in this office 
on the 12th day of July, 1899; also certified copy of 
amendment to articles of incorporation of The Trade 
Dollar Consolidated Mining Company ; which was filed in 
this office on the 23d day of June, 1900; also certified 
copy of amendment to articles of incorporation of The 
Trade Dollar Consolidated Mining Company, which was 
filed in this office on the 23d day of June, 1900; also des- 
ignation of agent by The Trade Dollar Consolidated 
Mining Company, which was filed in this office on the 
28th day of April, 1903; also certified copy of amendment 
to articles of incorporation of The Trade Dollar Con- 
solidated Mining Company, which was filed in this office 
on the 14th day of March, 1905, and admitted to record. 

In testimony whereof, I have hereunto set my hand 
and affixed the Great Seal of the State. Done at Boise 



156 The Trade Dollar Consolidated Min. Co. 

City, the capital of Idaho, this 5th day of May, A. D. 
1905. 

[Seal] WILL H. GIBSON, 

Secretary of State. 

ARTICLES OF INCORPORATION 
of The 
TRADE DOLLAR MINING AND MILLING COM- 
PANY. 

The undersigned being- desirous of forming a corpora- 
tion under and in accordance with the laws of the State 
of Kentucky, do hereby adopt the following articles of 
association, to wit: 

First: The name of the corporators are William H. 
Dewey, John M. Patterson, Wilson E. Griffith, Thomas 
B. MeKaig, and William E. Hawley. 

Second: The name of the corporation shall be "The 
Trade Dollar Mining and Milling Company." 

Third: The principal place of business shall be in the 
city of Covington, in Kenton County, State of Kentucky, 
but the corporation proposes to carry on business in the 
State of Idaho and elsewhere, as the nature of the busi- 
ness may require. 

Fourth: The general nature of the business proposed 
to be carried on, in the mining of gold and silver-bearing 
rocks, ores and deposits and other metallic rocks, ores 
and deposits of every kind and description, and the ex- 
traction of gold, silver and other metals therefrom by 
milling and other processes and the vending in the mar- 
ket of the products so obtained, and the doing of all 



vs. Alfred A. Fraser and A. R. Crusen. 157 

other business necessarily and advantageously con- 
nected with all of the above. 

Fifth: The amount of capital stock authorized is two 
millions five hundred thousand ($2,500,000) dollars, di- 
vided into five hundred thousand (500,000) shares of the 
par value of five ($5) dollars each, which said capital 
stock is to be fully paid in property at the date of the 
organization of said corporation. 

Sixth: The corporation will begin business on the six- 
teenth day of June, A. D. one thousand eight hundred 
and ninety-one (1891), and will terminate in twenty-five 
years from that date. 

Seventh: The affairs of the corporation will be con- 
ducted by a Board of Directors consisting of five per- 
sons, i 
Eighth: The officers to be chosen by the Board of 
Directors shall be a president, vice-president, secretary 
and treasurer and an executive committee. 

Ninth: Elections of the Board of Directors shall be 
held annually on the second Monday of January, and 
election of the officers to be chosen by the Board of Di- 
rectors at the first meeting of the Board of Directors 
thereafter. 

Tenth: The Board of Directors from the organization 
of the corporation until the second Monday of January, 
A. D. one thousand eight hundred and ninety-two (1892) 
shall be William H. Dewey, John M. Patterson, Wilson 
E. Griffith, Thomas B. McKaig and William E. Hawley. 
Eleventh: The highest amount of indebtedness or lia- 
bility to which the corporation may at any time subject 



158 The Trade Dollar Consolidated Mm. Go. 

itself shall be two-thirds (§) the amount of its author- 
ized capital stock. 

Twelfth: Private property of stockholders shall be 
exempt from corporate debts. 

Thirteenth: All stock shall be issued full paid and non- 
assessable. 

In testimony whereof the said corporators have signed 
these articles of association this twenty-eighth day of 
May, A. D. one thousand and eight hundred and ninety- 
one (1891). ! 

W. H. DEWEY. 

JOHN M. PATTERSON. 

WILSON E. GRIFFITHS. 

THO'S. B. McKAIG. 

WILLIAM E. HAWLEY. 

State of Pennsylvania, 
Oity of Pittsburgh, — ss. 

Be it remembered that on this twenty-eighth day of 
May, A. D. one thousand eight hundred and ninety-one 
(1891), before me, Edwin G. Ferguson, a notary public, 
resident in said city of Pittsburgh, and duly qualified 
and commissioned by the executive authority and under 
the laws of the State of Pennsylvania to take the ac- 
knowledgments of deeds, etc., personally appeared Will- 
iam H. Dewey, John M. Patterson, Wilson E. Griffiths, 
Thomas B. McKaig and William E. Hawley, to me well 
known to be the individuals named in and who executed 
the foregoing articles of association or incorporation, 
and severally acknowledged that they executed the 
same. , ) 



vs. Alfred A. Fraser and A. R. Crusen. 159 

In testimony whereof I have hereunto set my hand 
and affixed my official seal as such notary public at said 
city of Pittsburgh this twenty-eighth day of May, Anno 
Domini one thousand eight hundred and ninety-one, 1891. 

[Seal] EDWARD FERGUSON, 

Notary Public. 

State of Kentucky, 
Kenton County, — set. 

I, Wes B. Wilson, clerk of the county court for said 
county, do certify that the foregoing articles of incor- 
poration of the Trade Dollar Mining and Milling Com- 
pany were this day produced to me in my office certified 
as above, and left for record. Whereupon the same and 
the foregoing and this certificate have been duly re- 
corded in my office. 

Given under my hand this 4th day of June, 1891. 

WES B. WILSON, 

Clerk. 

By R. A. O'Meara, 

D. C. 
State of Kentucky, 
Kenton County, — set. 

I, Wes B. Wilson, clerk of the county court, within 
and for the county and State aforesaid, the same being 
a court of record, having a seal and having jurisdiction 
of the probate of wills and the appointment and qualifi- 
cation of executors, administrators, guardians and other 
fiduciaries, do hereby certify that the foregoing and 
hereto attached writing contain a full and complete 



160 The Trade Dollar Consolidated Mm. Co. 

copy of the Articles of Incorporation of the Trade Dollar 
Mining and Milling Company as fully as the same ap- 
pears from the records on file in my office. 

In testimony whereof, I have hereunto subscribed my 
name and affixed the seal of said Court at my office in 
Covington, Kentucky, this 24th day of December, A. D. 
1894. 

[Seal] WES B. WILSON, 

Clerk. 
By W. L. White, 

D. O. 

[Endorsed] : Copy Articles of Incorporation of the 
Trade Dollar Mining and Milling Co. Kecorded in book 
3, page 411. 2,50 due. 

Know All Men by These Presents: That The Trade 
Dollar Mining and Milling Company, a corporation or- 
ganized and existing under the laws of the State of 
Kentucky, does hereby, in pursuance of the laws of the 
State of Idaho, make this certificate, and does hereby 
designate Owyhee county, in the State of Idaho, as the 
county in which the principal place of business of said 
corporation in said State of Idaho is and shall be con- 
ducted, and does hereby designate James Hutchinson, 
residing at Silver City in said Owyhee county as the 
authorized agent of said corporation in said State of 
Idaho, upon whom process issued by authority of or 
under any law of the State of Idaho, may be served as 
provided by article XI, section 10, of the constitution 
of said State of Idaho. 



vs. Alfred A. Fraser and A. R. Crusen. 161 

And the said Trade Dollar Mining and Milling Com- 
pany, desiring and intending to conform in all respects 
to the constitution and laws of said State, does hereby 
accept the provisions of the constitution of the State of 
Idaho for all the intents and purposes contemplated by 
the provisions thereof, relating to such acceptance, by 
other than municipal corporations. (Article XI, sec- 
tion 7.) 

In witness whereof, the said Trade Dollar Mining and 
Milling Company has caused this certificate and accept- 
ance to be executed, acknowledged and delivered in its 
name and on its behalf, by its president, and to be at- 
tested by its secretary, and hath caused its corporate 
seal to be hereunto affixed, at Pittsburgh, in the county 
of Alleghany and State of Pennsylvania, this 20th day 
of December, 1894. 

[Seal] TRADE DOLLAR MINING & MILLING 

CO., 

By M. J. GUFFEY, 

President. 
Attest: THO'S. B. McKAIG, 
Secretary. 

State of Pennsylvania, 
County of Allegheny, — ss. 

On this 20th day of December, in the year 1894, before 
me, Geo. D. Prentice,, a notary public in and for said 
county, in the State aforesaid, personally appeared 
James M. Guffey, known to me to the president of the 
corporation that executed the within and foregoing in- 



162 The Trade Dollar Consolidated Min. Co. 

strument, and acknowledged to me that such corporation 
executed the same. I 

In witness whereof, I have hereunto set my hand and 
affixed my notarial seal this twentieth day of December, 
1894. 

GEO. D. PRENTICE, [Seal] 
Notary 'Public. 
My commission expires on the 17th day of July, 1898. 

[Endorsed] : Articles of Incorporation of the Trade 
Dollar Mining and Milling Company. Appointment of 
Agent, and Acceptance of Constitution. Department of 
State. Secretary's office. Filed this 31st day of De- 
cember, 1894, and recorded in book "A" of Foreign In- 
corporations, on page 489. Records of the State of 
Idaho. James F. Curtis, Secretary of State. 

A COPY OF THE AMENDED ARTICLES OF INCOR- 
PORATION OF THE TRADE DOLLAR MIN- 
ING AND MILLING COMPANY. 

Filed in the Office of the Secretary of State, March 24th, 

1899. 

Know All Men by These Presents: That the Articles 
of Incorporation of the Trade Dollar Mining and Milling 
Co., a corporation heretofore created, organized and now 
existing under the laws of the State of Kentucky, are 
hereby amended as follows: 

1st. The name of the corporation shall be "The Trade 
Dollar Consolidated Mining Company,'' and by such 
name said corporation shall in the future be known, and 



vs. Alfred A. Fraser and A. R. Crusen. 163 

may contract and be contracted with, plead and be im- 
pleaded, and transact all and singular its business of 
every kind. 

2d. The capital stock of said company shall be and 
is hereby increased from two million five hundred thou- 
sand dollars ($2,500,000.00) to four million dollars 
(14,000,000.00), divided into eight hundred thousand 
(800,000) shares of the denomination of five dollars ($5) 
each. j 

3d. The time for holding the annual meeting of the 
stockholders of said corporation shall be and is hereby 
fixed for the second Tuesday in February of each year 
instead of the second Monday in January of each year. 
This is done by virtue of the written consent of the 
stockholders of said corporation, representing more 
than two-thirds of its capital stock. 

Witness the hand of J. M. Guffey, President and Di- 
rector in said corporation, and Aaron French, M. Mur- 
phey, W. H. Dewey, EL H. Jennings and A. W. Mellon, 
directors in said corporation, and being the directors 
thereof. 

J. M. GUFFEY, President. 

AARON FRENCH, Director. 

K. MURPHEY, Director. 

W. H. DEWEY, Director. 

El H. JENNINGS', Director. 

A. W. MELLON, Director. 



164 The Trade Dollar Consolidated Min. Co. 

The State of Pennsylvania, 
Oounty of Allegheny, — ss. 

Be it known that on this 10th day of March, eighteen 
hundred and ninety-nine, personally appeared before 
the undersigned notary public, in and for the county and 
State aforesaid, J. M. Guffey, Aaron French, M. Mur- 
phey, W. H. Dewey, E. H. Jennings and A. W. Mellon, 
the parties who signed the foregoing instrument of writ- 
ing 1 and acknowledged the same to be their voluntary 
act and deed. 

Witness my hand and seal of office this 10th day of 
March, eighteen hundred and ninety-nine. 

[Seal . WALTER L, MEKWIN, 

Notary Public. 

State of Kentucky, 
Kenton County, — ss. 

I, Alex Davezac, clerk of the county court for the 
county aforesaid, do hereby certify that the foregoing 
amended articles of incorporation of the Trade Dollar 
Mining and Milling Co., was this day presented to me 
in my office, certified as above and left for record. 
Whereupon, the same and the foregoing and this cer- 
tificate have been duly recorded in my office. 

Given under my hand this 13th day of March, in the 
year 1899'. 

ALEX DAVEZAC, 

Clerk. 
By Eugene H. Jonas, 

D. O. 



vs. Alfred A. Fraser and A. R. Crusen. 165 

State of Kentucky, 
Kenton County, — set. 

I, Alex Davezac, clerk of the county court within and 
for the county and State aforesaid, the same being a 
court of record, having a seal and having jurisdiction 
of the probate of wills and the appointment and quali- 
fication of executors, administrators, guardians and 
other fiduciaries, do hereby certify that the foregoing 
and hereto attached writing contain a full and complete 
copy of the Amended Articles of Incorporation of the 
Trade Dollar Mining and Milling Company as fully as 
the same appears from the records on file in my office. 

In testimony whereof, I have hereunto subscribed my 
name at my office in Covington, Kentucky, this 14th day 
of March, A. D. 1890. 

ALEX DAVEZAC, 

Clerk. 

By Eugene H. Jonas, 

D. C, 

Commonwealth of Kentucky, 
Office of Secretary of State. 

I, Chas. Finley, Secretary of State for the Common- 
wealth aforesaid, do hereby certify that the foregoing 
writing has been carefully compared by me with the 
original on file in this office, whereof it purports to be 
a copy, and that it is a true and exact copy of the same. 

In testimony whereof, I hereunto sign my name, and 



166 The Trade Dollar Consolidated Min. Co. 

cause my official seal to be affixed. Done at Frankfort, 
this 6th day of May, A. D. 1899. 

[Seal] CHAS. FINLEY, 

! Secretary of State. 

By E. E. Wood, 
Assistant Secretary of State. 
(Ten cents U. S. Revenue Stamps, 5/6/99.) 

Filed May 15th, 1899, at 9 o'clock A. D., at the request 
of Thos. B. McKaig. 

E. L. BALLARD, 
Recorder of Owyhee County. 

State of Idaho, 
County of Owyhee. 

I, E. L. Ballard, county recorder of Owyhee County, 
State of Idaho, do hereby certify that I have compared 
the foregoing copy of the Amended Articles of Incorpora- 
tion of the Trade Dollar Mining and Milling Company 
and of the endorsements thereon with the original rec- 
ords of the same remaining in this office, and that the 
same are correct transcript therefrom, and of the whole 
of said original records. 

Witness my hand and official seal this 20th day of 
June, 1809. 

[Seal] E. L. BALLARD, 

County Recorder. 

By J. S. St. Olair, 

Deputy. 

[100 I. R. Stamp Attached and Canceled.] 



PS. Alfred A. Fraser and A. R. Crusen. 167 

[Endorsed]: Copy of The Amended Articles of Incor- 
poration of the Trade Dollar Consolidated Mining Com- 
pany. 

Department of State, 
Secretary's Office. 

Filed this 12th day of July, 1899, at 11:00 o'clock A. M. 
and recorded in book "F" of For. Incorp., on page 538, 
Records of the State of Idaho. 

M. PATRIE, 

Secretary of State. 

By W. H. Gibson, 
CO. 

[Endorsed] : Amended Articles of Incorporation of 
The Trade Dollar Mining and Milling Co. March 14, 
1899. 

AMENDMENT OF ARTICLES OF INCORPORATION 
OF THE TRADE DOLLAR CONSOLIDATED 
MINING COMPANY. 

Know All Men By These Presents: That at a meet- 
ing of the Board of Directors of the Trade Dollar Con- 
solidated Mining Co., held on the 12th day of October, 
1899, it was resolved that the Articles of Incorpora- 
tion of said Company be amended so that the capital 
stock of said company shall be five million dollars, di- 
vided into shares of five dollars each, instead of four 
million dollars, and said resolution was afterward con- 



168 The Trads Dollar Consolidated Min. Co. 

sented to in writing by the owners of more than two- 
thirds of the capital stock of said company. 

These presents therefore witness that the Articles of 
Incorporation of said company are hereby changed and 
amended so that the capital stock thereof shall be five 
million dollars divided into shares of five dollars each. 

J. M. GUFFEY, Director. 
A. FRENCH, Director. 

E. H. JENNINGS 1 , Director. 
JOHN NEfWEiLL, Director. 
ANDREW W. MEiLLON, Director. 
M. MURPHY, Director. 



State of Pennsylvania, 
Allegheny County. 

Before me, a notary public in and for the county 
aforesaid, this day came J. M. Guffey, A. French, E. H. 
Jennings, John Newell and Andrew W. Mellon directors 
of the Trade Dollars Consolidated Mining Company, 
and then and there presented to me in my office, the 
foregoing amendment to the Articles of Incorporation 
of said company, and then and there signed and ac- 
knowledged the same to be their act and deed. 

Witness my hand and seal of office this the 12th day 
of October, 1809. 

[Seal] WALTER L. MERWIN, 

[Stamp] Notary Public. 



vs. Alfred A. Fraser and A. R. Crusen. 169 

Pennsylvania, 
Philadelphia, — ss. 

Before me, a notary public for the commonwealth 
of Pennsylvania, residing 1 in the city of Philadelphia, 
personally appeared the above-named Michael Murphy, 
and in due form of law acknowledged the within or 
aforegoing indenture to be his act and deed, and desired 
the same might be recorded as such. 

^Yitness my hand and notarial seal, this, the 18th day 
of Oct., 1899. 

[Seal] PHILIP DONOHUE, 

[Stamp] Notary Public. 

State of Kentucky, 
Kenton County, — set. 

I, Alex Davezac, clerk of the county court, for the 
County and State aforesaid, do hereby certify that the 
foregoing amendment of Articles of Incorporation of 
the Trade Dollar Consolidated Mining Company were 
this day presented to me in my office, certified as above, 
and left for record. Whereupon, the same and the 
foregoing certificates, and this certificate duly stamped 
as required by an Act of Congress, have been duly re- 
corded in my office. 

Given under my hand this 20th day of Oct., 1899. 

AliEX DAVEZAC, 

Clerk. 

[Stamp] By Alb. Davezac, 

D. C. 



170 The Trade Dollar Consolidated Min. Co. 

State of Kentucky, 
Kenton County, — ss. 

I, Alex Davezac, clerk of the county court, within 
and for the county and State aforesaid, the same being 
a court of record having a seal and having jurisdiction 
of the probate wills, and the appointment and quali- 
fication of executors, administrators, guardians and 
other fiduciaries, and of the record of Articles of In- 
corporation, do hereby certify that the foregoing and 
hereto attached writing contain a full and complete 
copy of the amendment to Articles of Incorporation of 
the Trade Dollar Consolidated Mining Company, as 
fully as the same appears from the records on file in 
my office. 

In testimony whereof, I have hereunto subscribed my 
name at my office in Covington, Kentucky, this 2d day 
of June, A. D., 1900. 

ALEX. DAVEZAC, 

Clerk. 
By Alb. Davezac, 
D. C. 



(10 cents U. ft Rev. Stamp, A. D., 6/1/1900.) 

[Endorsed] : Certified Copy of Amendment to Arti- 
cles of Incorporation of the Trade Dollar Consolidated 
Mining Company. 

Recorded in I. B. No. 5, Page 100, Covington Office. 

Fees $1.35 due by Harvey Myers, Atty. 



vs. Alfred A. Fraser and A. R. Crusen. 171 

Department of State, 
Secretary's Office. 

Filed this 23d day of June, 1900, at 9 o'clock A. M., 
Records of the State of Idaho. 

ML PATRIE, 
Secretary of State. 
By W. H. Gibson, 

Ct C. 

[Endorsed] : Amendment of October 12, 1899. 

No. 275. 
AMENDMENT TO ARTICLES OF INCORPORATION 
OF THE TRADE DOLLAR CONSOLIDATED 
MINING COMPANY. 

Know All Men By These Presents: That by virtue of 
a resolution adopted by the stockholders of the Trade 
Dollar Consolidated Mining Company at a meeting of 
said stockholders held on the 15th day of May, 1900, 
stockholders representing more than two-thirds of the 
total capital stock of said company voting in favor 
thereof, the Articles of Incorporation of this company 
are now hereby amended, so that the capital stock of 
this company is increased 200,000 shares of $5.00 each, 
making a total increase in the capital stock of $1,000,- 
000. 

Witness the hands of the Directors of said company 
this day of 15th day of May, 1900. 

[Seal] J. M. GUFFEY. 

E. H. JENNINGS. 

M. K. McMULLEN. 

N. F. OLARK. 



172 The Trade Dollar Consolidated Mm. Co. 

State of Pennsylvania, 
County of — < 9 — ss. 

I, Geo. D. Prentice, a notary public in and for the 
County and State aforesaid do hereby certify that the 
foregoing amendment to the Articles of Incorporation 
of the Trade Dollar Consolidated Mining Company, was 
this 16th day of May, 1900, presented to me in said 
County and State by J. M. Guffey, E. H. Jennings, M. K. 
McMullen & N. F. Clark, Directors of said corporation, 
and personally known to me, and each of them did then 
and there acknowledge the execution and delivery of 
same to be their voluntary act and deed. 

Witness my hand and seal this 16th day of May, 1900. 

[Seal] GEO. D. PEEiNTICE, 

Notary Public. 
My Commission expires Jany. 19th, 1903. 

[U. S. l(ty Stamp ] 
State of Kentucky, 
Kenton County, — set. 

I, Alex. Davezac, clerk of the County Court for the 
county and State aforesaid, do hereby certify that the 
foregoing: amended articles of incorporation of the 
Trade Dollar Consolidated Mining Company was this 
day presented to me in my office, certified as above, and 
left for record. 

Whereupon, the same and the foregoing certificate, 
and this certificate, duly stamped as required by an Act 
of Congress have been duly recorded in my office. 



vs. Alfred A. Fraser and A. R. Crusen. 173 

Given under my hand this 19th day of May, in the 
year 1900. 

ALEX DAiVEZAO, 

Clerk. 
By Alb. Davezac, 

D. C. 
[U. S. 10^ Stamp ] 

State of Kentucky, 
Kenton County, — ss. 

I, Alex Davezac, clerk of the County Court within 
and for the county and State aforesaid, the same being 
a court of record, having a seal and having jurisdiction 
of the probate of wills and the appointment and quali- 
fication of executors, administrators guardians and 
other fiduciaries, and of the record of Articles of Incor- 
poration, do hereby certify that the foregoing and here- 
to attached writing contain a full and complete copy of 
the Amendment to Articles of Incorporation of the 
Trade Dollar Consolidated Mining Company, as fully as 
the same appears from the records on file in my office. 

In testimony whereof, I have hereunto subscribed my 
name at my office, in Covington, Kentucky, this 1st day 
of June, A, D., 1900'. 

ALEX. DAVEZAC, 
, Clerk. 

By Alb. Davezac, 

D. C, 

[10 cents U. S. Rev. Stamp, A. D. 6/2/1000.] 



174 The Trade Dollar Consolidated Min. Co. 

[Endorsed] : Certified Copy of Amendment to Articles 
of Incorporation of the Trade Dollar Consolidated Min- 
ing Co. Record in I. B. No. 5, Page 118. Covington 
Office. Fees $1.35 due by Harvey Myers, Atty. 

Department of State. 
Secretary's Office. 

Filed this 28d day of June, 1900, at 9:00 o'clock A. M. 

M. PATRIE, 
Secretary of State. 
By W. H. Gibson, 

C. C. 
[Endorsed] : Amendment of May 15, 1900. 

DESIGNATION OF AGENT, AND ACCEPTANCE OF 
THE PROVISIONS OF THE CONSTITUTION OF 
THE STATEi OF IDAHO. 

Know All Men by These Presents: That The Trade 
Dollar Consolidated Mining Company, a corporation or- 
ganized and existing under the laws of the State of Ken- 
tucky having filed in the office of the Secretary of State 
of the State of Idaho a duly authenticated copy of its 
Articles of Incorporation, does hereby, in pursuance of 
the laws of the State of Idaho, make this certificate, 
and does hereby designate Owyhee County, in the State 
of Idaho, as the county in which the principal place of 
business of said corporation in said State of Idaho is 
and shall be conducted, and does hereby designate Fred- 
eric Irwin residing at Dewey in said Owyhee County, 
as the authorized Agent of said corporation in said 
State of Idaho, upon whom process issued by authority 



.1. Fraser and A. R. Ci-uscn. 175 

of, or under any law of the State of Idaho, may be 
served, as provided by the Constitution and laws of said 
State of Idaho. 

And the said Trade Dollar Consolidated Mining Com- 
pany desiring and intending to conform in all respects 
to the constitution and laws of said State, and to avail 
itself of the rights, privileges and immunities guaran- 
teed by said constitution and laws, does hereby accept 
the provisions of the constitution of the State of Idaho 
for all the intents and purposes contemplated by the 
provisions thereof, relating to such acceptance by other 
than municipal corporations. (Article XI, section 7, 
Constitution of Idaho.) 

In witness whereof, the said Trade Dollar Consoli- 
dated Mining Company has caused this certificate and 
acceptance to be executed, acknowledged and delivered 
in its name and on its behalf, by its President, and to be 
attested by its Secretary, and hath caused its corpor- 
ate seal to be hereunto affixed at Pittsburg in the 
County of Allegheny and State of Pennsylvania this 
23d day of April, 1903. 

TRADE DOLLAR CONSOLIDATED MINING CO. 

[Corporate Seal] By J. ML GUFFEY, 

President. 
Attest: THOS. B. McKAIG, 

Secretary. 

State of Pennsylvania, 
County of Allegheny.— ss. 

On this 23d day of April, in the year 1903, before me, 
Geo. D. Prentice, a notary public in and for said county, 



176 The Trade Dollar Consolidated Min. Co. 

in the State aforesaid, personally appeared J. M. Guf- 
fey, known to me to be the President of the corporation 
that executed the within and foregoing instrument, and 
acknowledged to me that such Corporation executed 
the same. 

In witness whereof, I have hereunto set my hand and 
affixed my notarial seal this twenty-third day of April, 
1903. 

[Notarial Seal] GEO. D. PRENTICE, 

Notary Public. 

My commission expires on the 19th day of January, 
1907. 

[Endorsed] : Acceptance of the Constitution and Des- 
ignation of Agent by a Foreign Corporation. The 
Trade Dollar Consolidated Mining Co. 

State of Idaho, 
Department of State. 

Filed in the office of the Secretary of State, April 2®, 
1903, and recorded in Book 1 "K" of Foreign Corpora- 
tions, at page 583. 

WILL H. GIBSON, 
Secretary of State. 

AMENDMENT TO ARTICLES OF INCORPORATION 
OF THE TRADE DOLLAR CONSOLIDATED 
MINING COMPANY. 

Know All Men By These Presents: That at a meeting 
of the Board of Directors of the Trade Dollar Consoli- 
dated Mining Company, held the 13th day of February, 



vs. Alfred A. Fraser and A. R. Crusen. Ill 

1905 ( the consent in writing of more than two-thirds of 
the capital stock thereto having been filed), it was re- 
solved that the Articles of Incorporation be amended 
by inserting; after the words "And the extraction of 
gold, silver and other metals therefrom by milling and 
other processes," where the same occur in Article Four 
thereof, the following words, to wit: "And the develop- 
ment of electrical power for that purpose and the pur- 
pose of sale, rental and distribution to the general pub- 
lic for all useful and beneficial purposes." 

These presents therefore witness that the Articles of 
Incorporation of the said company are hereby changed 
and amended by adding to Section Four the words 
above enumerated, but not otherwise. 

Witness the hands of the majority of the. Board of Di- 
rectors of the said Company this 13th day of February, 
1905. 

E. H. JEiNNINIGSj, Director. 

M. K. McMULLEN, Director. 

GEO. B. MOTHEiREL, Director. 

N. F. CLARK, Director. 

State of Pennsylvania, 
Allegheny County. 

Before me, a notary public in and for the county afore- 
said, this day came, E. H. Jennings, Director, M. K. Mc- 
Mullen, Director, Geo. B. Motherel, Director, N. D. 
Clark, Director, being more than a majority of the Di- 
rectors of the Trade Dollar Consolidated Mining Com- 
pany, and then and there presented to me in the county 
and State aforesaid, the foregoing amendment to the 



178 The Trade Dollar Consolidated Min. Co. 

Articles of Incorporation of said company, and then and 
there each separately signed and acknowledged same 
to be his act and deed. 

Witness my hand and Notarial Seal this 13th day of 
February, 1905. 

KOBEIRT J. DODDS, 

Notary Public. 

My Commission expires February 27th, 1905. 

State of Kentucky, 
Kenton County. 

I, Jno. C. B. Yates, clerk of the County Court for the 
county aforesaid, do hereby certify that the foregoing 
amended Articles of Incorporation of the Trade Dollar 
Consolidated Mining Company were this day presented 
to me in my office, certified as above and left for record. 

Whereupon, the same and the foregoing and this cer- 
tificate have been duly recorded in my office. 

Given under my hand this Feb. 21st, 1905. 

JNO. C. B. YATES, 
Olerk. 
Gabriel Davezac, 

D. C. 

State of Kentucky, 
Kenton County, — ss. 

I, Jno. C. B. Yates, clerk of the County Court within 
and for the county and State aforesaid, the same being 
a Court of Record, having a seal and having jurisdic- 
tion of the probate of wills and the appointment and 



vs. Alfred A. Fraser and A. R. Crusen. 179 

qualification of executors, administrators, guardians 
and other fiduciaries do hereby certify that the forego- 
ing and hereto attached writing contain a full and com- 
plete copy of the Amended Articles of Incorporation of 
the Trade Dollar Consolidated Mining Company, as fully 
as the same appears from the records on file in my office. 
■In testimony whereof, I have hereunto subscribed 
my name and affixed the seal of said Court at my office 
in Covington, Kentucky, this 21st day of February, A. D. 
1905. 

JNO. C. B. YATES, 

Clerk. 
Gabriel Davezac, 

D. C. 
Filed and certificate issued Feb'y 28th, 1905. 

H. V. McCHESNEY, 

Sec'y State. 
Commonwealth of Kentucky. 
Office of Secretary of State. 

I, H. V. McChesney, Secretary of State for the com- 
monwealth aforesaid, do hereby certify that the fore- 
going writing has been carefully compared by me with 
the original on file in this office, whereof it purports to 
be a copy, and that it is a true and exact copy of the 
same. 

In testimony whereof, I hereunto sign my name, and 
have caused my official seal to be affixed. 

Done at Frankfort, this 28th day of February, 1905. 

[Seal] H. V. McCHESNEY, 

Secretary of State. 



180 The Trade Dollar Consolidated Mm. Co. 

Filed March 10th, 1905, at 3:45 o'clock P. M., at re- 
quest of Frederic Irwin. 

J. S. ST. CLAIR, 
Ex-officio Recorder. 
By J. E. Dickens, 

Deputy. 

Recorded in Book 1 of Articles of Incorporation, page 
207 et seq., among the records of Owyhee County, Idaho. 

State of Idaho, 
County of Owyhee, — ss. 

I, J. S. St. Clair, ex-officio recorder in and for the 
county of Owyhee, State of Idaho, do hereby certify that 
1 have compared the within and foregoing copy of 
Amendment to Articles of Incorporation of the Trade 
Dollar Consolidated Mining Company, and of the en- 
dorsements thereon, with the original records of the 
same remaining in this office, and that the same are cor- 
rect transcripts therefrom, and of the whole of said or- 
iginal records. 

In witness whereof, I have hereunto set my hand and 
affixed my official seal this 11th day of March, 1905. 

[Seal] J. S. ST. CLAIR> 

1 Ex-officio Recorder. 

[Endorsed] : Amendment to the Articles of Incorpora- 
tion of the Trade Dollar Consolidated Mining Company. 



vs. Alfred A. Fraser and A. R. Crusen. 181 

Department of State. 
Secretary's Office. 

Filed this 14th day of March, 1905, at 5 o'clock P. M. 

WILL H. GIBSON, 

Secretary of State. 

[Endorsed] : Amendment to the Articles of Incorpora- 
tion of the Trade Dollar Consolidated Mining Company. 
February 13, 1905. 

[Endorsed]: No. 245. Complainant's Exhibit "G." 
Filed May 25, 1905. A. L. Richardson, Clerk. 



In the Circuit Court of the United States, in and for the 
District of Idaho, Central Division. 

THE TRAD© DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 

vs. 

ALFRED A. FRASER and A. R. 

CRUSEN, 

Defendants. / 

Depositions. 
Depositions of witnesses in behalf of plaintiff, taken 
February 24th, 1904. 



182 The Trade Dollar Consolidated Mm. Co. 

In the Circuit Court of the United States, in and for the 
District of Idaho, Central Division. 

THE TRADE! DOLLAR CONSOLI- 
DATED MINING COMPANY (a Cor- 
poration), 

Complainant, 
vs. 

ALFRED A. FRASER and A. R. 
CRUSEN, 

Defendants. 

Stipulation as to Taking Depositions. 
It is hereby stipulated in the above-entitled cause, as 
follows: l 

I. The testimony in said cause shall be taken orally 
before special examiners, and shall be taken down by a 
stenographer to be selected by the several examiners 
and afterwards reduced to typewriting. 

II. That A. L. Richardson is to be appointed special 
examiner to take testimony at Boise City and vicinity, 
J. G. Bily, notary public, is to be appointed special ex- 
aminer to take testimony at Pittsburg, Pennsylvania, 
and vicinity, and if testimony is required to be taken in 
other places, such other special examiners shall be ap- 
pointed as may be necessary. 

III. Formal notice of the taking of the testimony 
is hereby waived, and shall be at such times within the 
period required by the Equity Rules for the taking of 
the same, and at such places as may be hereafter ar- 
ranged to suit the convenience of the solicitors of the 
parties. 



vs. Alfred A. Fraser and A. R. Crnsen. 183 

Dated at Boise City, Idaho, this 4th day of February, 
1905. 

(Signed) JOHNSON & JOHNSON, 

Solicitors for Complainant. 
W. E. BORAH, 

Solicitors for Defendants. 

[Endorsed]: (Copy.) In the Circuit Court of the 
United States in and for the District of Idaho, Central 
Division. The Trade Dollar Consolidated Mining Com- 
pany, a Corporation, Complainant, vs. A. A. Fraser and 
A. R. Crusen, Defendants. Stipulation. Filed Febru- 
ary 6, 1905. A. L. Richardson, Clerk. 

In the Circuit Court of the United States, in and for the 
District of Idaho, Central Division. 



THE TRADE DOLLAR CONSOLI 
DATED ft 
poration), 



DATED MINING COMPANY (a Cor- l f 

I 



Complainant, I 

vs. 

ALFRED A. FRASER and A. R, 

CRUSEN, 

Defendants./ 

Depositions of witnesses taken in the above-entitled 
case in pursuance of the stipulation hereunto annexed, 
and notice to counsel in accordance therewith, at the 
office of J. C. Bily, Esq., notary public, the examiner 
named in said stipulation, in the Carnegie Building, city 
of Pittsburgh, Pennsylvania, on the 24th day of Febru- 



184 The, Trafa Dollar Consolidated Min. Go. 

ary, A. D. 1905, between the hours of 10' A. M. and 12 
noon. 

Present: Messrs. Reed, Smith, Shaw & Beal, for the 
plaintiff. 

Defendants not represented by counsel. 

J. C. Bily, Esq., Special Eixaminer. 

THOMAS TAYLOR JOHNSTON, a witness produced 
on behalf of the complainant, being duly sworn, testified 
as follows: 
i Direct Examination. 

(By Mr. SHAW.) 

Q. Where do you live, Mr. Johnston? 

A. Evanston, Cook County, Illinois. 

Q. What is your business? 

A. Civil engineer. 

Q. How long have you been pursuing your profes- 
sion? 

A. I am now in the twenty-eighth year. 

Q. Are you the graduate of any polytechnic school? 

A. The Renssaler Polytechnic Institute, Troy, New 
York. 

Q. When did you graduate? A. In 1877. 

Q. Since that time have you been devoting your at- 
tention to any particular branch of the profession, and 
if so, what branch or branches? 

A. I have since devoted myself to hydraulic engineer- 
ing and its collateral branches. 

Q. And in connection with what works and at what 
places? 



vs. Alfred A. Fraser and A. R. Crusen. 185 

(Deposition of Thomas Taylor Johnston.) 

A. My first work in 1878 was in the construction of 
the Babcock Lakes, in Washington City. In July of 
1878 I became connected with the United States En- 
gineer Service in relation to the improvement of the 
Mississippi and Missouri rivers, and continued in that 
service until June, 1886. The latter two years in the 
service I devoted to a study of the physical characteris- 
tics of the rivers of the Mississippi valley. In June of 
1886 I was invited to a position with the Chicago Drain- 
age and Water Supply Commission in relation to the 
earlier plans for the Chicago Drainage Canal. In 1887 
I became Assistant City Engineer of Chicago in charge 
of the water supply. In May of 1888 I became Chief 
Engineer for the water supply of Memphis, Tennessee. 
In 1891 I became Consulting Engineer for the same 
water supply, and have remained as such most of the 
time since, and am now so engaged. In April of 1890 I 
became principal assistant engineer on the work of con- 
structing the Chicago Drainage Canal, and remained in 
that service subsequently as assistant chief engineer 
and consulting engineer until July of 1900, excepting 
for the year 1891. In 1891 I undertook the designing 
as consulting engineer of the construction of the water 
supply of Savannah, Georgia, which work was com- 
pleted in 1893. In 1898 I undertook the design and con- 
struction of the Snoqualmie Falls Water Driven Elec- 
tric Power Plant, near Seattle, Washington. I com- 
pleted that work in the summer of 1900. In 1898 I also 
undertook the design and construction of the water 



186 The Trade Dollar Consolidated Mm. Go. 

(Deposition of Thomas Taylor Johnston.) 

driven electric power plant of the Economy Light and 
Power Plant of Joliet, Illinois. In the year 1900 I un- 
dertook the design and construction of the water driven 
electric power plant at Siwan Falls on the Snake river in 
Idaho. In 1903 I undertook the design and construction 
of a two-thousand horse power water driven electric 
power plant on the Saint Joseph river, South Bend, In- 
diana. In the year 1904 I constructed an eight hundred 
horse-power water driven electric power plant at Elk- 
hart, Indiana, on the Saint Joseph river. In 1901-1902 
and in the year 1904 I roinodeled the water driven elec- 
tric power plant at Kankakee on the Kankakee river in 
Illinois. I have at several times rendered service in 
relation to the planning and extension of various water- 
power, water supply and irrigation works. 

Q. Are you familiar with the property of the Trade 
Dollar Consolidated Mining Company near Boise, Idaho? 

A. Yes, sir. 

Q. How long have you known that property? 

A. I first examined the site of that property about 
September 1st, 1899. I again saw the site of the prop- 
erty in the spring of 1900, at which time I undertook the 
preparation of the plans as finally constructed. 

Q. Did you have any other connection with the con- 
struction of the dam and plant? 

A. I supervised the construction. 

Q. Covering what period of time? 

A. From the spring of 1900 until the spring of 1901, 
when the plant was put in operation, and in the spring 



vs. Alfred A. Fraser and A. R. Crusen. 187 

(Deposition of Thomas Taylor Johnston.) 

of 1901, I was at the site of the work altogether be- 
tween two and three months. 

Q. Will you describe, if you please, briefly the char- 
acter of the construction of that dam and equipment? 

A. The physical part of the work comprises a dam 
across the Snake river located on a lava rock formation, 
and consisting of two parts which are separated at the 
middle of the river by a small island. That part of the 
construction southward from the island is a timber crib 
dam substantially twelve feet high above its founda- 
tions and anchored into the left bank of the river in a 
boulder formation. That part of the work northward 
from the island is built of concrete masonry, at the 
southerly end of which is located a water driven electric 
power plant. This branch of the dam is anchored to 
the north bank of the river against the lava rock. This 
part of the dam rises substantially thirty feet above 
its foundations. The waterfall created by the dam is 
substantially eighteen to nineteen feet at low water, and 
a little less at high water. The mechanical equipment 
comprises four seventy-two inch vertical MeCormick 
cylinder gate water-wheels driving three hundred kila- 
watt alternating current generators. Each one of the 
water-wheels was designed to have sufficient capacity 
to operate one of the generators, the wheels being so 
disposed in their connections that if all three generators 
were operated there would be one spare water-wheel. 
The designing features of the structure involve two 
salient considerations; first, the height of the dam was 



188 The Trade Dollar Consolidated Mm. Go. 

(Deposition of Thomas Taylor Johnston.) 

so determined that the water fall created would be 
proper for having one water-wheel operate one genera- 
tor, that water-wheel being the largest commercially 
available. That is, if the dam were of less height the 
water fall would be so little that more than one water- 
wheel would have been needed to operate the generator. 
Had the size of the generator been larger the height 
of the dam would have had to be higher, and conversely 
if the generator had been smaller. The second salient 
feature appertains to the length of that part of the dam 
southerly from the island over the top of which the 
whole flow of the river must pass, since that part of the 
dam northward from the island was raised to a height 
above high water. The length of the branch of the dam 
southward from the island was made such as to pre- 
serve the magnitude of the waterfall substantially the 
same at low water and high-water. The side of the 
dam developed naturally a waterfall of approximately 
four or five feet, at low water, within a distance up and 
down stream of several hundred feet. Within the same 
distance up and down stream at high water there was 
substantially no waterfall. 

Q. Mr. Johnston, have you examined the map or plan 
attached to the application of the defendants for a per- 
mit to divert water from the Snake river? 

A 1 . I have. In regard to the physical structure of 
the dam, I would also state that in that branch of the 
dam extending northward from the island the power- 
house is first passed, and then that part of the structure 



vs. Alfred A. Fraser and A. R. Cruse n. 189 

(Deposition of Thomas Taylor Johnston.) 

which might be called the dam proper. This part of 
the structure is in the form of a vertical wall five feet 
thick, supported at the rear by concrete masonry butt- 
resses five feet thick. It is a part of the design of the 
structure that in the future the spaces between these 
buttress walls may be occupied by water-wheels in 
case any extension of the mechanical part of the power 
plant need be made. 

Q. Does the plant as constructed contemplate the 
installation of additional machinery and fixtures other 
than what is already there? 

A. It does, and it was considerations of that char- 
acter that led to the construction of the concrete mas- 
onry dam, the concrete masonry part of the dam. 

|Q. You have also, I believe, read the bill of complaint 
filed in this case? A'. I have. 

Q. Would the construction of the work indicated in 
the defendants' application for permit have any effect 
upon the plaintiff's dam and property? 

A. It would. 

Q. I wish you would tell us now particularly in what 
respect the carrying out of this work would affect the 
plaintiff's dam and other property? 

A. The diversion of water around one or both ends 
of the dam through canals such as proposed would have 
the effect of lowering the level of the water above the 
dam, without in any way altering the level of the water 
below the dam. This would result in the diminution 
of the amount of waterfall, which in turn would lead 



m The Trade Dollar Consolidated Mm. Co. 

(Deposition of Thomas Taylor Johnston.) 

to diminishing the power output practicable and proper 
from the mechanical installation now installed in the 
power-house, and this in turn would lead to the necessity 
for the installation of other water-wheels and a radical 
rearrangement of the disposition of the mechanical in- 
stallation if it be desired to maintain the capacity re- 
sulting from the present mechanical installation. It 
will be evident that the diversion of water around the 
end of the dam carried to its final conclusion would lead 
to the restoration of what was formerly the natural fall 
of the river at the site of the dam notwithstanding the 
presence of the dam, such a result being brought about 
it would not be practicable to develop as much power 
with the whole flow of the water as that which is now 
developed by the existing mechanical installation. 

Q. What can you say as to the extent of this injury? 

A. The extent of the injury to be accomplished by 
the canals proposed would lead to the abandonment of 
the existing water-wheel installation together with its 
harness and paraphernalia, and the substitution in 
place thereof of a new water-wheel plant, together with 
its wheel-bays and foundations, and an extension of the 
power-house and rearrangement of the setting of the 
electrical apparatus. 

Q. Then that would mean substantially a reconstruc- 
tion of the plant? 

A. Yes, sir, it would be equivalent to a reconstruc- 
tion of the plant. 



A. Fra» A. R. < 191 

sition of Thomas Taylor Johnston. i 

Q. Now, what ran ymi say. Mr. John- s to any 

danger being threatened to the property even if recon- 
structed on account of the maintenance of these water- 
ways across the ends of the dam? 

A. The existence of such canals as that proposed 
would at all times be a menace to the safety of the prop- 
erty, and this is particularly true of that canal proposed 
around the southerly end of the dam. 

Q. For what reason? 

A. Because it would be constructed in a bed of boul- 
and lava, which would easily be subject to erosion 
and destruction, so that unless guarded with extreme 
care and constructed in a most thorough manner, there 
Would be almost a certainty of an enlargement of the 
canal around the southerly end of the dam to the ex- 
tent that the total flow of the river might flow through 
it. And even under the most favorable circumstances 
and conditions the existence of the canals such as pro- 
posed would be a definite menace. 

What. Mr. Johnston, in your judgment as an en- 
gineer, would be the combined effect on this property 
of the lowering of the head of the stream in the man- 
ner you have described and the continuing maintenance 
of the canals around the ends of the dam? 

A. The damage would be irreparable. The integ- 
rity of the elopment being constantly men- 
aced by canals such as proposed aL bructed through 
materials which are of a nature rendering the mainte- 
nance of such canals difficult would have a material ef- 



192 The Trade Dollar Consolidated Min. Co. 

(Deposition of Thomas Taylor Johnston.) 

feet in reducing the commercial value of the property, 
and in a manner and to an extent which cannot he es- 
timated. The principal effect of the lowering' of the 
head which would be occasioned by the construction of 
the canals, as I have already stated, would lead to 
the complete abandonment of the existing plant. 

Examination of witness closed. 

THOS. T. JOHNSTON. 

THOMAS B. McKAIG, a witness produced on behalf 
of the complainant, being duly sworn, testified as fol- 
lows: 

Direct Examination. 

(By Mr. SHAW.) 

Q. Where do you live, Mr. McKaig? 

A. Pittsburgh. 

Q. How long have you lived there? 

A. Since 1860. 

Q. And what is your business? 

A. At present I am secretary and treasurer of the 
Trade Dollar Consolidated Gold Mining Company. 

Q. That is the plaintiff in this case? 

A. Yes, sir. 






Q. How long have you been connected with the com- 



pany? 



A. Since the incorporation and organization of the 
officers in June, 1891. 



vs. Alfred A. Fraser and A* 7? Crusen. 193 

(Deposition of Thomas B. McKaig.) 

Q. Have you been an officer of the company all that 
time? A. Yes, sir. 

Q. Secretary and treasurer? 

A. Secretary and treasurer without any interrup- 
tion. 

Q. Are you familiar with the company's property in 
Owyhee and Ada Counties, Idaho? A. Yes, sir. 

Q. For what purposes were the dam and power plant 
of the company constructed? 

A. The price of fuel being constantly advancing, and 
the company realizing they had a long-producing prop- 
erty, realized it would be a matter of economy to con- 
struct a water-power plant and generate electricity to 
be used for power purposes and other purposes at the 
property, and they also took into account that there 
would be a commercial use for the surplus power that 
would mean a revenue to the company. 

Q. When was the dam constructed? 

A. The work began in the spring of 1900, and the 
current was turned into the transmission line in April, 
1901. 

Q. Has the power been used since that date in the 
company's work? A. Yes, sir. 

Q. In what ways and to what extent? 

A. For operating mill machinery, electric haulage, 
operating of air-compressors, which air has been used 
for drilling, pumping and hoisting, as well as in develop- 
ment. 



194 The Trade Dollar Consolidated Min. Co. 

(Deposition of Thomas B. McKaig.) 

Q, How necessary is this power to the operation of 
yonr mines? 

A. It is practically indispensable. 

Q. Why? 

A. If the company had to rely upon wood or coal for 
fuel the expense would be so much increased that the 
low-priced ores which we are obliged to work would not 
yield a profit. 

Q. Then, as I understand you, the expense from oper- 
ating by some other power would be prohibitive? 
A. It would, yes. 

Q. What is the extent of your property there — I 
mean your mining property? 

A. In acreage about eight hundred. 

Q. And what is, briefly, the character of the mine 
and its equipment? 

A. The underground workings consist of about fif- 
teen miles of accessible drifts, and the main working 
tunnel is in over ten thousand feet, and the company 
has all of the modern equipment of a gold-mining plant. 

Q. How many men do you employ? 

A. On an average two hundred and twenty-five per 
day. 

»Q ; . Do you mean for every day in the year? 

A. Yes, sir, three hundred and sixty-five days in the 
year. 

Q. And what does your pay-roll amount to? 



vs. Alfred A. Fraser and A. R. Crusen. 195 

(Deposition of Thomas B. MeKaig.) 

A. We have paid out annually for wages and sup- 
plies considerably over four hundred thousand dollars 
each year since 1900. 

Q. And can you sa}^ how many people are dependent 
upon the operation of this property for their livelihood? 

A. I cannot say definitely the number, but a very 
large number. It is the most substantial industry 
around Silver City and Dewey. There is a large amount 
of timber and wood used in the mine which has to be 
cut in that section and hauled, and that gives employ- 
ment to a large number of men outside of those engaged 
directly in the mine, so that directly and indirectly the 
greater part of the community is dependent upon this 
industry. 

Q. What was the cost to the company of construct- 
ing the dam and installing your apparatus and machin- 
ery connected with its power plant? 

A. The original cost of the hydraulic and electrical 
installation was three hundred and fifty-seven thousand 
nine hundred and twenty dollars and seven cents, and 
since that time there has probably been expended more 
than forty thousand dollars additional for electrical ap- 
paratus. 

Q. I believe you stated that when the company con- 
structed this plant it had in contemplation the supply 
of power to other than its own works. Is that a fact? 

A. Yes, sir. 

Q. And has it supplied any interests outside of your 
own? A. Yes, sir. 



196 The Trade Dollar Consolidated Min, Co. 

(Deposition of Thomas B. McKaig.) 

Q. What interests have been supplied with power? 
A. The Poorman Gold Mines Company, Limited. 
<Q. Where is that located ? 

A. That is located near Silver City. And the Addie 
Consolidated Mining and Milling' Company, and the 
Trade Dollar Extension Mining Company, all of which 
are situated near our power line in Owyhee County; 
they have been furnished electric current for their opera- 
tions. We have also furnished a local light company, 
known as the Owyhee Light Company, who in turn have 
furnished electric lines for the residents of the towns of 
Silver City, Dewey and Murphy, Idaho. We have also 
a contract with the War Eagle Consolidated Mining 
Company, recently made, to furnish power for continuing 
their underground workings in their mines near Silver 
City. This contract is to furnish electrical current for 
a one hundred horse-power motor. 

Q. What efforts has the company made toward cre- 
ating or putting to any beneficial public use its surplus 
power? 

A. We have furnished all electrical power that was 
required in Owyhee County, and in addition have had 
engineers get together information on the advisability 
of selling our surplus power on the north side of the 
river, and the best plans for increasing the capacity at 
the venerating station. In the spring of 1903, Mr. James 
Bryan, consulting engineer, of Pittsburgh, was sent out 
to report on the advisability of building a transmission 
line into Boise, Idaho; and also to report on the expense 



vs. Alfred A. Fraser and A. R. Crusen, 197 

(Deposition of Thomas B. McKaig.) 

of such line and the increased apparatus that would be 
necessary, and the commercial possibilities attached 
thereto. In the fall of the same year, 1903, Mr. A. J. 
Wiley, a civil engineer, was directed to have a survey 
made of the arid lands below the falls with a view of 
utilizing the surplus power for pumping water into these 
arid lands, and in the summer of 1904, Mr. A. J. Wiley 
was directed to report on the commercial results that 
could be obtained by erecting a transmission line and 
supplying the towns along the Oregon Short Line with 
electric current for lighting and power purposes between 
Nampa, Idaho and Weiser, Idaho. The company is 
prepared now to increase the capacity of its plant so 
as to utilize all the water available and supply power 
to that extent to all persons desiring the same. The 
company is soliciting business and has now made two 
proposals for furnishing nearly one thousand horse- 
power to be used in dredging operations on the Snake 
river, so that it is contemplated that within a very short 
time all of its available water will be devoted to bene- 
ficial use. 

Examination of witness closed. 

THOS. B. McKAIG. 



108 The Trade Dollar Consolidated Min. Co. 

JAMES BRYAN, a witness produced on behalf of the 
complainant, heing duly sworn, testified as follows: 

Direct Examination. 
(By Mr. SHAW.) 

Q. Mr. Bryan, you are an engineer? 

A. Yes, sir. 

Q. And reside where? A. Pittsburgh. 

Q. And how long have you been an engineer? 

A. I have been in the business about twenty-five 
years. 

Q. Have you had experience in that branch of en- 
gineering known as hydraulics? 

A. I have had some experience with it and I am 
now building one plant and have drawn plans for a 
second one. 

Q. What particular branch of the profession have 
you devoted your attention to? 

A. The designing and building of electrical plants 
for public lighting and for power purposes for mills 
around in the Pittsburgh District. 

Q. Have you read the bill of complaint in this case? 

A. Yes, sir. 

Q. Have you seen the map or plan attached to the 
application for permit of the defendants in this case? 

A. Yes. 

Q. What, in your judgment as an engineer, would the 
construction of the work alleged to be in contemplation 
by the defendants have upon the dam and property of 
the plaintiff in this case? 



vs. Alfred A. Fraser and A. R. Crusen. 199 

(Deposition of James Bryan.) 

A. The construction of the canals as shown on those 
plans would in my opinion be a very serious menace to 
the existing dam, for the reason that on the Owhyee 
County side it was found impossible, I understood, in 
the construction of the dam to obtain a solid rock foun- 
dation. This end of the dam abuts very closely to the 
hillside, and at the time of my visit, which was on 
July 5th, 1903, the engineers of the company were then 
engaged in reinforcing by means of building a crib at 
this end of the dam. The course of the stream is such 
that a very strong eddy is set up by the flow of the 
stream on the Owyhee side, which renders it very diffi- 
cult to maintain the anchorage of this abutment, due 
to the erosive action of the stream. I do not see how 
it would be practicable to build a canal of the character 
set forth in the blue prints filed with the application for 
a permit without it resulting, due to the eddy in the 
stream, in the destruction of the whole dam. One of the 
principal purposes of my visit to Idaho was for the pur- 
pose of examining the locality within practical trans- 
mission limits of the power plant at Swan Falls as to 
the commercial possibilities of the territory for the 
utilization of additional power that it was proposed to 
install in event of it being determined that there was a 
market for such additional power. In connection with 
this examination I further examined into and reported 
upon the method by which the capacity of the power 
plant could be increased, so as to supply any users that 
might require the same. The power-house as at present 



200 The Trade Dollar Consolidated Min. Co. 

(Deposition of James Bryan.) 

constructed has provisions for the installation of six 
wheels, four of which are at present in service. One of 
the plans suggested was that in event of the company's 
ability to make arrangements for the use of additional 
power, was that there he installed in these two spare 
bays two additional wheels, together with the necessary 
electrical apparatus, to be operated by the same. The 
installation of these two additional wheels would in- 
volve the removal of the transformers from the present 
power station, and as the most practical site available, 
it was proposed that this transformer house be erected 
on the Owyhee County side in the location it is now pro- 
posed in the application for a permit to build a canal. 
This transformer house was intended for the purpose 
of furnishing power for the Owyhee County side, in 
which direction the transformer lines of the company at 
present run. For the purpose of still further utilizing 
the waterfall it was proposed to build between the pres- 
ent power-house and the Ada County side an additional 
power-house and install additional wheels, building upon 
the ground at present proposed for the site of the canal 
as the only available site, a transformer house for the 
purpose of installing electrical apparatus for the trans- 
mission of power in the direction of Nampa and Boise. 

Q. What effect, Mr. Bryan, would the construction 
of these canals have on the head of water at the dam? 

A. The construction of these canals would have the 
effect of decreasing the available head which the dam 
was constructed to obtain. The lowering of the head 



vs. Alfred A. Fraser and A. R. Critsen. 201 

(Deposition of James Bryan.) 

would result in the decrease in the energy developed 
by the present wheels, and to obtain equivalent energy 
it would be necessary for the company to install new 
wheels. The installation of new wheels operating un- 
der a lower head would consume a greater volume of 
water than is at present used. The construction of 
the canals would further preclude the possibility of the 
company carrying out its plans for the full utilization of 
the present volume of water, which I understand from 
its officials, it is willing and anxious to utilize whenever 
such demand for power arises. 

Q. In view of what you have stated, Mr. Bryan, what 
in your opinion would be the extent of the damage to the 
plaintiff's property by the construction of these canals? 
A. The construction of these canals might result in 
the destruction of its dam, due to the weakening of the 
anchorage of the abutments. It would certainly result 
in the reduction of the head, and the compelling of the 
company to make a new installation, and the question 
would arise as to whether, if the canals were used to 
their full capacity, there would be sufficient water avail- 
able at the reduced head, arising from such canals, for 
operating new wheels with their increased consumption 
of water to produce even the present amount of energy. 
In my opinion the construction of the canals as above 
outlined would practically result in the destruction of 
the value of the present power plant. 
Examination of witness closed. 

JAMES BRYAN. 



202 The Trade Dollar Consolidated Min, Co. 

I hereby certify that the above witnesses were duly 
qualified and examined at the time and place stated in 
the above caption; that the testimony of said witnesses 
was taken in shorthand by Chester P. Johnston, and af- 
terward reduced to typewritten form and subscribed by 
the deponents in my presence. 

[Seal] J. C. BILY, 

Special Examiner. 

My commission expires June, 25, 1905, 

Allegheny County, 

State of Pennsylvania, — ss. 

I, Wm. B. Kirker, prothonotary of the court of Com- 
mon Pleas, No. 3, in and for the county of Allegheny, 
in the commonwealth of Pennsylvania, the same being 
a court of law and record and having a seal, do hereby 
certify that J. C. Bily, Esquire, before whom the fore- 
going depositions was taken, and who has thereunto, in 
his own proper handwriting, subscribed his name, to 
the certificate of the proof or acknowledgment of the 
annexed instrument was at that time, and is now, a 
notary public in and for the commonwealth of Pennsyl- 
vania, resident of said county aforesaid, duly commis- 
sioned and sworn and authorized by law to take and 
certify affidavits and the acknowledgments and proof 
of deeds to lands, etc., to be recorded, to all whose acts 
as such due faith and credit are, and of right ought to 
be, given throughout the United States and elsewhere, 
and further, that said instrument is executed in ac- 
cordance with the laws of this commonwealth, and that 






vs. Alfred A. Fraser and A. R. Crusen. 203 

I am acquainted with his signature, and believe the 
same to be genuine. 

In testimony whereof, I have hereunto set my hand 
and affixed the seal of the said court at Pittsburgh, in 
said county, this 2d day of March, in the year of our 
Lord one thousand nine hundred and five. 

[Seal] WM. B. KIRKER, 

Prothonotary. 

[Endorsed] : No. 245. U. S. Circuit Court, Central 
Division, District of Idaho. The Trade Dollar Con'd M. 
Co. vs. Alfred A. Fraser and A. R. Cruzen. Deposition 
of Plfts. Witnesses, Thos. T. Johnston, Thos. B. McKaig 
and Jas. Bryan. Filed March 6, 1905. A. L. Richard- 
son, Clerk. 



In the Circuit Court of the United States for the District of 

Idaho. , ! 

i 

TRADE DOLLAR CONSOLIDATED 
MIXING CO., 

Complainant, 
vs. 

ALFRED A. FRASER et al., 

Defendants. 

Decision. 
JOHNSON & JOHNSON and JOHN T. NUGENT, 

for Complainant. 
ALFRED A. FRASER, for Defendants. 

BEATTY, J.— The complainant alleges that on Jan- 
uary IT, 1900, 10,000 cubic feet per second of water in 



204 The Trade Dollar Consolidated Min. Co. 

Snake river were located for power purposes at Swan 
Falls, which it afterward purchased and now owns. 
From the record it is concluded, that this includes sub- 
stantially all the water flow of the river and much more 
than its flow at low-water stages; that soon after the 
location of this water claim the complainant commenced 
and completed the construction of a dam across the 
river at said falls and put in power plant works, by 
which it now actually uses 2,150 feet of the water; that 
by the construction of this dam the water has been 
raised 19 feet, giving a power pressure of water accord- 
ingly, and it claims all the 10,000 feet located and the 
right, usually recognized by the law as applicable to 
water users, to the proper time in which to so extend 
and add to its works, as to use all the water originally 
appropriated. It also appears that the defendants, in 
pursuance of the laws of this State, have taken out per- 
mits for 4,000 feet of water of said river for power pur- 
poses and at a point in close proximity to complainant's 
dam and works, and it is charged that they "threaten 
and propose to commence the construction" of ditches 
and canals commencing' above complainant's! dam on 
each side of the river and run the same around the ends 
of said dam to points of the river below the dam, which 
it is alleged would result in the destruction of complain- 
ant's works and power plant. Also it is alleged that 
these permits granted "to the defendants under which 
they claim the right to enter upon the lands and prem- 
ises of your orator for the purposes of constructing their 
proposed canals and works, are clouds upon your orator's 



vs. Alfred A. Fraser and A. R. Crusen. 205 

titles and to said property and have greatly depreciated 
the value thereof," whereupon it is prayed that defend- 
ants by perpetually enjoined from proceeding with the 
construction of their works; from any interference with 
complainant's works and plant, "from diverting or in 
any manner depriving your orator of the waters of Snake 
river owned and diverted by your orator as aforesaid 
and that the said permits granted to said defendants be 
canceled and annulled as a cloud upon your orator's 
title to said land and premises." 

The defendants answer that all they have done was 
to procure permits for water rights in accordance with 
the laws of this State; that they have not done any work 
upon the premises and do not intend to until they shall 
be authorized by some court having jurisdiction and 
that they intend applying to some such court for an 
adjudication of their rights, under the statutes for con- 
demnation proceedings in such cases, and it is not shown 
by the testimony that defendants have done any work 
or about, or threaten, to do any, otherwise than as au- 
thorized by some court of competent jurisdiction. 

A temporary restraining order was refused upon the 
showing made for it. Has the record been so changed 
as to now justify a perpetual injunction? Complainant 
is asking protection not alone for the water it is actually 
using, but for all it claimed, substantially all that flows 
in the river, and, as against these defendants, for all 
time. If the Court grants this, it is for the absolute con- 
trol of the river at that point. Before granting to any 
one such unlimited control to one of nature's elements, 



206 The Trade Dollar Consolidated Mm. Co. 

which, like the air we all must have to live, seems in- 
tended for the use of all, the Court will move carefully. 
It is the uniform tendency of the courts to prevent the 
monopoly of any of nature's elements, and as far as pos- 
sible, consistent with the statutes, to extend their bene- 
fits to as many as can consistently use them. Beyond 
question, under our laws, a party may be protected in 
the use of all the water he actually appropriates and 
uses, even if it be every drop that flows in as great 
a river as the Snake. Not only that, but when he has 
used but a part of what he claims, he will be allowed 
a reasonable time to make use of the balance, provided 
he shows by his work and improvements good faith in 
reducing all he claims to his actual use. But is he in 
the meantime entitled to a perpetual injunction against 
the use of any, by others, before it can be known whether 
he will ever make any use of it? That is just the prop- 
osition which complainant is urging upon this Court. 

There is one proposition involved in this case which 
seems clear. The complainant has erected a dam across 
that river, by which it creates a waterfall of 19 feet 
where practically none before existed, and thereby it 
has created a power for its plant. This 19-foot fall 
exists, only while the dam is filled to the top and of 
course any decrease in the height of the water lessens 
the power and efficiency of the plant accordingly. The 
complainant is entitled to such protection of this dam 
that the water in it shall not be lowered below the 19 
feet by the erection of any other works by other parties. 
But does it appear that the complainant is in need of 



vs. Alfred A. Fraser and A. R. Grusen, 207 

present protection — is there any threatened danger to 
its interests? The law upon this question is well set- 
tled. A court cannot exercise this extraordinary power 
of ordering a permanent injunction, until it is shown 
that there is a right to protect and that such right is in 
jeopardy from the threatened unlawful act of some in- 
truder. There must be more than the mere fear or 
charge, of the owner of the right, that it is threatened. 
There must be such evidence as to convince that there 
is at least danger of injury and generally of irreparable 
injury. If the Court always grants injunctions upon 
the mere allegations, or upon the fears or beliefs of a 
party, that his rights are in jeopardy, and without suffi- 
cient proof in support thereof, it may often result in 
vexatious and unjust litigation, in which the strong op- 
press the weak and the Courts would be hampered with 
causes based alone upon the imagination or caprice of 
parties. Upon this subject Kerr on Injunctions, 198, 
says: 

"The mere prospect or apprehension of injury, or the 
mere belief that the act complained of may or will be 
done, is not sufficient; but if an intention to do the act 
complained of can be shown to exist, or if a man insists 
on his right to do, or begins to do, or threatens to do, or 
gives notice of his intention to do an act which must, 
in the opinion of the Court, if completed, give a ground 
of action, there is a foundation for the exercise of the 
jurisdiction. The mere denial by a man of his intention 
to do an act or to infringe a right will not prevent the 
Court from interfering; but if a man asserts positively 



208 The Trade Dollar Consolidated Min. Co. 

that it is not his intention to do a certain act or infringe 
a certain right, and there is no evidence to show any in- 
tention on his part to do the act or infringe the right, 
the Court will not interfere." 

Lorenz vs. Waldron, 96 Oal. 243 (31 Pac. 54), is to 
the same effect and among its citations, quotes Church 
vs. Maschop, 10 N. J. Eq. 57, as follows: 

"The Court cannot grant an injunction to allay the 
fears and apprehensions of individuals; they must show 
the Court that the acts against which they ask for pro- 
tection are not only threatened, but will in all probabil- 
ity be committed to their injury." 

Such being the law, and of anything to contrary I 
am not advised, the question recurs whether the Court 
would 'be justified under the circumstances of this case 
in granting the injunction asked. If it were shown that 
complainant's dam or works were in danger of injury 
or that the amount of water which it has actually ap- 
propriated and is using were in danger of diminution by 
any acts being done, attempted or threatened by defend- 
ants, it cannot be doubted that the injunction would be 
justified. 

It appears that the defendants received their water 
right permits from the State authorities on November 
29, 1904, and before they took any further action the 
complainant, on December 23, 1904, commenced this ac- 
tion, which must have been based alone upon its fears 
and apprehensions, and it does not yet appear, although 
a year has passed, that defendants have interfered or 



vs. Alfred A. Fraser and A. R. Crusen. 209 

attempted to do so, with any of complainant's said 
works. But the defendants disclaim any intention of 
doing any work upon the premises or of doing anything 
in connection with their water right permits, until au- 
thorized by a court of competent jurisdiction. When 
any such Court acts in the matter the presumption is 
that the interests and rights of both parties will be con- 
sidered by it and duly protected and adjusted. What 
the Court orders must be presumed to be the law and 
anything that defendants may thus be authorized to 
do must be held as lawful acts, and which cannot be 
restrained by any Court, for it is only unlawful acts 
that may be restrained. In addition to defendants' said 
disavowal of intention to interfere with complainant's 
work or to injure its rights, there is absolutely no evi- 
dence in the case showing that they have ever attempted 
to do so; that they are about or threaten to do so; that 
there is any probability that they ever will, or that they 
will do anything in the premises beyond what they may 
be authorized to do by a court of competent jurisdic- 
tion. It now seems to me that this Court should not act 
until it is shown the complainant's rights and property 
are in danger of injury by the unlawful acts of defend- 
ants; that its refusal to grant the temporary restraining 
order was justified and that it should now for like rea- 
sons decline to grant the permanent injunction, which 
is so ordered. 

It is further claimed by complainant that defendants' 
water right permits are a menace to complainant's prop- 
erty and a cloud upon its title thereto, and that this 



210 The Trade Dollar Consolidated Mm. Co. 

Court should cancel and annul such permits. The au- 
thority of the Court to declare absolutely void, rights 
granted by lawful authority of the State, may be 
doubted, but it may so control them as to prevent their 
interference with prior vested rights. It is said by 
defendants that complainant is not in position to ask 
the quieting of its claim to this water, because to do 
so it must both be in possession of and hold the title 
to it, and that the Supreme Court of this State has held 
that no title to running water passes to any one, but 
only the use of it. It seems to me that this is a mere 
technical distinction that cannot avail defendants. Even 
if complainant has not a technical title to the water, it 
has such a right to so much as it has actually made use 
of, as is equivalent to a title, and is as much entitled to 
protection as the absolute title itself would be. I think 
as against these permits the complainant is entitled to 
have quieted its title or right to the use of the water it 
has made actual use of, which I believe is 2,150 feet per 
second, which is ordered accordingly. This order can- 
not be extended to all the 10,000 feet claimed, for the 
good reason that complainant may never use it. There 
can be no justification in preventing others from en- 
joying that which complainant may never use, if it can 
be done without injury to rights already vested. 

[Endorsed] : No. 245. In the Circuit Court of the 
United States for the District of Idaho. Trade Dollar 
Consolidated Mining Co., Complainant, vs. Alfred A. 
Fraser et al., Defendants. Decision. Filed December 
18, 1905. A. L. Richardson, Clerk. 



vs. Alfred A. Fraser and A. II. Crusen. 211 



In the Circuit Court of the United States for the District of 

Idaho. 

THE TRADE; DOLLAR CONSOLI- 
DATED! MOING COMPANY (a Cor- 
poration), 

Complainant, 1 

vs. 

ALFRED A. ERASER et al., 

Defendants. 

Final Decree- 
This cause came on to be heard at this term on the 
pleadings, exhibits and evidence taken therein, and was 
argued by counsel for the respective parties and taken 
under advisement by the court, and a decision thereon 
in writing having been duly rendered by the court and 
filed herein, wherein it was concluded that a party is en- 
titled to protection in the use of all water which he actu- 
ally appropriates and uses, and to a reasonable time in 
which to apply to active use what he claims; that com- 
plainant is entitled to have quieted its title or right to 
the use of the two thousand one hundred and fifty feet 
per second of the water actually appropriated and used 
by it, but that it is not entitled to the permanent injunc- 
tion prayed. Wherefore, in accordance with such de- 
cision and as therein ordered. 

It is now ordered, adjudged and decreed, as follows: 
1. That the complainant is now the owner of and 



212 The Trade Dollar Consolidated Mm. Co. 

entitled to the free and uninterrupted use of two thou- 
sand one hundred fifty cubic feet per second of the 
waters of Snake river at Swan Falls, between Ada and 
Owyhee Counties in the State of Idaho, as against the 
defendants or either of them, by reason of priority of 
appropriation, diversion and application to a beneficial 
use, and complainant's title thereto is adjudged to be 
quieted against all claims, demands or pretensions of 
the defendants or either of them and also against those 
two certain permits granted by the State Engineer of 
Idaho, on November 29, 1904, now held by the defend- 
ants. 

2. And it is further ordered, adjudged and decreed 
that each party pay his own costs. 

Dated December 27, 1905. 

J AS. H. BE ATT Y, 

Judge. 

[Endorsed]: No. 245. In the Circuit Court of the 
United States for the District of Idaho. The Trade 
Dollar Consolidated Mining Company, a Corporation, 
Complainant, vs. Alfred A. Eraser et al., Defendants. 
Final Decree. Filed December 27, 1905. A. L. Rich- 
ardson, Clerk. 



vs. Alfred A. Fraser and A. R. Crusen. 213 

In the Circuit Court of the United States, in and for the Dis- 
trict of Idaho, Central Division. 

THE TRADEi DOLLAR CONSOLI-\ 
DATED MINING COMPANY (a Cor- 
poration), 

Plaintiff, 
vs. 

ALFRED A. FRASER and A. R. 

CRUSE.N, 

Defendants. 

Petition for Appeal. 
The above-named plaintiff conceiving itself aggrieved 
by the decree made and entered on the 27th day of De- 
cember, 1905, in the above-entitled cause, does hereby 
appeal from said decree to the United States Circuit 
Court of Appeals for the Ninth Circuit, for the reasons 
specified in the assignment of errors, which is filed 
herewith and it prays that this appeal may be allowed, 
and that the proper order fixing the amount of security, 
which plaintiff shall give and furnish, may be made, 
and that a transcript of the record, proceedings and 
papers upon which said decree was made duly authenti- 
cated, may be sent to said United States Circuit Court 
of Appeals for the Ninth Circuit. And your petitioner 
will every pray. 

THE TRADE DOLLAR CONSOLIDATED MIN- 
ING COMPANY, Appellant, 
By JOHNSON & JOHNSON, 
JOHN F. NUGENT, 

Solicitors. 



214 The Trade Dollar Consolidated Min. Co. 

[Endorsed] : No. 245. In the Circuit Court of the 
United States in and for the District of Idaho, Central 
Division. The Trade Dollar Consolidated Mining Com- 
pany, a Corporation, Plaintiff, vs. Alfred A. Eraser and 
A. R. Crusen, Defendants. Petition for Appeal. Filed 
Jan. 15th, 1906. A. L. Richardson, Clerk. Johnson & 
Johnson and J. F. Nugent, Solicitors for Plaintiff. 



In the Circuit Court of the United States, in and for the Dis- 
trict of Idaho, Central Division. 

THE TRADE DOLLAR CONSOLI ,\ 
DATED MINING COMPANY (a Cor. \ 
poration), j 

Plaintiff, [ 
TO 

ALFREQD A. FRASER and A. Rl 

CRUSE-N, 

Defendants. 

Assignment of Errors. 
The plaintiff files the following assignment of errors 
upon which it will rely upon its appeal from the final 
decree made in this Honorable Court, on the twenty- 
seventh day of December, 1905, and plaintiff alleges 
that the decree is erroneous: 

First. In failing to declare the quantity of water 
w r hich can be diverted through plaintiff's works in ex- 
cess of the quantity found to have been beneficially ap- 
plied and in failing to set a time when such amount 
shall be so applied. 






vs. Alfred A. Fraser and A. R. Cruscn. 215 

Second. In failing to declare that plaintiff's power 
plant was so constructed as to be capable of diverting 
and of applying to a beneficial use the entire 10,000 
cubic feet per second of water appropriated, and that 
the plaintiff was entitled to four years from the date of 
said decree within which to apply to a beneficial use 
the 7,850 cubic feet per second of water this being the 
quantity in excess of the 2,150 cubic feet per second al- 
lotted to plaintiff by said decree. 

Third. In failing to declare that plaintiff has been 
continuously engaged in prosecuting its work for the 
purpose of applying all of the water appropriated to a 
beneficial use and that its rights thereto are prior to 
any rights of defendants. 

Fourth. In failing to declare that defendants' per- 
mits are illegal and void as against plaintiff's prior 
rights. 

Fifth. In failing to declare plaintiff's right to main- 
tain the head of water of nineteen feet created by its 
dam as against the defendants. 

Sixth. In failing to declare that the diversion of any 
quantity of water in the manner proposed by defend- 
ants would relatively lessen the effective head of water 
created by plaintiff's dam and correspondingly reduce 
the power output and value of plaintiff's plant, and 
that defendants have no right or authority in law to 
so divert any of said water. 

Seventh. In failing to declare that neither of de- 
fendants' proposed canals could be built without the 
probable destruction of plaintiff's dam and power plant, 



2,16 The Trade Dollar Consolidated Min. Co. 

and that defendants have no right or authority in law 
to construct the same. 

Eighth. In failing to declare that the proposed di- 
version of the water claimed by defendants, if it could 
be done without threatening the destruction of the dam, 
would compel plaintiff to shut down its plant during a 
large part of the year and that defendants have no 
right or authority in law to divert the same. 

Ninth. In failing to fully settle and determine the 
extent of plaintiff's rights to the water and property 
described in the bill of complaint and secure plaintiff 
in the possession and enjoyment thereof, as against the 
adverse claims of defendants, regardless of defendants' 
allegations as to future condemnation proceedings. 

Tenth. In failing to find from the evidence, that the 
defendants would have no right under the laws of 
Idaho, to condemn any part of the plaintiff's property 
for their proposed works. 

Eleventh. In failing, to declare that plaintiff was en- 
titled to the injunction against defendants, as prayed 
for, regardless of the proposed condemnation proceed- 
ings, for the reason that in condemnation proceedings 
brought by defendants, under the Statutes of Idaho, 
this plaintiff would have no remedy against the occupa- 
tion of its property by defendants and the commence- 
ment by them of their proposed works, pending the 
trial thereof or pending appeal. 

Twelfth. In failing to declare that if defendants had 
the right to condemn, the plaintiff was entitled to an 
Injunction against defendants, until such time as they 
had acquired the right to take plaintiff's property, in 



vs. Alfred A. Fraser and A. R. Crusen. 217 

appropriate proceedings and had paid a just compensa- 
tion therefor as required by the constitution and laws 
of Idaho. 

Thirteenth. In failing to declare that, if defendants 
had any rights which could only be established in con- 
demnation proceedings, they should be required to in- 
stitute such proceedings within a reasonable time, fixed 
by the Court, and prosecute the same in good faith and 
that upon failure so to do the injunction should issue as 
prayed for. 

Fourteenth. In failing to decree that plaintiff re- 
cover its costs of suit from defendants. 

Wherefore the plaintiff prays that said decree be re- 
versed and that said Court be directed to enter a de- 
cree in accordance with the prayer of the bill. 

JOHNSON & JOHNSON and 
J. F. NUGENT, 

Solicitors for Plaintiff. 

[Endorsed] : No. 245. In the Circuit Court of the 
United States in and for the District of Idaho, Central 
Division. The Trade Dollar Consolidated Mining Com- 
pany, a corporation, Plaintiff, vs. Alfred A 1 . Fraser and 
A. Ki. Crusen, Defendants. Assignment of Errors. 
Filed Jan. 15th, 1906. A. L. Richardson, Clerk. 



218 The Trade Dollar Consolidated Min. Go. 



In the Circuit Court of the United States, in and for the Dis- 
trict of Idaho, Central Division. 

THE TRADE DOLLAR CONSOLE 
DATED MINING COMPANY (a Cor- 
poration), 

Plaintiff, 
vs. 

aLFREID A. ERASER, and A. R. 



CRUSEN, 



Defendants., 

Order Allowing Appeal. 

Upon motion of counsel for plaintiff, and on filing the 
petition of plaintiff for an order allowing appeal, to- 
gether with an assignment of errors, it is ordered that 
an appeal be, and hereby is allowed to said plaintiff, to 
the United States Circuit Court of Appeals for the 
Ninth Circuit, from the decree entered on the 27th day 
of December, 1905, and that the amount of plaintiff's 
bond upon said appeal be, and is hereby fixed at the sum 
of fire hundred dollars, and that a certified transcript 
of the record and proceedings therein be forthwith 
transmitted to the said United States Circuit Court of 
Appeals. 

Dated January 15, 1906. 

J AS. H. BEATTY, 
Judge of the United States Circuit Court. 



vs. Alfred A. Fraser and A. R. Crusen. 219 

[Endorsed]: No. 245. In the Circuit Court of the 
United States in and for the District of Idaho, Central 
Division. The Trade Dollar Consolidated Mining Com- 
pany, a Corporation, Plaintiff, vs. Alfred A. Fraser and 
A. R. Crusen, Defendants. Order Allowing Appeal. 
Filed Jan. 15, 1906. A. L, Richardson, Clerk. 



In the Circuit Court of the United States, in and for the Dis- 
trict of Idaho, Central Division. 



THE TRADE DOLLAR CONSOLI 
DATED MINING COMPANY (a Cor 



\ 

poration), 



Plaintiff 

vs. 

ALFRED A. FRASER, and A. R. 

CRUSIEN, 

Defendants. 

Order as to Transmission of Original Exhibits. 

It is hereby ordered that the following original ex- 
hibits offered in evidence by plaintiff on the trial of the 
above-entitled cause be allowed to be withdrawn from 
the files for the purpose of being transmitted to the 
United States Circuit Court of Appeals for the Ninth 
Circuit as part of the record on appeal to said court: 

M]aps and plats attached to the copies of the permits 
forming part of the bill of complaint and marked Ex- 
hibits "A" and "B." 

Map and plan of Dam and Power Plant, marked Com- 
plainant's Exhibit "C 



£20 The Trade Dollar Consolidated Min. Co. 

It is further ordered that said exhibits be returned to 
the custody of the clerk of this court upon the termina- 
tion of said cause in the said United States Circuit 
Court of Appeals. 

JAB. H. BEATTY, 
Judge. 

[Endorsed] : No. 245. In the Circuit Court of the 
United States in and for the District of Idaho, Central 
Division. The Trade Dollar Consolidated Mining Com- 
pany, a Corporation, Plaintiff, vs. Alfred A. Fraser and 
A. R. Crusen, Defendants. Order as to Transmission 
or Original Exhibits. Filed Jan. 15, 1906. A. L. Rich- 
ardson, Clerk. 






In the Circuit Court of the United States, in and for the Dis 
trict of Idaho, Central Division. 

THE TRADE DOLLAR CONSOLI- 
DATED MINING COMPANY! (a Cor- 
poration), 

Plaintiff 

vs. 

ALFRED A. FRASER, and A. R. 

CRUSEN, 

Defendants. / 

Bond on Appeal. 

Know all men by these presents, that we, The Trade 

Dollar Consolidated Mining Company, a corporation, as 

principal and C. W. Moore and Alfred Eoff, of Boise 

City, Ada County, Idaho, as sureties, are held and firmly 



vs. Alfred A. Fraser and A. R. Grusen. 221 

bound unto the above-named defendants, Alfred A. 
Fraser and A. B. Orusen, in the sum of five hundred 
($500) dollars, to be paid to the said defendants, or 
either of them, as their interests may appear, to which 
payment, well and truly to be made, we bind ourselves, 
our heirs, executors and administrators, jointly and sev- 
erally, firmly by these presents. 

Sealed with our seals and dated this 15th day of Janu- 
ary, 1900. 

Whereas, the above-named plaintiff, The Trade Dollar 
Consolidated Mining Company, hath prosecuted its ap- 
peal to the United States Circuit Court of Appeals for 
the Ninth Circuit, to reverse in part the final judgment 
and decree rendered in the above-entitled suit by the 
Circuit Court of the United States for the district of 
Idaho; now, therefore, the condition of this obligation 
is, that if the above-named The Trade Dollar Consoli- 
dated Mining Company, shall prosecute its said appeal 
to effect, and answer all costs and damages that may be 
adjudged or awarded against it if it shall fail to make 
good its plea, then this obligation to be void; otherwise 
in full force. 

THE TRADE DOLLAR CONSOLIDATED MIN- 
ING CO. 

By FREDERIC IRWIN, 
General Manager. 

0. W. MOORE. [Seal] 
ALF. EOFF. [Seal] 

Signed, sealed and delivered in the presence of: 

. RICHARD H. JOHNSON. 



222 The Trade Dollar Consolidated Min, Co. 

United States of America, 
District of Idaho, 
County of Ada, — ss. 

C. W. Moore and Alfred Eoff, being first duly sworn, 
each for himself, deposes and says that he is a resident 
and householder in said district and is worth the sum 
of five hundred dollars, exclusive of property exempt 
from execution, over and above all his just debts and 
liabilities. 

CI W. MOORE. 

ALF. EOFF. 

Subscribed and sworn to before me this 15th day of 
January, 1906. 

[Seal] RICHARD H. JOHNSON, 

Notary Public. 

The sufficiency of the sureties to the foregoing bond 
hereby approved this 15th day of January, 1906. 

JAS. H. BEATTY, 

Judge. 

[Endorsed]: No. 245. In the Circuit Court of the 
United States in and for the District of Idaho, Central 
Division. The Trade Dollar Consolidated Mining Com- 
pany, a Corporation, Plaintiff, vs. Alfred A. Eraser and 
A. R. Crusen, Defendants. Bond on Appeal. Filed Jan. 
15th, 1906. A. L. Richardson, Clerk. Johnson & John- 
son and J. F. Nugent, Solicitors for Plaintiff. 



vs. Alfred A. Fraser and A. R. Crusen. 223 



In the Circuit Court of the United States in and for the 
District of Idaho, Central Division. 

THE TRADE DOLLAR OONSOLI-\ 
DATED MIXING COMPANY (a Cor- 
poration), 

Plaintiff, 
hre. 

ALFRED A. FRASER and A. R, CRU 

SEN, 

Defendants., 

Citation. 

United States of America, 
Ninth Judicial Circnit, — ss. 

To Alfred A. Fraser and A. R. Crusen, and Your At- 
torneys : 

You are hereby cited and admonished to be and ap- 
pear at a session of the United States Circuit Court of 
Appeals for the Ninth Judicial Circuit, to be holden at 
the city of San Francisco in said circuit, on the 13th day 
of February, next, pursuant to an appeal allowed and 
on file in the clerk's office of the Circuit Court of the 
United States for the District of Idaho, Central Division, 
wherein the Trade Dollar Consolidated Mining Company 
is plaintiff and appellant and Alfred A. Fraser and A. 
R. Crusen are defendants and respondents, to show 
cause, if any there be, why the decree appealed from 
should not be corrected, and why speedy justice should 
not be done to the parties in that behalf. 



224 The Trade Dollar Consolidated Min. Co. 

Witness, the Honorable MELVILLE W. FULLER, 
Chief Justice of the United States, this 15th day of Jan- 
uary, in the year of our Lord one thousand nine hundred 
and six. 

JASi. H. BEATTY, 
Judge. 

Service of the foregoing citation by copy admitted 
this 17th day of January, 1906. 

ALFRED A. FRASER, 
Attorney for Respondent. 

[Endorsed] : No. 245. Original. In the Circuit Court 
of the United States in and for the District of Idaho, 
Central Division. The Trade Dollar Consolidated Min- 
ing Company, a Corporation, Plaintiff, vs. Alfred A. 
Fraser and A. R. Crusen, Defendants. Citation. Filed 
January 17th, 1906. A. L. Richardson, Clerk. Johnson 
& Johnson and J. F. Nugent, Solicitors for Plaintiff. 

Return to Writ. 

And thereupon it is ordered by the Court that the 
foregoing transcript of the record and proceedings in 
the cause aforesaid, together with all things thereunto 
relating, be transmitted to the said United States Cir- 
cuit Court of Appeals for the Ninth Circuit, and the 
same is transmitted accordingly. 

[Seal] Attest: A. L, RICHARDSON, 

Clerk. 



vs. Alfred A. Frascr and A. R. Cruscn. 225 

In the Circuit Court of the United States in and for the 
District of Idaho. 

THE TRADE DOLLAR CGNSOLI-' 
DATED MINING COMPANY (a Cor- 
poration), 

Appellants, 

vs. 

ALFRED A. FRASER and A. R. CRU- 

SEN, 

Respondents. 

Clerk's Certificate to Transcript. 

I, A. L. Richardson, Clerk of the Circuit Court of the 
United States, for the District of Idaho, do hereby cer- 
tify the foregoing transcript of pages numbered from 
1 to 196, inclusive, to be full, true, and correct copies 
of the pleadings and proceedings in the above-entitled 
cause, except Plaintiff's Exhibit "C" (the original of 
which is transmitted herewith), and that the same to- 
gether constitute the transcript of the record herein 
upon appeal to the United States Circuit Court of Ap- 
peals for the Ninth Circuit. 

I further certify that the costs of the record herein, 
amounting to the sum of $ 119. 50, has been paid by the 
appellants. 

Witness my hand and the seal of said Court, affixed 
at Boise, Idaho, 26th day of January, 1906. 

[Seal] A. L. RICHARDSON, 

Clerk. 



226 The Trade Dollar Consolidated Min. Co. 

[Endorsed] : No. 1305. United States Circuit Court 
of Appeals for the Ninth Circuit. The Trade Dollar Con- 
solidated Mining Company, a Corporation, Appellant, 
vs. Alfred A. Eraser and A. R. Crusen, Appellees. Tran- 
script of Record. Upon Appeal from the United States 
Circuit Court for the District of Idaho, Central Division. 
Filed February 2, 1906. 

F. D. MjONOKTON, 
Clerk. 














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No. 1305. 



IN THE 



INTO) STA1B CIRCUIT COURT Of APPEALS 



FOR THE NINTH CIRCUIT, 



THE TRADE DOLLAR CONSOLIDATED", 
MINING COMPANY (a Corporation), 

Appellant , 
vs. 
ALFRED A. FRASER and A. R. CRUSEN, 

Appellees. 



BRIEF POR APPELLANT. 



Upon Appeal from the United States Circuit Court for the 
District of Idaho. 



RICHARD H JOHNSON, and 
NORMAN M. RUICK, 

Solicitors for Appellant. 



Filed .1906. 

Clerk. 

Statesman Printing- Co., Boise, Idaho. 



FILED 

.HUM 15W06 



IN THE 



UniTED Sim CIRCUIT (OIT Of APPEU5 

FOR THE NINTH CIRCUIT. 



THE TRADE DOLLAR CONSOLIDATED 
MINING COMPANY (a Corporation), 

Appellant, 
vs. 
ALFRED A. FRASER and A. R. CRUSEN, 

Appellees. _, 



BRIEF FOR APPELLANT. 



Upon Appeal from the United States Circuit Court for the 
District of Idaho. 



Statement. 

This is a suit in equity instituted by plaintiff and appel- 
lant for the purpose, primarily, of quieting appellant's 
title to certain water rights and property, as against two 
water right permits granted to defendants in accordance 
with a statute of Idaho and under which they claim rights 
adverse to those of the appellant. The bill of complaint 
also prays that the said permits be cancelled as a cloud 
•upon appellant's title to its property and that it be se- 
cured in its possession thereof, and that defendants be en- 
joined from interference with plaintiff's use and enjoy- 
ment of its property and for general relief. 

The jurisdiction of the Court below was invoked on the 
ground of diverse citizenship of the parties, appellant be- 



ing a corporation organized and existing under the laws 
of Kentucky and a citizen of that State, and the appellees 
both being citizens of Idaho. 

The suit was heard below on bill and answer and the 
testimony taken on behalf of the appellant, no testimony 
having been taken on the part of the appellees. 

The material facts set up in the bill and fully substan- 
tiated by the testimony, are substantially as follows: 

The appellant is engaged in the business of mining and 
milling ores in Owyhee County, Idaho, and the generating 
of electrical power for the purpose of operating its mills 
and mining machinery and is also engaged in selling to 
the general public electrical power for mining, irrigation, 
lighting and various commercial uses. The appellant's 
grantor by his two certain water right and dam-site lo- 
cations made in the months of January and May, 1900, lo- 
cated, appropriated and claimed the right to ten thousand 
cubic feet per second of the waters of Snake Kiver, at a 
place known as Swan Falls, between the Counties of Ada 
and Owyhee, State of Idaho. These appropriations were 
stated to be for the purpose of power for motive, manu- 
facturing, mechanical, electric light, electric power, and 
other useful and beneficial purposes and for irrigation by 
means of pumping or otherwise, and the places of intended 
use were specified as the mines near Silver City, Idaho, 
and for the various purposes above named in the Counties 
of Ada, Canyon, Owyhee, Lincoln, Cassia and other places 
in Idaho and perhaps in Oregon. That the water was to be 
diverted by means of a dam and that the plans and specifi- 
cations of the dam and dam-site would be filed with the 
State Engineer of Idaho. 

These appropriations were made in accordance with the 



statute of Idaho relating to water rights, in force at that 
time and copies of the location notices are contained in 
the transcript at pages 143 to 151. 

Thereafter, in June, 1900, these water rights were con- 
veyed by deed to appellant ( Trans, p. 151 ) . 

In the month of July, 1900, appellant commenced the 
construction of a dam and power plant at Swan Falls, 
for the purpose of applying all of the water appropriated 
to the beneficial uses mentioned in the notices of appro- 
priation. 

The plans were first approved by the State Engineer as 
required by law (testimony of D. W. Ross, ex-State En- 
gineer, Trans, pp. 122-23). 

The improvements already constructed consist of a rock 
crib filled dam about 500 feet in length from the Owy- 
hee County side of the river to a rock island near the 
center of the river and a concrete masonry power house 
and dam from this island to the Ada County side of the 
river, about 450 feet in length. This portion of the dam 
was so constructed that throughout its entire extent it 
could be utilized for water wheels of the same type as 
those already installed. At the southerly end of this 
part of the dam a power house of concrete masonry has 
been constructed in the most approved manner and of the 
most permanent material, and this power house forms a 
section of the concrete portion of the dam. The remainder 
of this part of the dam is built throughout of concrete 
masonry with butresses the same distance apart and of the 
same dimensions as those in the power house, so that the 
power house may be extended and additional water wheels 
and equipment installed as rapidly as the plans of the ap- 
pellant are carried out. At the time of the commence- 



ment of this suit the appellant had completed ready for 
equipment six bays or spaces for water wheels, all being 
of exactly similar dimensions and construction, and there 
are ten additional spaces for the installation of ten more 
units or a total of sixteen water wheels between the pres- 
ent power house and the north bank of the river. (See 
map of appellant's dam, Trans, p. 227.) At present the 
power house contains four seventy-two-inch water wheels 
with a capacity for developing 900 horse-power at low wa- 
ter stage of the river, at which time each wheel discharges 
538 cubic feet of water per second. The structure was 
specially designed to involve two salient considerations: 
First, the height of the dam was so determined that the 
waterfall created would be proper for having one water 
wheel operate one generator, that water wheel being the 
largest commercially available. If the dam were of less 
height or the head of water reduced the water wheel would 
not operate the generator. If the size of the generator 
was increased the dam would have to be made higher and 
conversely if the generator had been smaller. The other 
salient feature was the creation of that portion of the 
dam south of the island of such a length as to preserve 
the magnitude of the waterfall substantially the same at 
low water and high water. (Testimony Thos. T. Johnston, 
Trans, pp. 187-88.) The head of water created by the 
dam is approximately 19 feet and the quantity of water 
required, under this head, to operate the four wheels at 
present installed, is about 2,150 cubic feet per second, and 
the Court below so held. To operate the total installation 
in the sixteen- wheel bays, when completed, will require ap- 
proximately the entire 10,000 cubic feet per second of wa- 
ter appropriated. (Testimony of Frederic Irwin, Trans. 



p. 104; D. W. Ross, Trans, p. 123, and R, H. Britt, Trans. 
p. 115.) This 10,000 cubic feet per second of water in- 
cludes substantially all the water flow of the river at 
Swan Falls and much more than its flow at low water 
stages, and the Court below so held. ( Trans, p. 204. ) The 
quantity of water flowing in the river at that point at low 
water stage of the river during July, August and Septem- 
ber of each year averages 4,500 cubic feet per second 
(Trans, p. 122). 

Appellant has also constructed a transmission line 30 
miles in length by which the electrical power generated 
at the plant is conducted to and used in the operation of 
appellant's mines and mills in Owyhee County, and also 
in the operation of numerous mining properties owned by 
other parties. 

The power has also been conducted by appellant to the 
towns of Silver City, Dewey and Murphy in said county, 
where it is sold to the inhabitants for lighting purposes 
( Trans, p. 105 ) . The mining properties belonging to ap- 
pellant and operated by this electrical power comprise 
about 800 acres in area and the underground workings 
consist of about 15 miles of accessible drifts, and in its op- 
eration about 225 men are employed daily throughout the 
year (Trans, p. 194). 

It would be impossible to operate these properties at 
a profit except by the use of this power, the cost of fuel 
in that locality being prohibitive (Trans, pp. 102, 117, 
194). 

Between the time of the commencement of the work in 
the spring of 1900 and the granting to defendants of the 
adverse water right permits, in November, 1904, appellant 
had expended over $400,000 in improvements as a part of 



6 

its plans for the application of the entire 10,000 cubic feet 
per second of water to a beneficial use. The purpose of 
appellant in constructing the dam was to utilize within a 
reasonable time the entire 10,000 cubic feet per second of 
water appropriated in order to more economically operate 
its own properties and to derive a revenue from the sale 
of the surplus power. In addition to the construction of 
the works above mentioned, and since December, 1902, 
appellant has employed mechanical and electrical engi- 
neers to make reports with reference to the installation 
of additional machinery at the Swan Falls plant and has 
had surveys made of the lands lying along the Snake River 
that could be irrigated by pumping and has also had re- 
ports made and specifications prepared with a view of con- 
ducting electric power from its plant to numerous towns 
along the Oregon Short Line Railroad. The appellant 
also contemplated supplying several dredges engaged in 
working the sands of the river for placer gold, with power. 
These proposed works would have required the installing 
of a large amount of additional machinery and the cor- 
responding use of more water. Arrangements had been 
practically completed to carry out these plans in 1904, 
previous to the appellees' applications for permits, here- 
after referred to, the granting of which rendered their 
postponement or suspension necessary until the rights of 
the parties could be adjudicated. 

On the 2nd day of November, 1904, the appellees and 
one F. B. Whitin, filed in the office of the State Engineer 
of Idaho two applications for permits to divert the waters 
of Snake River for power purposes at Swan Falls. One 
of these applications was for the diversion of 2,000 cubic 
feet per second of water on the Ada County (north) side 



of the river and the other was for the diversion of 2,000 
cubic feet per second of water on the Owyhee County 
(south) side, the point of diversion in the former being 
300 feet above appellant's dam and in the latter 500 feet 
above the other end of the dam, and the points of intended 
use being the two proposed power houses to be located 
about the same distances below appellant's dam, one on 
each side of the river. The water is to be conveyed from 
the points of diversion to the points of intended use by 
means of two canals with headgates 80 feet in width and 
18 feet in height and the dimensions of these canals are 
to be 65 feet in width at bottom, 81 feet in width at water 
line and the depth of water 8 feet. The canal on the Owy- 
hee County side was to be within 35 feet of the appellant's 
dam and on the Ada County side within 100 feet. The es- 
timated cost of the works under each permit was placed 
at |50,000 and the financial resources available for each 
was stated to be f 10,000 cash on hand, and bonds to be 
Issued for the balance. The purposes of the appropriation 
of water were stated to be for mining, power, manufactur- 
ing or transportation. These applications were each ac- 
companied by a map or plat made by a surveyor from 
actual surveys, as required by law, showing the proposed 
works. All of the proposed works, including the head- 
gates, canals and power houses were to be located on land 
owned by the appellant by virtue of patents from the gov- 
ernment. On the 29th day of November, 1904, the State 
Engineer granted to the appellees each of these permits 
as applied for, and fixed the time for the completion of the 
construction of the works at Hye years from the date of 
the permits, or November 29, 1909, and allowed four years 
thereafter, or until November 29, 1913, for the complete 



application of the water to the proposed use. These per- 
mits were thereupon duly recorded in the office of the 
State Engineer as provided by law. Prior to the granting 
of the permits the said Whitin sold, assigned and trans- 
ferred all his interest in each of said applications to ap- 
pellee, A. A. Fraser, and the latter sold, assigned and 
transferred an undivided one-third interest therein to 
appellee Crusen. Certified copies of these permits and 
the maps accompanying the same are a part of the tran- 
script, pp. 19 to 32. 

On December 23d, 1904, appellant instituted this suit 
and applied for a temporary injunction. 

The appellees filed an answer and the injunction was 
denied by the Court. 

The bill also sets forth that the proposed works of ap- 
pellees could not be constructed without endangering the 
appellant's dam and power plant and threatening its total 
destruction, by reason of the fact that neither end of 
the dam is joined to solid rock and the formation of the 
banks consist of loose earth mingled with large loose rock 
which is particularly susceptible to erosion by running 
water and that great care is required to protect the banks 
of the river adjacent to the abutments of the dam, espec- 
ially at times of high water. It also appears that in addi- 
tion to the danger of causing the dam to be washed away, 
the construction of the proposed work and the diversion 
of the quantity of water claimed by appellees would so 
affect and reduce the head of water created by the dam as 
to prevent the operation of the water wheels and machin- 
ery of appellant's power plant and compel it to shut down 
its plant and suspend its mining and other operations, and 
that in proportion as the head of water is reduced in the 



9 

manner proposed by the appellees, the output of power is 
relatively diminished. The evidence shows that the ap- 
pellant's plant is situated in a narrow canyon seven hun- 
dred feet below the general level of the country ; that there 
is barely room on the north side of the river for the dwell- 
ing houses necessary for the employees of the company 
and that the construction of the proposed canal as shown 
on appellees' map would take away practically all the 
available ground in the vicinity of appellant's property 
( Trans, p. 83 ) . It further appears that there are numer- 
ous other available sites along Snake River which are un- 
occupied and unappropriated where there is equally as 
great fall and which are as accessible and as favorably sit- 
uated as the place where appellant's plant is located, which 
appellees might avail themselves of without injury to ap- 
pellants (Trans, pp. 91-93 and 126, where this fact is ad- 
mitted by appellees). The bill further alleges that the 
said permits are clouds upon appellant's titles to its prop- 
erty and have greatly depreciated the value thereof, and 
that appellant's rights to the 10,000 cubic feet per second 
of water were acquired long prior, and are superior to 
any right or claim of right of the appellees thereto or to 
any part thereof. Appellees in their answer deny sub- 
stantially all of the material allegations of the bill except 
as to the two permits, and placed appellant on its proof. 
They set up repeatedly in the answer that appellant has 
never appropriated, diverted or applied to a beneficial use 
more than 1,000 cubic feet per second of the water and 
does not own and is not entitled to divert, appropriate or 
use the waters of Snake River to exceed 1,000 cubic feet 
per second, and deny that appellant has used reasonable 
diligence to apply any water in excess of 1,000 cubic feet 



10 

per second, to a beneficial use. These allegations and de- 
nials are repeated in paragraphs 2, 3, 4, 5, 6, 8 and 9, of 
the answer and paragraph 9, while alleging, on informa- 
tion and belief, that appellant has not appropriated or ap- 
plied to a beneficial use to exceed 1,000 cubic feet per sec- 
ond of water, also alleges, that, nevertheless should it be 
shown to the Court that the appellant has appropriated 
an amount in excess thereof, that it is not the intention 
or purpose of appellees to claim the right to use or inter- 
fere with the use of any of the waters which have actually 
been appropriated and applied to a beneficial use by ap- 
pellant, and that they acknowledge appellant's priority 
to the extent of appellant's actual appropriation and use. 
Appellees also deny that the construction of their proposed 
canals would injure or threaten the destruction of appel- 
lant's dam and allege that they could be constructed so as 
not in any way to interfere, embarrass, threaten or injure 
appellant's dam or power plant, and all of the allegations 
on this subject in the bill are denied in the answer. 

The answer also sets up that appellees do not intend 
to go upon appellant's ground or attempt to construct said 
canals or in any manner interfere with said premises un- 
til they have filed their suit in condemnation for a right 
of way for their canals and the right to use said property, 
which would not be done for some four or five months, 
as the appellees were then engaged in financing the propo- 
sition and which was then well advanced. No testimony 
was introduced on the part of appellees in support of theii 
answer and the condemnation proceedings have never been 
instituted. The Court below rendered a decree quieting 
appellees' title, as against the said permits, to 2,150 cubic 
feet per second of the waters of Snake River at Swan 



11 

Falls, but failed and refused by its decree to grant any 
further relief. 

Specification of Errors. 
Appellant (plaintiff below) specifies the following er- 
rors upon which it will rely upon this appeal, based on 
the Assignments of Error heretofore duly filed ( Trans» pp. 
214-217) : 

1. The Court by its decree should have determined the 
amount of water which can be diverted from Snake Kiver 
through the works constructed by appellant, in excess of 
the 2,150 cubic feet per second adjudged by the decree to 
have been beneficially applied, and should have set a time 
within which such amount should be applied to the bene- 
ficial purpose for which it was intended, not exceeding 
the time allowed by the statutes of Idaho, to wit, four 
years from the date of the decree. 

2. The Court should have decreed that plaintiff is en- 
titled to a priority of right, as against the defendants, to 
a quantity of water from Snake River sufficient at all 
times to maintain a head of 19 feet on the water wheels 
at plaintiff's dam and power plant; and that defendants 
be enjoined and restrained from any and all such inter- 
ference with or use of said water as would lower or re- 
duce such head. 

3. The Court should have decreed that the diversion 
by defendants of the water claimed and proposed to be 
diverted by them, at the place, in the manner and by the 
means proposed by defendants, would reduce the 19-foot 
head of water created by the construction of plaintiff's 
dam; that it is necessary to the successful operation of 
plaintiff's power plant that such head be maintained un- 
diminished and that plaintiff is entitled to have the same 



12 

maintained ; and restrained and enjoined defendants from 
so diverting said water. 

4. The Court should have decreed that a diversion of 
water by defendants as, and at the point, proposed by 
them from the slack water or pond above plaintiff's dam 
across Snake Kiver would constitute an invasion of the 
rights of plaintiff and would interfere with the use by 
plaintiff of the water acquired by its prior appropriation ; 
and should have enjoined and restrained defendants from 
so diverting water, as proposed by them, above said dam. 

5. The Court should have decreed that a diversion by 
the defendants, at a point above the dam of plaintiff, of 
the water claimed and proposed to be diverted by them, in 
the manner and by the means proposed by defendants, 
would injure and endanger plaintiff's dam and power plant 
and tend to its destruction, and would render its opera- 
tion more costly and difficult ; and enjoined and restrained 
the defendants from diverting water from Snake River as, 
and at the point, proposed by them or at any other point 
or place whereby plaintiff's dam and power plant would 
be endangered or rendered more difficult, or expensive, to 
operate. 

6. The Court should have decreed that the construction 
of the ditches (or canals), either or both, as planned and 
proposed by defendants, or at all, around the end or ends 
of plaintiff's dam, would endanger plaintiff's dam and 
power plant and render more difficult and costly its op- 
eration, and, ultimately destroy the same; and enjoined 
and restrained defendants from excavating for, or con- 
structing, said ditches, or either of them, around the end, 
or ends, of said dam. 

7. The Court should have granted plaintiff's prayer 



13 

for an injunction in each and every of the particulars here- 
inbefore specified; and should have enjoined defendants 
from interfering with the use by plaintiff of the 2,150 
cubic feet per second theretofore applied to a beneficial 
use, including the use, as the same should be applied to a 
beneficial use, of the quantity of water remaining of plain- 
tiff's appropriation of 10,000 second feet, 

8. The Court should have decreed that plaintiff recover 
its costs from defendants. 

Argument. 

1. The Court by its decree should have determined the 
amount of water which can be diverted from Snake River 
through the works constructed by appellant, in excess of 
the 2,150 cubic feet per second adjudged by the decree to 
have been beneficially applied, and should have set a time 
within which such amount should be applied to the bene- 
ficial purpose for which it was intended, not exceeding the 
time allowed by the statutes of Idaho, to wit, four years 
from the date of the decree. 

The Circuit Court treated this action as one to quiet 
title, of which action it had jurisdiction, and proceeded to 
determine the respective rights of plaintiff and defend- 
ants and entered a decree quieting plaintiff's title to the 
use of 2,150 cubic feet per second of the water of Snake 
River. 

Having assumed jurisdiction, it should have retained it 
for all purposes of the action to the end that all matters in 
difference between the parties to the action in relation to 
the appropriation, diversion, means of diversion and appli- 
cation to a beneficial use should be determined, and com- 
plete relief afforded within the general scope and sub- 
ject matter of the action. 



14 

Ober vs. Gallagher, 93 U. S. 199. 
Ward vs. Todd, 102 U. S. 327-29. 
United States vs. Union Pacific Ry. Co. 160 U. S. 

1, 50. 
Hanley vs. Beatty, 117 Fed. 59-67. 
Feeney vs. Chester, 7 Idaho, 324, 328. 
Burke Land Co. vs. Wells, Fargo & Co. 7 Idaho, 56. 

In determining questions relating to water rights in 
the several States the Federal Courts enforce the laws 
pertaining to the subject, of the State in which the streams 
are located, and appellant contends that the Court erred 
in that it failed to determine the amount of water which 
could be diverted by appellant's works in excess of the 
amount already beneficially applied, and in failing to set 
a time within which the remainder should be applied to a 
beneficial use, not exceeding the period prescribed in the 
statutes of Idaho, which are as follows: 

"An act to Regulate the Appropriation and Diversion 
"of the Public Waters and to Establish Rights to the Use 
"of Such Waters and the Priority of Such Rights. 

"Section 38. In alloting the waters of any stream by 
"the District Court according to the rights and priorities 
"of those using such waters, such allotment shall be made 
"to the use to which such water is beneficially applied, and 
"when such water is used for irrigation, the right con- 
"firmed by such decree or allotment shall be appurtenant 
"to and shall become a part of the land which is irrigated 
"by such water, and such right will pass with the convey- 
ance of such land, and such decree shall describe the 
"land to which such water shall become so appurtenant. 
"And the amount of water so alloted shall never be in ex- 



15 

"cess of the amount actually used for beneficial purposes 
"for which such right is claimed : Provided, That in the 
"case of works capable of diverting more water than is ap- 
"plied to a beneficial purpose at the time of the rights of 
"the person or persons owning or using such works are 
"adjudicated by the Court, the right only to the water 
"beneficially applied at the time of making such allotment 
"shall be confirmed by the Court, and the Court shall as- 
certain the amount of water which can be diverted 
"through such works in excess of such quantity beneficial- 
ly applied, and shall set a time when such amount shall 
"be applied to the beneficial purpose for which it is in- 
"tended, which time shall not exceed four years from the 
"date of the decree issued by such Court under such ad- 
judication, and any person using any of such water which 
"was not beneficially applied at the time of such adjudica- 
tion shall, before the expiration of the time set for such 
"beneficial application, make proof of such beneficial use 
"in the manner provided in section seven (7) of this act, 
"and such right, when confirmed in the manner provided 
"in this act shall relate to the priority established by such 
"Court, and if such application of any of such water shall 
"be made subsequent to such date, then the priority of the 
"right to the use thereof shall be determined in the man- 
"ner provided in section eight (8) of this act." 

"Section 41. All rights to divert and use the waters of 
"this State for beneficial purposes shall hereafter be ac- 
quired and confirmed under the provisions of this act. 
"And after the passage of this act, all the waters of this 
"State shall be controlled and administered in the manner 
"herein provided, and all acts or parts of acts which may 
"be in conflict with this act are hereby repealed." 



16 

The above is from the act approved March 11, 1903 ( Ses- 
sion Laws, Idaho, 1903, pp. 250-252), and according to a 
well settled rule, a Circuit Court of the United States, 
having otherwise jurisdiction of the case, should admin- 
ister the same relief under a State statute, which the State 
Court can grant, subject to the qualification that it does 
not impair any constitutional right. 

Clark vs. Smith, 13 Pet. 195. 

Broderick's Will, 21 Wall. 503, 520. 

Holland vs. Challen, 110 U. S. 24. 

Chapman vs. Brewer, 114 U. S. 170-71. 

Scott vs. Neeley, 140 U. S. 106, 109. 

Cowley vs. Northern Pae. By. Co. 159 U. S. 569, 
582-83. 

The evidence shows (Trans, pp. 143-145, 148-149) that 
appellant's grantor located and appropriated 10,000 cubic 
feet per second of the waters of Snake Biver to be diverted 
at the point where the dam of appellant was subsequently 
located ; that appellant actually diverted the 10,000 cubic 
feet called for by the notice and had, at the time this ac- 
tion was commenced, applied to a beneficial use in the pro- 
duction of electric power 2,150 cubic feet per second of 
the waters of said stream in the operation of its power 
plant located at the dam. This fact was found by the 
Court ( Trans, p. 210 ) and is recited in the decree. 

It further conclusively appears from the evidence that 
the dam and power plant of appellant were specially de- 
signed and constructed at great additional expense for the 
express purpose of increasing the capacity of the plant 
by putting in additional water wheels and utilizing all of 
the water claimed and diverted by appellant. This is 
testified to by several of the witnesses. 



17 

Mr. Frederic Irwin, general manager of the appellant, 
testified on that subject, as follows: 

"Q. State the facts, and state what acts they did as 
"tending to show what their intention was, both in con- 
struction of the dam and otherwise. 

"A. In the construction of the dam provision was orig- 
inally made to apply all the water claimed to a beneficial 
"use. 

"Q. Now, right there, state what amount of water that 
"was? 

"A. The original location calls for 10,000 cubic feet 
"per second, and in the construction of the dam they al- 
lowed for 16 wheel bays, and as each wheel of the same 
"type as are now installed calls for over 500 cubic feet of 
"water per second, the total installation would therefore 
"call for between eight and nine thousand cubic feet per 
"second if the head remained as it is now." 

"Q. Well, is it a fact that the head would remain the 
"same as it is now? 

"A. No, sir; the head would be lowered, and conse- 
quently it would require more water to operate that num- 
"ber of wheels, so that if the number of wheels were in- 
Stalled that the wheel bays call for it would practically 
"require the entire 10,000 cubic feet per second to drive 
"them to their full capacity." (Trans, pp. 104-05.). 

Mr. E. H. Britt, civil engineer, testified as follows : 

"Q. When all of these spaces are converted into pen- 
Stocks and supplied with wheels, do you know how much 
"of the waters of the river it would require, or about how 
"much it would require to operate them? 

"A. Yes, it would require approximately 10,000 cubic 
"feet per second." (Trans, pp. 115-16.) 



18 

Mr. Frank C. Horn, now consulting engineer of the U. 
S. Reclamation Service and assistant chief engineer in the 
construction of appellant's dam, testified : 

"Q. You stated that a portion of this dam was built 
"of concrete. You may state particularly how that por- 
tion of the dam was constructed with reference to its fu- 
ture use. 

"A. It was a wall five feet thick, with butresses on the 
"lower side for the purpose of providing future wheel bays 
"for the installation of other wheels; and the number of 
"wheels installed were four 72-inch McCormick wheels. 
"Spaces were left for future additions by these butresses. 
"Q. Might there have been a saving in the expense of 
"construction of this portion of the dam if the company 
"had simply intended to use the wheels that are installed 
"at present without enlarging it? 

"A. There would have been a saving. 
"Q. In what respect? 

"A. It would have taken less material to build that 
"dam and less labor to do so." (Trans, pp. 131-32.) 

Mr. Thomas T. Johnston, who supervised the construc- 
tion of the dam, testified as follows: 

"This part of the structure is in the form of a vertical 
"wall five feet thick, supported at the rear by concrete 
"masonry buttresses five feet thick. It is part of the de- 
"sign of the structure that in the future the spaces be- 
tween these butress walls may be occupied by water 
"wheels in case any extension of the mechanical part of 
"the power plant need be made." (Trans, p. 189.) 

See also testimony of James Bryan ( Trans, pp. 199-201. ) 

A reference to the plan of the works (Trans, p. 227) 

without further citation of testimony on this question 



19 

shows clearly that arrangements have been provided, in 
the designing of the dam and spacing of the butress walls, 
for 16-wheel bays. 

It is shown by the evidence of these witnesses that the 
dam was constructed much more expensively than the 
particular needs of the mining company required, with 
a view to developing a larger amount of power and dis- 
posing of it to other mines in the neighborhood and for 
various other public uses as the demand therefor should 
arise. The dam, electrical plant and electrical installa- 
tion costing more than f 350,000 (Trans, p. 195) and since 
that time there has probably been expended more than 
$40,000 additional for electrical apparatus. (Ibid.) In 
the dam proper were constructed six-wheel bays, and four 
water wheels of the largest size were placed in position 
and use. This portion of the dam was so constructed as 
to admit of the installation of 12 more wheels of like ca- 
pacity, or 16 in all, and the testimony of the witnesses 
just cited, and which is not contradicted, goes to show that 
the company in making the large expenditure did so with 
an eye to the future development of the region adjacent, 
and the demand for power for pumping water for irriga- 
tion, for electric lighting in cities and towns and for the 
operation of other mines in that section. 

These facts being established, plaintiff was entitled un- 
der the statute hereinbefore recited to a decree fixing the 
amount of water which could be diverted by its works and 
setting a time within which the remainder, not already 
applied to a beneficial use, should be so applied. 

The Circuit Court assented in principle to this conten- 
tion and in its findings and conclusions (Trans, p. 206) 
states : 



20 

"Beyond question, under our laws, a party may be pro- 
jected in the use of all the water he actually appropriates 
"and uses, even if it be every drop that flows in as great 
"a river as the Snake. Not only that, but when he has 
"used but a part of what he claims, he will be allowed a 
"reasonable time to make use of the balance, provided he 
"shows by his work and improvements good faith in re- 
"ducing all he claims to his actual use." 

This is exactly what the statute above quoted means, and 
notwithstanding the Court found no element of good faith 
lacking on the part of plaintiff, yet he failed to comply 
with the statute or to grant a decree in accordance with 
the principle of law set out in his conclusions. 

Irrespective of the section of the statute above quoted, 
the Supreme Court of Idaho has held that the trial court 
should find, when warranted by the facts, that one of the 
parties had a prior and superior right to the other, and 
had "prosecuted the construction of its diverting works 
with reasonable diligence." 

Sand Point Water & Light Co. vs. Panhandle De- 
velopment Co. 83 Pac. 347. 

2. The Court should have decreed that plaintiff is en- 
titled to a priority of right, as against the defendants, to 
a quantity of water from Snake River sufficient at all 
times to maintain a head of 19 feet on the water wheels at 
plaintiff's dam and power plant; and that defendants be 
enjoined and restrained from any and all such interference 
with or use of said water as would lower or reduce such 
head. 

The trial court found (Trans, p. 206) that— 

"There is one proposition involved in this case which 



21 

"seems clear. The complainant has erected a dam across 
"that river, by which it creates a waterfall of 19 feet where 
"practically none before existed, and thereby it has cre- 
"ated a power for its plant. This 19-foot fall exists, only 
"while the dam is filled to the top and of course any de- 
crease in the height of the water lessens the power and 
"efficiency of the plant accordingly. The plaintiff is en- 
"titled to such protection of this dam that the water in 
"it shall not be lowered below the 19 feet by the erection 
"of any other works by other parties." 

The creation of this head of water by the construction 
of the dam is testified to by each of the principal witnesses 
in the case, most of whom were civil, hydraulic or electrical 
engineers — some of them combining all of these profes- 
sions. 

Each of these witnesses testified to the necessity for 
maintaining the 19-foot head on the water wheels undi- 
minished, otherwise the plant would be crippled, its ef- 
ficiency impaired and a complete installation of new ma- 
chinery made necessary. (Witness Wiley, Trans, p. 84; 
Irwin, p. Ill; Britt, p. 116; Koss, p. 123; Horn, p. 131; 
Johnston, p. 189, and Bryan, pp. 200-201.) 

The trial court in its findings above quoted adopted 
the views of these engineers as its own views, both as to 
the fact of the creation of the head of 19 feet by the con- 
struction of the dam and as to the necessity for its main- 
tenance, and declared it due to the plaintiff that it should 
be protected in the enjoyment and use of the power thus 
created, yet the Court failed to grant plaintiff any relief 
or afford to it any protection in the enjoyment of a right 
to which it was admittedly entitled. 

A discussion of the reasons advanced by the Court for 



22 

its failure to grant such protection will be found further 
along in this brief. 

3. The Court should have decreed that the diversion by 
defendants of the water claimed and proposed to be di- 
verted by them, at the place, in the manner and by the 
means proposed by defendant would reduce the 19-foot 
head of water created by the construction of plaintiff's 
dam; that it is necessary to the successful operation of 
plaintiff's power plant that such head be maintained un- 
diminished and that plaintiff is entitled to have the same 
maintained ; and restrained and enjoined defendants from 
so diverting said water. 

In discussing the points raised by this specification, it 
will not be necessary or expedient to repeat what has al- 
ready been said on a similar question involved in the pre- 
ceding specification, but there is a new question raised 
by the specification of error now under discussion in that, 
as appellant contends, under the evidence in this case — 
direct, conclusive and uncontradicted — a diversion of the 
water by defendants in the manner and by the means pro- 
posed by them would reduce the 19-foot head of water cre- 
ated by the construction of plaintiff's dam, and inasmuch 
as it is conceded, or at least so found by the Court, that 
it is necessary to the successful operation of plaintiff's 
power plant that such head of water be maintained undi- 
minished, plaintiff was entitled to have the Court so de- 
clare by its decree. 

This was one of the questions raised by the pleadings 
(Tran. pp. 13-14) and much of the evidence introduced 
was to this point; reference being made to the testimony 
of the several witnesses and to the pages in the transcript 
last hereinbefore referred to. 



23 

So appellant contends that not only should the decree 
have declared plaintiff entitled, by virtue of its priority of 
appropriation, to the use and enjoyment of sufficient water 
at all times to maintain a uniform head of 19 feet, but was 
entitled, under the pleadings and the evidence in the case, 
to a decree declaring that a diversion of the water as pro- 
posed by the defendants and as shown by their permits 
and maps accompanying the same ( Ex. A. & B. Trans, pp. 
19-33), would reduce the head of water thus created by 
plaintiff to its injury. 

Specifications 4 and 5 may conveniently be considered 
together : 

The Court should have decreed that a diversion of water 
by defendants as, and at the point, proposed by them from 
the slack water or pond above plaintiff's dam across Snake 
River would interfere with the use by plaintiff of the wa- 
ter acquired by its prior appropriation; and should have 
enjoined and restrained defendants from so diverting wa- 
ter, as proposed by them, above said dam. 

5. The Court should have decreed that a diversion by 
the defendants, at a point above the dam of plaintiff, of 
the water claimed and proposed to be diverted by them, 
in the manner and by the means proposed by defendants 
would injure and endanger plaintiff's dam and power plant 
and tend to its destruction, and would render its operation 
more costly and difficult; and enjoined and restrained 
the defendants from diverting water from Snake River as, 
and at the point, proposed by them or at any other point 
or place whereby plaintiff's dam and power plant would be 
endangered or rendered more difficult or expensive to op- 
erate. 

Appellant, while conceding the right of a subsequent 



24 

appropriates to the surplus water flowing in a natural 
stream, denies the right of defendants to divert such sur- 
plus water from a pond produced by the construction of 
plaintiff's dam and above plaintiff's dam and especially is 
this true where to divert the water in the manner and by 
the means proposed in this case, the prior rights of plain- 
tiff to the use of the water would be interfered with. 

The right of appropriators to an easement or right-of- 
way over and across the public lands of the United States 
for ditches and canals was first formally recognized by 
Congress by the act of July 26, 1866 (14 Stat. 251). The 
right thus acquired is not held or acquired by continued 
adverse user or by prescription, but by grant, as has been 
decided by the Supreme Court of Idaho in at least two 
cases : 

Welch vs. Garrett, 51 Pac. 405. 

Ada County Farmers Irr. Co. vs. Farmers' Canal 
Co. 51 Pac. 990. 

This right to construct and maintain ditches and canals 
for the purpose of utilizing rights to the use of water, nat- 
urally includes such structures as shall be found necessary 
for such purpose. The right undoubtedly existed to con- 
struct the dam across Snake River, as was done by the 
plaintiff, and to flood its lands above, including the va- 
cant public lands of the United States as an incident to its 
construction, whereby a pond or lake was formed over the 
original channel of the stream. It is testified to by a num- 
ber of witnesses (Wiley, Trans, p. 86; Ross, p. 125), and 
it must be apparent to any one, that the construction of 
this dam whereby a head of water of 19 feet is produced 
is as complete and effectual a diversion as though a canal 



25 

had been constructed of a capacity sufficient to contain all 
the waters flowing in the stream. Plaintiff chose this 
method, as it had a right to do, as the best adapted for its 
uses ; the cheapest and most satisfactory, perhaps the only 
practical method by reason of the fact that Snake River 
flows through a deep depression or canyon in this particu- 
lar locality (Trans. 83). Conceding the right of a sub- 
sequent appropriator to appropriate and divert the surplus 
waters flowing in a natural stream, it is the contention of 
appellant that the waters of Snake Eiver, to the extent of 
10,000 cubic feet at least, have been diverted into a new 
channel at an elevation of 19 feet above the original, nat- 
ural, channel of the stream, and that by reason thereof 
the plaintiff has acquired a right to the use of the waters 
thus diverted by its dam. That this right constitutes real 
property under the statutes of Idaho (Idaho Code, 1901, 
Sec. 2348; Ada County Farmers' Irr. Co. vs. Farmers' 
Canal Co. 51 Pae. 990; 40 L. R. A. 485), and that any in- 
terference with the water thus diverted constitutes a con- 
tinuing trespass which entitles the plaintiff to relief by 
injunction. It must be apparent to the Court that the 
primary object of the defendants in making their appro- 
priations and locating their several points of diversion 
in the pond above plaintiff's dam, was not to appropriate 
the surplus water flowing in Snake River, so much as to 
appropriate the surplus power created by the large invest- 
ment made by plaintiff in constructing a costly dam. An 
examination of the permits applied for and obtained by 
the defendants and the maps accompanying their appli- 
cation (Exhibit A and B, Trans, pp. 19-33) show (pp. 20- 
27) that the water is to be diverted for power purposes 
only. What use to the defendants would be the surplus 



26 

waters of Snake River for power purposes, diverted at 
the point and by the means proposed by the defendants, 
except for the ninetoon-foot head, the new channel, created 
through the expenditures made by plaintiff, nineteen feet 
above the natural channel of the stream? 

This question was presented for decision to the Supreme 
Court of California in a case in some respect similar in 
Natoma Water & Mining Co. vs. Hancock, 101 Cal. 
42, 31 Pac. 112 and 35 Pac. 334. 

That case differs from this in that the rights of irrigators 
only were involved. No question of the creation of a head 
of water for power purposes by a prior appropriator to 
be availed of by a subsequent appropriator was considered ; 
the only question being the right to appropriate the surplus 
waters of the American River at a point in the pond above 
the dam constructed by another to divert water into his 
irrigation canal. This California case was first decided 
in Department, Mr. Justice MacFarland writing the opin- 
ion, concurred in by Justices DeHaven and Sharpstein, 
against the right of a subsequent appropriator of water for 
irrigation to divert the surplus water of the stream from 
a point in the pond above a dam constructed by the prior 
appropriator for the purpose of diverting water into its 
canal, and the reasoning in the opinion of Mr. Justice Mac- 
Farland seems to us to be sound in principle and sustained 
by authority, even on the facts of that particular case — 
much more so by the facts of the case we are now discuss- 
ng — and we refer the Court to the reasons given in that 
opinion in 31 Pac. 113-114 and in 101 Cal. 63. This de- 
cision in Department, however, was reversed on this point 
by the Court in Bank, Chief Justice Beatty writing the 



27 

principal opinion, 35 Pac. 334, 101 Cal. 42. This case is 
the only one which we have thus far discovered where in 
a decision has been rendered on facts similar to the case 
at bar and for that reason we shall refer to the final de- 
cision in the case at some length. Before proceeding to 
do so, however, we recur to our second proposition, and 
that is, that the defendants, even if entitled to divert the 
surplus waters of Snake River above plaintiff's dam, 
should be enjoined from doing so under the circumstances 
of this particular case by reason of the fact that it is shown 
by the testimony that such diversion can not be made with- 
out interfering with the prior rights of the plaintiff. On 
this point, as to the injury which would be inflicted on 
the plaintiff, amounting to the probable destruction of its 
dam and power plant, a reference to the testimony should 
now be made. 

The dam is constructed at a point in the river where 
it is divided into two channels by an island of lava rock 
(Wiley, Trans, pp. 79-80). The south channel (the Owy- 
hee end of the dam) is closed by a timber crib dam or wier. 
The north end of the crib dam is joined by a masonry abut- 
ment to the south end of the island in the river ; the south 
end of the crib dam is joined to a deposit of earth and boul- 
ders rising on a steep slope from the river's edge to a height 
of one hundred feet. This junction was made by means of 
a masonry abutment which was puddled into the material 
of which the south bank is composed. The dam is four 
hundred and twenty-four feet long between vertical abut- 
ments and at the times of flood the water passes ten feet 
in depth over its crest. 

The north channel is entirely closed by a concrete wall 
five feet thick backed up with buttresses approximately 



28 

every twenty feet; at the south end of this concrete dam 
the power plant is situated (Irwin, Trans, p. 102). For 
the details of the construction of the dam the Court is 
respectfully referred to pp. 79, 97, 101, 110, 114, 115, 123, 
129, 187 and 199 of the Transcript. 

Several of the witnesses testified to the nature of the 
soil or material at the end of the dam on the north and 
south banks. The testimony of Mr. Wiley (Trans, pp. 79, 
94 and 95, also that of Irwin, Britt, Horn, Ross and John- 
ston on pp. 108, 109, 115, 116, 130, 133, 187 and 189, show 
that no solid material was found against which to rest 
the abutments on the south bank of the river, the forma- 
tion here being a mass of earth and boulders. At the point 
where the dam joins the north bank of the river (Trans, p. 
95) is a rock formation with clay seams through it, where 
it was impossible to trace the bed rock and get connection 
with it — where it was impossible to get any solid connec- 
tion. The conditions met with were, therefore, such as to 
render the stability of the dam uncertain by reason of the 
liability of the ends of the dam to give way under pressure 
and the tendency of the water to cut around the ends of 
the dam (see testimony of Mr. Irwin, Trans, pp. 108 and 
109). 

We have called attention at some length to the evidence 
on this question because of the importance which appel- 
lant attaches to it, and because the circumstances and con- 
ditions here are such as to make Natoma Water and Min- 
ing Co. vs. Hancock, supra, and the final decision of the 
California Supreme Court (35 Pac. 334) an authority in 
favor of the appellant in the case. 

An analysis of the several opinions rendered in that 
case shows : 



29 

First. Three of the justices, in department, denied the 
right of a subsequent appropriator, for agricultural pur- 
poses, to divert water from a pond formed by a dam, con- 
structed by a prior appropriator to divert water into its 
irrigation canal. On rehearing, in bank, five of the jus- 
tices concurred in reversing the judgment in department, 
but Mr. Justice Paterson, in his concurring opinion (101 
Cal. 60, 35 Pac. 340), in which he was joined by Mr. Jus- 
tice Garoutte, sets forth the reasons for concurring and 
in this opinion makes the strongest possible showing for 
the appellant in this case. 

Says Mr. Justice Patterson : 

"Whether the defendants are entitled to tap the stream 
"or pond at any particular point is a question for the court 
"to determine upon all the circumstances. The plaintiff 
"has the right to build and maintain its dam and to flow 
"back the waters to any extent upon the public domain 
"necessary to fill its ditch in a reasonable manner and de- 
fendants have no right to interfere with plaintiff's works 
"or possessions so as to injure or endanger its dam or 
"other structure or to render its diversion of water suf- 
"ficient to fill its ditch more difficult or expensive than it 
"was before, and while operating in a reasonable and care- 
"f ul manner ; but when the purpose of plaintiff's dam has 
"been accomplished it can not prevent other from enjoying 
"the use of the waters running to waste unless they are 
"proposing to take the same at a point or in a manner that 
"will interfere with the free use and enjoyment of its wa 
"ter right or other property. Whatever structures it has 
"found necessary to build are its property and, whether 
"they be dam or side walls, probably no one would be per- 
mitted to cut through or under them under any circum- 



30 

"stances. But that is not a question in this case. Here 
"the side walls are natural banks of rock, and the area 
"above the dam which the plaintiff is entitled to flow and 
"exclusively occupy is, as stated before, a question for the 
"Court to determine upon all the circumstances of the 
"case." 

And again : 

"As stated before, the defendants have no right to im- 
"pose any additional burden upon the plaintiff, except such 
"as is necessary to preserve the surplus water from waste, 
"or subject its dam or ditch to an additional danger." 

The Judges in that case stood, therefore, two in favor of 
upholding the decision in department denying the right to 
divert the water above the dam ; two united with the Chief 
Justice in holding that the subsequent appropriator was 
not estopped from diverting the water at that place; two 
concurred in reversing the decision in department on the 
ground that there was no showing that such diversion 
would, to any extent, interfere with the rights of the prior 
appropriator, or that such diversion would lay any addi- 
tional burden upon it or endanger its property. A major- 
ity of the Court therefore in that case can be quoted as 
authority in favor of the contention of the appellant in 
this case — that defendants shall not be permitted to divert 
water from Snake Kiver above plaintiff's dam at the place, 
in the manner and by the means proposed, for the reason 
that such diversion would interfere with, and endanger the 
dam and other structures erected by appellant and render 
its diversion of water sufficient for its purposes more dif- 
ficult and expensive than it was before; would interfere 
with the free use and enjoyment of its water rights and 
property and lay additional burdens upon it. 



31 

Appellant contends therefore that the trial court erred 
in failing to make provision in the decree for the matters 
and things set out in Specifications 4 and 5. 

6. The Court should have decreed that the construction 
of the ditches (or canals), either or both, as planned and 
proposed by defendants, or at all, around the end or ends 
of plaintiff's dam, would endanger plaintiff's dam and 
power plant and render more difficult and costly its op- 
eration, and ultimately destroy the same ; and should have, 
by its decree, enjoined and restrained defendants from 
excavating for, or constructing said ditches, or either of 
them, around the end, or ends, or said dam. 

We have referred at some length to the testimony bear- 
ing upon the method of construction of the dam and power 
plant of appellant and the unstable character of the ma- 
terial on the banks of the stream, to which it became nec- 
essary to attach the ends of the dam. It was and is a 
question of vital importance in this case — and one of the 
questions involved in the pleadings and evidence and 
which the Court should have determined, as to whether 
the construction of the canals, as proposed by defendants, 
around the ends of plaintiff's dam would endanger that 
structure and the other improvements made by plaintiff. 

A considerable portion of the testimony taken in this 
case had a direct bearing upon this question, and it may 
be said that there is nothing in the record to contradict 
the testimony of the witnesses whom we shall quote on 
this point. 

Says Mr. Wiley, who was chief engineer in charge of the 
construction of the dam (Trans, p. 82) : 

"Such a canal would be extremely hard to maintain and 
"a break in it would result in rapid erosion and the es- 



32 

"tablishnient of a new channel for the river around the 
"south end of the dam, lowering the water to somewhere 
"near its original level." 

And again (p. 83) : 

"The proposed canal around the north end of the dam 
"would be a menace to the safety of the dam, though not 
"such a serious one as that around the south end, the ma- 
terial in the north shore being of a firmer nature, though 
"even here we were not able to make a complete junction 
"with the bed rock." 

Irwin (p. 108) : 

"I think the construction of the canal on the Owyhee 
"County (south) side would menace the property so seri- 
"ously in my opinion, that it would practically destroy 
"it." 

Britt (p. 116) : 

"In my opinion, it would endanger the existence of the 
"present dam to construct the proposed works on the south 
"side of the river." 

Eoss (p. 126) : 

"There is only one way possible for defendants to carry 
"out their plans in a w T ay which would not endanger the ex- 
isting works, and that would be for them to take advant- 
age of the existence of the dam by locating a power house 
"in the river the same as complainant had planned to do. 
"That would not involve the construction of canals." 

Horn (p. 130) : 

"A diversion of the water as shown by the maps con- 
nected with the defendants' application for permits 
"would be fatal to the dam and power plant of complain- 
"ant. The effect at the north end of the dam would be sim- 
ilar to that on the south end. This material would be 



33 

"subject to erosion, the same as on the south end, and 
"would cut out no doubt in a very short time and destroy 
"the dam." 

Johnston (p. 191) : 

"The existence of such canals as that proposed would at 
"all times be a menace to the safety of the property, and 
"this is particularly true of that canal proposed around 
"the southerly end of the dam." 

Bryan (p. 199) : 

"The construction of the canals, as shown on these plans 
(Exhibits A and B) would, in my opinion, be a very seri- 
"ous menace to the existing dam." 

Substantially the same testimony was furnished by those 
witnesses to the effect that the construction of these canals 
would hinder and obstruct the use of the plant. The at- 
tention of the Court is directed to the following pages of 
he transcript, where the testimony on this subject will be 
found : 

Wiley (p. 83-84) : 

"The construction of canals would isolate the plant, 
"prevent future extensions, reduce the head materially and 
"cause the water to back up in the narrow channel below 
"the dam." 

Irwin (p. 107) : 

"Construction of canals would force abandonment of 
"company's plans to utilize the water diverted by the dam." 

And Irwin (p. Ill) : 

"Diversion of water on north side of river would have 
"a tendency to back the water up and raise the tail water, 
"decreasing the efficiency of the machines." 

Britt (p. 116) : 

"The drawing off of the proposed quantity of water by 



34 

"the defendants would so lower the head of water now 
"being utilized by the Trade Dollar Company that the 
"efficiency and capacity of the present wheels would be 
"very seriously impaired.' ' 

Same (p. 117) : 

"The water in the tail race would be raised if the pro- 
posed works were constructed on the north side and the 
"proposed quantity of water discharged into that chan- 
"nel." 

Ross (p. 124) : 

"If the defendants were permitted to divert, as is pro- 
posed, 4,000 second-feet, it would be impossible to op- 
erate even one wheel of the four which are installed." 

Horn (p. 131) : 

"If the defendants' plans were fully carried out and the 
"4,000 cubic feet of water diverted, it would result in the 
"destruction of the present plant and render an entirely 
"new construction and rearrangement of the machinery 
"necessary." 

Same (p. 132) : 

"It would depreciate the value of the complainant's 
"property by destroying the head — reducing the efficien- 
cy." 

Johnston (p. 189-90) : 

"The diversion of water would cause reduction of head, 
"diminution of power and render necessary the installation 
"of other water wheels and a radical rearrangement of the 
"mechanical installation. It would lead to the abandon- 
ment of the existing water wheel installation, together 
"with its harness and paraphernalia, and the substitution 
"in place thereof of a new water wheel plant, together with 
"its wheel bays and foundations and an extension of the 



35 

"power house and rearrangement of the setting of the elec- 
trical apparatus. It would be equivalent to a reconstruc- 
tion of the plant." 

To the same effect is Bryan (p. 200-201). 

No testimony was offered on behalf of defendants in 
opposition to that of the foregoing witnesses, therefore the 
proof is conclusive that the construction of the canals, 
either or both, as planned by defendants, would obstruct 
the use of the plant, depreciate its value and lead to its 
ultimate destruction. 

7. The Court should have granted the plaintiff's prayer 
for an injunction in each and every of the particulars 
hereinbefore specified; and should have enjoined the de- 
fendants from interfering with the use by plaintiff of the 
2,150 cubic feet per second theretofore applied to a bene- 
ficial use, including the use, as the same shall be applied 
to a beneficial use, of the quantity of water remaining of 
plaintiff's appropriation of 10,000 second-feet. 

No further specific reference to the testimony contained 
in the record need be made in the discussion of the ques- 
tion of injunction. A mere statement of the facts carries 
with it the conviction, that, except for the interference of 
a court of equity, great and irreparable injury would re- 
sult to plaintiff by the acts which defendants propose. 

Indeed, the trial court in its conclusions has, in at least 
two instances, asserted the right of the appellant to an 
injunction, provided it could bring itself within the rules 
on that subject, substantially as laid down in Kerr on 
Injunctions, Section 198, which section the trial court 
quotes as the basis for its refusal to grant relief by injunc- 
tion. 



36 

In the course of its conclusions, on page 206 of the tran- 
script, the Court announces the following doctrine : 

"Beyond question, under our laws, a party may be pro- 
jected in the use of all the water he actually appropriates 
"and uses, even if it be every drop that flows in as great 
"a river as the Snake." 

And again : 

"The complainant has erected a dam across that river 
"by which it creates a water fall of 19 feet where prac- 
tically none before existed, and thereby it has created 
"a power for its plant. This nineteen-foot fall exists only 
"while the dam is filled to the top, and, of course, any de- 
crease in the height of the water lessens the power and 
"efficiency of the plant accordingly. The complainant is 
"entitled to such protection of this dam that the water in it 
"shall not be lowered below the ninteen feet by the erection 
"of any other works by other parties." 

On page 208, the Court says : 

"If it were shown that complainant's dam or works 
"were in danger of injury or that the amount of water 
"which it has actually appropriated and is using were in 
"danger of diminution by any acts being done, attempted 
"or threatened by defendants, it can not be doubted that 
"the injunction would be justified." 

Taking the law as quoted by the Court from Kerr on 
Injunctions, and we think the appellant has brought itself 
clearly within its provisions. This section reads: 

"Section 198. The mere prospect or apprehension of 
"injury, or the mere belief that the act complained of may 
"or will be done, is not sufficient ; but if an intention to do 
"the act complained of can be shown to exist, or if a man 
"insists on his right to do, or begins to do, or threatens to 



37 

"do, or gives notice of his intention to do an act which 
"must, in the opinion of the Court, if completed, give a 
"ground of action, there is a foundation for the exercise 
"of the jurisdiction. The mere denial by a man of his in- 
"tention to do an act or to infringe a right will not prevent 
"the court from interfering ; but if a man asserts positive- 
ly that it is not his intention to do a certain act or in- 
fringe a certain right, and there is no evidence to show 
"any intention on his part to do the act or infringe the 
"right j the Court will not interfere." 

The complaint (Trans, p. 11) charges that the defend- 
ants threaten and propose to commence the construction 
of said ditches or canals as indicated on said maps or plans 
(of defendants), Exhibits A and B, pp. 19-33 of Transcript, 
and of the dimensions specified in said permits, for the 
purpose of diverting the two thousand cubic feet of water 
around each end of complainant's dam, and further charges 
that the defendants threaten and intend to divert said wa- 
ter against the will of complainant and in violation of 
its rights, and that the permits were obtained from the 
State Engineer for such purpose. The answer of defend- 
ants ( Trans, p. 68 ) does not deny the intent or purpose to 
construct the canals, as indicated by its maps or plans, 
but says (pp. 73-74) that the defendants in securing the 
permits referred to and — 

"Which are relied upon by these defendants for their 
"rights and privileges in the premises, acted in good faith 
"and with the sole object and purpose of acquiring the right 
"to use the unappropriated water of Snake River at said 
"point to that extent of 4,000 cubic feet, and of maturing 
"plans for power plant and financing said proposition so 
"as to conduct said power to Boise City, and other places 



38 

"for sale for mechanical, lighting and other purposes. 
"These defendants aver that so far these defendants have 
"proceeded no farther than to comply with the laws of 
"the State of Idaho with reference to securing said per- 
"mits from the State Engineer, which permits have been 
"duly and regularly granted; that said defendants do not 
"purpose or intend to go upon said ground of the com- 
plainant or attempt to construct said canals or in any 
"manner interfere with said premises until they have filed 
"their suit in condemnation for a right of way for its ca- 
"nal, and the right to use said property, which will not be 
"done for some four or five months as defendants are now 
"engaged in matters connected with said business solely 
"aside from the work upon the ground, such as financing 
"said proposition, which matters are now well advanced; 
"that in all matters relative to defendants' rights they in- 
"tend to proceed by legal methods and in an orderly way, 
"and will not, in any event, attempt work upon said ground 
"or attempt to divert said water, or to initiate the con- 
struction of said canals until permitted so to do by a 
"Court having jurisdiction of matters relative to proceed- 
ings in condemnation, and will proceed alone in accord- 
ance with the laws and statutes of the State (Idaho) rel- 
ative to acquiring rights by condemnation ; defendants al- 
"lege that they do not intend to trespass upon said prem- 
ises, or in any way interfere with the complainant's free 
"and uninterrupted use of said water until their rights 
"have been determined." 

The natural inference is that the determination of rights 
to which defendants refer is the right of way for the con- 
struction of their canals, inasmuch as the proceedings in 



39 

court referred to are proceedings to condemn land for that 
purpose. 

It appears, therefore, from the answer of defendants: 

First. They intend to do the acts complained of. 

Second. That they insist upon their right so to do. 

Third. That they have given notice by their application 
for and in obtaining permits to divert water at the place, 
by the means and in the manner indicated in their appli- 
cation for permits, to do the very act which must, if com- 
pleted, give a ground of action to the plaintiff. 

It would seem therefore that plaintiff has brought itself 
clearly within the rule quoted and adopted by the Court 
and that there is evidence to show an intention on the part 
of defendants "to do the acts and to infringe upon the 
rights" of appellant. 

Kerr, Sec. 198, supra. 

The Supreme Court of Idaho has held that it is the usual 
and approved practice in that State, in all water cases where 
a decree is entered establishing the rights and priorities of 
parties litigant to incorporate orders in the nature of cross- 
injunctions restraining each and every party thereto from 
in anywise interfering with the use of water by the other 
party thereto, as fixed and established by the decree. 
Moe vs. Harger, 10 Idaho, 306 ; 77 Pac. 302. 

The Honorable Judge of the Circuit Court seems to have 
overlooked these solemn declarations and admissions of 
defendants, made in their answer, as to their objects and 
purposes and to have put his denial of the injunction 
mainly upon the ground that defendants had denied their 
intention to infringe upon the rights of plaintiff (appel- 



40 

lant). It is not a fact, however, that defendants deny an 
intention to do the acts complained of ; such denial is quali- 
fied by the statement that they do not purpose to divert the 
water or to begin the construction of the canals until they 
shall have obtained a right of way therefor by proceedings 
in condemnation. This does not constitute a denial of 
intention, and even if it did, it would not prevent the Court 
from interfering to protect the plaintiff's rights by injunc- 
tion. 

Kerr on Injunction, Section 198, supra. 

There is a further ground upon which the trial court, 
seemingly, based its denial of a permanent injunction in 
this case, and that is, that inasmuch as the defendants 
denied an intention to construct the canals or divert the 
water until after proceedings in condemnation should 
have been instituted and decided, a full opportunity would 
be afforded appellant in such proceedings to assert and 
defend its rights and to secure complete protection and 
relief; therefore the necessity for injunction did not ex- 
ist. 

We can not but believe that this last consideration was 
the real one moving the Court to deny the injunction, and 
therefore the proposition justifies serious investigation and 
consideration to ascertain whether it is sustained by the 
law. 

The rule seems to be well established that — 

"Equity jurisdiction may be invoked, although there is 
"also a remedy at law, unless the remedy at law, both in 
"respect to the final relief and the mode of obtaining it is 
"as efficient as the remedy which equity could confer un- 
"der the same circumstances." 



41 

Kilbourne vs. Sunderland, 130 U. S. 505. 
Boyce vs. Grundy, 3 Pet. 210. 
Southern Pac. R. Co. vs. United States, 132 Fed. 
651, decided by this Court. 



In proceedings by defendants to condemn right of way 
for its ditches, a prima facie showing of its right to divert 
water (for power purposes) would be sufficient to main- 
tain the proceedings to condemn (for a public use) and the 
question of the right to divert the water at a particular 
place, e. g., above plaintiff's dam, could not be put in issue. 
In order that plaintiff (here) should be in a position to 
successfully defeat the condemnation of lands for a right 
of way for the ditches it must be in a position to show 
that the taking of the land for the purpose of constructing 
such ditches would be the taking of property already de- 
voted to a public use. 

To do this would involve one of the principal, if not the 
principal, issue in the case at bar, to wit, the right of de- 
fendants under any circumstances, (first) to divert the 
surplus waters of Snake River at a point on the shores 
of, and from the pond formed by plaintiff's dam, and (sec- 
ond) the right to so divert said waters at the point or place 
indicated, by reason of the liability of injury to and the 
destruction of plaintiff's dam and power plant. 

However, under the statutes of the State of Idaho, relat- 
ing to eminent domain the inquiry is narrowed very ma 
terially, and, practically, only such issues as the statute 
recognized can be litigated or determined in a proceeding 
to condemn. 



42 

The following provisions of the Idaho statutes are per- 
tinent in this discussion: 

Idaho Codes (1901), Sees. 3844 and 3850; K. S. of 
1887, Sees. 5213 and 5219. 

"Section 3844. Facts Necessary to be Found Before 
"Condemnation: Before property can be taken, it must 
"appear : 

"1. That the use to which it is to be applied is a use 
"authorized by law; 

"2. That the taking is necessary to such use ; 

"3. If already appropriated to some public use, that 
"the public use to which it is to be applied is a more nec- 
"essary public use. 

"Section 3850. Power of Court, May Determine What : 
"The Court shall have power: 

"1. To regulate and determine the place and manner 
"of making connections and crossings, or of enjoying the 
"common use mentioned in the fifth subdivision of Section 
"3843; 

"2. To hear and determine all adverse or conflicting 
"claims to the property sought to be condemned, and to the 
"damages therefor; 

"3. To determine the respective rights of different par- 
"ties seeking condemnation of the same property." 

These two sections define the authority of the Court 
and the scope of the inquiry under the Idaho statute. 

A further inquiry of a much more limited character is 
prescribed by Section 3851 (Idaho Codes, supra), Bev. 
Stat. 5220, where it is provided : 

"Section 3851. Court or Jury to Assess Damages: The 
"Court, jury or referee must hear such legal testimony as 



43 

"may be offered by any of the parties to the proceedings, 
"and thereupon must ascertain and assess: 

"1. The value of the property sought to be condemned, 
"and all improvements thereon pertaining to the reality, 
"and of each and every separate estate or interest therein ; 
"if it consists of different parcels, the value of each par- 
"cel and each estate or interest therein shall be separate- 
ly assessed; 

"2. If the property sought to be condemned constitutes 
"only a part of a larger parcel, the damages which will ac- 
"crue to the portion not sought to be condemned, by reason 
"of its severance from the portion sought to be condemned, 
"and the construction of the improvement in the manner 
"proposed by the plaintiff ; 

"3. Separately, how much the portion not sought to be 
"condemned, and each estate or interest therein, will be 
"specially and directly benefited, if at all, by the construc- 
tion of the improvement proposed by the plaintiff; and 
"if the benefit shall be equal to the damages assessed, un- 
"der subdivision 2, the owner of the parcel shall be allowed 
"no compensation except the value of the portion taken; 
"but if the benefit shall be less than the damages so as- 
sessed, the former shall be deducted from the latter, and 
"the remainder shall be the only damages allowed in ad- 
dition to the value ; 

"4. If the property sought to be condemned be for a 
"railroad, the cost of good and sufficient fences along 
"the line of such railroad and the cost of cattle guards 
"where fences may cross the line of such railroad ; 

"5. As far as practicable, compensation must be as- 
sessed for each source of damages separately." 

There is nothing in the Idaho statutes conferring au- 



44 

thority on court or jury, in a condemnation proceeding, to 
determine the questions as to the priority or extent of the 
appropriations, respectively, of water at Swan Falls on 
Snake River by the parties to this suit ; nor to determine 
the point at which defendants here shall divert the surplus 
waters (if any there be) of Snake River, whether above 
or below the dam constructed by plaintiff ; nor the means 
by which, nor the manner in which, such surplus water 
shall be diverted, nor whether the means proposed by de- 
fendants would be inimical to the interests of plaintiff or 
endanger its dam and power plant. 

It may safely be conceded as a general proposition of 
law on the subject of eminent domain, that where the pro- 
posed means and manner of applying to a public use the 
lands sought to be condemned is such as to constitute such 
application to a public use a "taking" of the property, the 
proposed condemnation may be successfully resisted where 
the property is already, as in the case at bar, devoted to a 
public use, but where (as in this case) the avowed pur- 
pose is not to condemn plaintiff's dam and power plant but 
simply a right of way for ditches in close proximity there- 
to, it is seriously contended that the Court or jury in a 
condemnation proceeding brought under the statutes of 
Idaho above quoted, would not have jurisdiction to extend 
the inquiry to the extent of ascertaining and determining 
the question of probable injury to or destruction of plain- 
tiff's power plant. It is clear that the inquiry could not 
be extended so as to include damages for interference with 
the convenient and economical operation of plaintiff's 
plant. 

A further reason why the rights of the plaintiff here 
would not be adequately protected in condemnation pro- 



45 

ceedings is stated in the eleventh assignment of error 
(Trans. 216), as follows: 

"In condemnation proceedings brought by defendants 
"under the statutes of Idaho, this plaintiff would have no 
"remedy against the occupation of its property by defend- 
ants and the commencement by them of their proposed 
"works, pending the trials thereof or pending appeal. " 

Section 3857 of the Code of Civil Procedure of Idaho 
(1901), Section 5226 of the Revised Statutes of 1887, re- 
lating to "Putting Plaintiff in Possession," pending an ap- 
peal from the District to the Supreme Court also contains 
the following proviso: 

"Provided, further, That at any time after the com- 
mencement of proceedings in the District Court, as pro- 
vided for in this Chapter, to condemn property and upon 
"ten days' notice to the adverse party, the District Court 
"or the Judge thereof may appoint three disinterested 
"persons, who shall be residents of the county in which 
"the land is situated as commissioners to assess and de- 
termine the damages that the defendant will sustain by 
"reason of the condemnation and appropriation of the 
"property described in the complaint, and the said com- 
missioners shall, before entering upon the discharge of 
"their duties, take and subscribe an oath to faithfully and 
"impartially discharge their duties as such commissioners. 
"Such commissioners shall give in writing at least five 
"days' notice of the time and place where they will meet 
"for the purpose aforesaid, which place, unless agreed 
"upon between the two parties, shall be within five miles 
"of the premises aforesaid; at the time and place men- 
tioned in such notice they may administer oaths to wit- 
nesses, and hear the evidence offered by the parties, and 



46 

"after viewing the premises shall report in writing their 
"proceedings and the damages which they find the defend- 
ant will sustain by reason of the condemnation and ap- 
propriation of said property, which report shall be signed 
"by said commissioners, or a majority thereof, and be filed 
"in the office of the clerk of the District Court in which 
"such action shall be pending; and at any time after pay- 
"ment to the defendant of the amount so assessed and 
"found by said commissioners as damages, or in case the 
"defendant shall refuse to receive the same, then at any 
"time after such amount shall be deposited with the clerk 
"of said Court to abide the result of said action, the plain- 
tiff may enter upon and take possession of and use the 
"property mentioned in the complaint, until the final con- 
clusion of the litigation concerning the same." 

This question was considered by the Supreme Courts 
of Georgia and Iowa, where similar statutes are in force. 

The case of Chestettee Pyrites Co. vs. Cavenders Creek 
Gold M. Co. 119 Ga. 354 ; 46 So. E. 422, was instituted by a 
bill in equity setting up that plaintiff owned certain water 
rights and water power plant, and dam, which it used for 
the purpose of developing and working a pyrites mine. 
That all of the waters of the river were essential to the 
proper operation of its mine, and that defendant, a cor- 
poration organized under the laws of North Carolina, had 
bought lands above the property of the plaintiff for the 
purpose of operating a gold mine, and had given notice 
that it would proceed under certain sections of the State 
statute to condemn the water in the four tributary streams 
which supplied the river and divert it from the river by 
means of ditches and canals to its mine, returning it to 
the river below the land of plaintiff, and had fixed a date 



47 

for arbitrators to meet to pass upon the necessity for the 
taking and the amount of damages to the plaintiff. The 
bill also charged that defendant was a foreign corporation 
which was not authorized by the Code of Georgia to con- 
demn property, and that the alleged taking was for a pri- 
vate use and not for a use by the public, and prayed for 
an injunction. 

One of the contentions made on behalf of the defendants 
was that plaintiff had a complete remedy at law. On the 
question of adequate remedy at law the Court said : 

"It was argued that the plaintiff had a complete remedy 
"at law. After much reflection, we have concluded that 
"the remedy at law was not as complete as the remedy in 
"equity. The remedy at law pointed out by counsel for 
"the defendant in error was for the plaintiff to go before 
"the arbitrators, and there make the questions raised by 
"his petition in this case, and, in the event of an adverse 
"decision, to renew the points on an appeal to the Superior 
"Court. In the first place, we think that the arbitrators 
"could not entertain a motion to dismiss the condemnation 
"proceedings on the ground that the gold mining company 
"had no authority to institute them. Under the Code the 
"arbitrators' only duties are to pass upon the necessity for 
"the condemnation and the amount of damage to the own- 
"er of the property condemned. Even if they could have de- 
cided as to the authority of the gold mining company to 
"institute the proceedings, and had decided in favor of 
"such authority, and there had been an appeal in the Su- 
"perior Court, the gold mining company could have ten 
"dered the amount of damages fixed, and could then have 
"proceeded to dig its ditches and divert the water regard 
"less of the appeal. Equity, on the other hand, immediate- 



48 

"ly stops the illegal proceedings, and prevents any illegal 
"act. We think, therefore, that the remedy at law was not 
"as complete as the one in equity. For the reasons given, 
"we think that the Court should have granted the injunc 
"tion, and that it was error to refuse it." 
See also — 

City Council of Augusta vs. Georgia R. Co. 98 Ga. 
161; 26 So. E. 499. 

The case of Chi. B. & O. E. Co. vs. Ft. M. & D. M. Ry. 
Co. 91 Iowa, 16 ; 58 N. W. 918, was an action in equity for 
an injunction to restrain the defendant from making cer- 
tain grade crossings of plaintiff's tracks. The defendant 
alleged that a court of equity has no jurisdiction of the 
subject matter of the action for the reason that the issues 
are triable at law, in condemnation proceedings to secure 
the right of way for the crossings. The Court on that ques 
tion said : 

"The defendant contends that it had the absolute right 
"to elect to make such crossings of the plaintiff's railway 
"as should seem to it proper, and to have the damages 
"which would be caused by them to be ascertained in the 
"manner pointed out by statute, and that all objections 
"which can be properly urged to its obtaining the right to 
"construct such crossings can be presented and determined 
"in the condemnation proceedings. That some questions 
"other than those in regard to the amount of damages to 
"which the land owners will be entitled can be determined 
"in such proceedings is true. (Railway Co. vs. Donnell, 
"77 Iowa, 223, 42 N. W. 176.) And it may be said to be 
"the general rule that where all rights can be adjudicated, 
"and full relief can be obtained, in the condemnation pro- 



49 

"eeedings, a court of equity will not interfere to stay such 
"proceedings. But that grade crossings should not be al- 
lowed could not have been determined by the sheriff's 
"jury. They were authorized only to assess the 
"damages which would result in taking the right 
"of way, and making the crossings as proposed 
"by defendant. (Code, Sees. 1244, 1245.) The com- 
"pany desiring the right of way may pay the damages 
"so assessed, and take possession of the property con- 
demned, before further proceedings on appeal can be had. 
"(Code, Sees. 1244, 1254, 1255.) It is evident that the 
"means afforded by the statute in proceedings at law would 
"not have enabled the plaintiff to protect its property 
"against at least a temporary occupation by the defendant ; 
"and, if the crossings defendant sought to construct were 
"of a kind which should not have been permitted, a court 
"of equity had jurisdiction to grant appropriate relief." 

In condemnation proceedings brought by appellees for 
rights of way for their proposed canals they could have 
commissioners appointed to assess the damages, in accord- 
ance with the above statute, and it seems clear that the 
questions in this suit relating to the extent of appellant's 
right to the waters of Snake River, its diligence in apply- 
ing the same to a beneficial use, the right of appellees to 
divert the water in appellant's pond above its dam, their 
right to reduce the head of water, and other questions in 
issue here, could not be passed upon in such proceedings, 
either by the commissioners or by the Court. 

Not only would appellant's remedy, therefore, be wholly 
inadequate, but even if it were, we contend that appellant 
should not be required to wait for a settlement of its rights 
until appellees choose to institute condemnation proceed- 



50 

ings, with these permits, meanwhile, outstanding and on 
record constituting clouds on the title of appellant's water 
rights and property. 

It is also obvious, from a business standpoint, that ap- 
pellant can not continue to carry out its plans for the ap- 
plication of any more of the water appropriated to a bene- 
ficial use, while its rights remain in a state of uncertainty. 

These constitute some of (and not the least important) 
questions before the Court for adjudication at this time, 
and the Court having taken jurisdiction of the subject 
matter should exercise jurisdiction to settle all matters in 
controversy between the parties. 

Hanley vs. Beatty, 117 Fed. 59, 67. 

8. The Court should have decreed that plaintiff recover 
its costs from defendants. 

If appellant's contention is correct that the Court below 
should have granted the relief prayed for in the bill of 
complaint, it follows that the Court should have awarded 
to the plaintiff its costs in the Court below. 
Respectfully submitted, 

NORMAN M. RUICK and 
RICHARD H. JOHNSON, 

Solicitors for Appelkmt. 



1305 



IN THE 



WED STATCS (1UIT COURT Of APPEALS 

FOR THE NINTH CIRCUIT. 



THE TKADE DOLLAR CONSOLIDATED 
MINING COMPANY (a Corporation), 

Appellant , 
vs. 
ALFEED A. FRASER and A. R, CRUSEN, 

Appellees. 



BRIEF OP APPELLEES. 



Upon Appeal from the United States Circuit Court for the 
District of Idaho, Central Division. 



ALFRED A. FRASER, 

Solicitor for Appellees. 
JOHNSON & JOHNSON, 
JOHN F. NUGENT, 

Solicitors for Appellant. 



Filed 1906. 



Clerk. 



Statesman Printing Co., Boise, Idaho. 



IN THE 



1TED STATES CIRCUIT COURT Of APPEALS 

FOR THE NINTH CIRCUIT. 



THE TKADE DOLLAR CONSOLIDATED 
MINING COMPANY I a Corporation), 

Appellant, 
vs. 
ALFRED A. FRASER and A. R. CRUSEN. 

Appellees. 



BRIEF Of APPELLEES. 



Upon Appeal from the United States Circuit Court for the 
District of Idaho, Central Division. 



Statement of the Case. 
This is an action commenced by the Trade Dollar Con- 
solidated Mining, a corporation, against Alfred A. 
Fraser and A. R. Crusen for the purpose of ob- 
taining a judgment or decree of the court quieting the 
title of the complainant to 10,000 cubic feet of the waters 
of Snake River, Idaho, and enjoining the defendants from 
interfering with or appropriating any part of said waters. 
The facts of the case, as shown by the record, are, that the 
complainant company became the successor in interest of 
one Joseph Hutchinson, who appropriated 10,000 cubic 
feet of the waters of Snake River aforesaid; that there- 
after it constructed a dam across said Snake River and 
erected a power house for the purpose of generating elec- 



trical power for mining and milling purposes; that they 
have used, and are using, of said waters of Snake River 
about 2,000 cubic feet thereof; the balance of said waters 
of Snake River is flowing over the dam constructed by said 
complainants and on down said river, and that said com- 
plainants have only placed to a beneficial use the amount 
of about 2,000 cubic feet of the waters of said river by them 
appropriated as aforesaid; that these defendants, in ac- 
cordance with the provisions of law in such case made and 
provided, duly appropriated 4,000 cubic feet of the waters 
of said Snake River at a point a short distance above the 
dam of the complainants, and that they have received a 
permit from the State Engineer of the State of Idaho au- 
thorizing and approving of their said appropriation ; that 
these defendants do not claim any right, title or interest 
in or to any of the waters of said Snake River which have 
been used by said complainant company, nor do they in- 
tend to interfere in any manner with the right of the com- 
plainant to the full and complete enjoyment of the use of 
said water so placed by it to a beneficial use; that the de- 
fendants have not interfered in any way, nor trespassed 
upon any of the property or rights of said complainants, 
and the only act or acts done by these defendants was the 
procuring of a permit, approved by the State Engineer of 
the State of Idaho, authorizing said defendants to appro- 
priate the surplus water of said Snake River. 

Argument. 

The defendants contend that there are only two ques- 
tions involved in this case. 

First. Is the prior appropriator of water entitled to 
an injunction to restrain the subsequent appropriation of 



the water of a stream, which the prior appropriator is not 
using or has not placed to any beneficial use? 

Second. Is the prior appropriator of water entitled to 
have a decree of the Court quieting his title to the full ex- 
tent of his appropriation against a subsequent appropri- 
ator prior to the time he uses or has placed to a beneficial 
use the waters to the full extent of his appropriation? 

We contend that these two propositions, under the de- 
cisions of the courts, must be answered in the negative, 
and if so answered, the judgment of the Circuit Court must 
be affirmed. 

Upon the proposition that the complainant is not en- 
titled to an injunction in this case, we call the Court's at- 
tention to the following authorities. 

In the case of Edgar vs. Stevenson, 70 Cal. 286, the Su- 
preme Court of California, on page 290, say : 

"It thus appears that the defendant has only diverted the 
surplus which was not used and not appropriated by plain- 
tiffs. That the plaintiffs are not entitled to an injunction 
restraining defendant from using such surplus is sustained 
by the ruling in the following cases : 

"Brown vs. Smith, 10 Cal. 510. 

"Ortman vs. Dixon, 13 Cal. 39. 

"McKinley vs. Smith, 21 Cal. 374. 

"N. C. & S. C. Co. vs. Kidd, 37 Cal. 313 ; and 

"Smith vs. O'Hara, 43 Cal. 375, 376." 

• The following observations, taken from the opinion of 
the Court, speaking by Sawyer, C. J., in the case above 
cited (N. C.-& S. C. Co. vs. Kidd, supra.), are applicable 
here: 

"That the mere diversion or use of water by another is 



no injury to a party claiming till he is in a position to use 
it himself, and even after he has acquired a right, during 
any cessation of his ability, to use it, is settled by many 
cases. Nor is such diversion or use, or the diversion or 
use of any surplus beyond the amount which the claimant 
has ability to use, actionable. Thus in Brown vs. Smith, 
10 CaL 510, an action for the diversion of water from 
Brown's ditch, which had the prior right, it was held that 
if 'Brown's old ditch, so called, was so filled with tailings 
during the winter season of 1857 that it was incapable of 
diverting any of the waters of Babbit Creek, then plain- 
tiff can not recover for loss of water from that ditch.' And 
again, in Ortman vs. Dixon, 13 Cal. 39 : 'He was entitled 
to all whenever all was necessary for the mill, but when- 
ever the mill did not need or could not use it for its opera- 
tions, the defendant could use it for his purposes.' Mc- 
Kinney vs. Smith, 21 Cal 381, recognized the same prin- 
ciple." 

In the case of Lorenz vs. Waldron, 96 Cal. 243, the Court 
say: 

"That the injunction granted unnecessarily restricts the 
defendant in the use of his own property, by enjoining him 
from digging any tunnel in any manner under and beneath 
plaintiffs' ditch, is unquestionable. If defendant can con- 
struct his lower tunnel, or any other tunnel, beneath plain- 
tiffs' ditch, he should be permitted to do so, for the evidence 
does not tend to prove that even the lower tunnel may not 
be so constructed; much less, that no tunnel at any other 
place beneath the ditch may not be constructed without 
possible injury to the ditch. 

"McMenomy vs. Baud, 87 Cal. 139; 26 Pac. Rep. 
795. 



"Furthermore, I think the testimony on the part of the 
plaintiffs, considered in connection with the undisputed 
facts and circumstances, had no substantial tendency to 
prove a reasonable probability that a continuation of de- 
fendant's lower tunnel, in the manner and direction in 
which it had been constructed to the extent of 29 feet, 
would injure plaintiff's ditch ; or more than a remote pos- 
sibility of such injury, and therefore there is no substan- 
tial conflict of evidence on this issue. Even the possibility 
of such injury is negatived by a considerable preponder- 
ance of the whole evidence. But a mere possibility, or any- 
thing short of a reasonable probability, of injury, is in- 
sufficient to warrant an injunction against any proposed 
use of property by its owner. 'Injury, material and actual, 
not fanciful or theoretical, or merely possible, must be 
shown as the necessary or probable result of the actions 
sought to be restrained.' " 

Genet vs. Canal Co. 122 N. Y. 529 ; 25 N. E. Rep. 
522. 

In Lutheran Church vs. Maschop, 10 N. J. Eq. 57, the 
Court said : 

"The Court can not grant an injunction to allay the 
fears and apprehensions of individuals; they must show 
the Court that the acts against which they ask protection 
are not only threatened, but will in probability, be com- 
mitted, to their injury." 

In Sherman vs. Clark, 4 Nev. 142, the Court said : 

"It must also appear that there is at least a reasonable 
probability that a real injury will occur if the injunction 
be not granted." 

In High. Inj Sec. 790, it is said : 



6 

"Nor will an injunction be continued against the erec- 
tion of a structure where the facts do not satisfactorily 
show a probability of irreparable injury to the complain- 
ants." 

See also — 

Dorsey vs. Allen, 85 N. C. 358. 

Hall vs. Road, 40 Mich, 49. 

McMenomy vs. Baud, 87 Cal. 139 ; 26 Pac. Rep. 795, 

and cases there cited. 
Hoke vs. Perdue, 62 Cal. 545. 

The same principles are announced in the cases of — 
Santa Paula Waterworks vs. Peralta, 113 Cal. 38. 
Smith vs. O'Hara, 43 Cal. 371. 

"Until the claimant is in a position to use the water of 
a stream subject to appropriation, the right to the water or 
water right does not exist in such a sense that an action 
will lie to recover the water or quiet the title thereto." 
Miles vs. Butte Electric Power Co. 79 Pac. 554. 

In the case of Nevada County, etc. Canal Co. vs. Kidd, 
37 Cal. 282, on page 307, the Court say : 

"Of course, till the plaintiff can use the water itself, it 
can be no injury for others to use it. The Court will not 
restrain the mere diversion of the water by others till the 
plaintiff can make some possible use of it. It does not ap- 
pear that there is any injury for which a recovery at law 
would not be a full, speedy, and adequate remedy. Lack 
vs. Day, 27 Cal. 656, and Tevis vs. Ellis, 25 Cal. 516, are in 
point and are conclusive." 

The complainant is not entitled to a decree quieting its 



title to the appropriation of 10,000 cubic feet The Court 
in this case did quiet the title of the complainant to the 
amount of water which it had diverted and placed to a 
beneficial use. The decree, therefore, is as favorable to 
the complainant as it was entitled to. 

Under the laws of Idaho, a party is never entitled to a 
decree quieting his title to any of the public waters of the 
State. He may be entitled to a decree of a court quieting 
his title to the use of certain of the public waters of the 
State. The statutes of Idaho are conclusive on this point. 

Section 2580, Civil Code of Idaho, 1901, provides : "The 
right to the use of waters of rivers, streams, lakes, springs 
and of subterranean waters may be acquired by appropria- 
tion." 

Section 2581 of the same Code provides: "The appro- 
priation must be for some useful or beneficial purpose, and 
when the appropriator or his successor in interest ceases 
to use it for such purpose, the right ceases." 

In other words, by means of a valid appropriation of 
the public waters of this State, a person may become en- 
titled to the use of said waters, but he gets no title to the 
water itself. 

The Supreme Court of Idaho, in the case of Boise Irri- 
gation and Land Company vs. Stewart, 77 Pac. 25, in dis- 
cussing this question of ownership of water, in the opinion 
of the Court, say: 

"A right may be acquired to its use which will be re- 
garded and protected as property, but the right carries 
with it no specific property in the water itself." 

The ninth section of the first act of Congress in regard 
to the appropriation of water, passed on the 26th day of 
July, 1866, declares that: "Whenever by priority of pos- 



8 

session, rights to the use of water for mining, agricultural, 
manufacturing or other purposes have vested and accrued 
and the same are recognized and acknowledged by the local 
custom, laws and decisions of the courts, the possessors 
and owners of such vested rights shall be maintained and 
protected in the same." 

14 Stat, 253, c. 262 (U. S. Comp. St. 1901, p. 1467). 

It will be observed from that act that the right to the 
use of water is granted. The legislation of this and other 
States upon that subject has been to the same effect, and 
has not given to the appropriator the ownership of the 
corpus of water itself, but only a right to the use of the 
water. As touching upon this proposition, see also — 
Atchison vs. Peterson (U. S.) 22 L. Ed. 414. 
Broder vs. The Natoma Water & Mining Co. 101 U. 

S. 274. 25 L. Ed. 790. 
Sturr vs. Beck, 133 XL S. 541, 10 Sup. Ct. 350, 33 L. 
Ed. 761. 

In the case of Rincon Water & Power Co. vs. Anaheim 
Union Water Co. et al. 115 Fed. 543, the Court say : 

"It is obvious that a person who intends to become an 
appropriator under these sections can not acquire the ex- 
clusive right to the use of the water he intends appropriat- 
ing, nor maintain any suit, either at law or in equity, for 
its diversion, until all the steps requisite to an appropria- 
tion have been taken." 

A well known text writer has said : 

"The appropriation becomes perfect only when the 
ditches or canals are completed, the water diverted from 
its natural stream or channel, and actually used for bene- 



9 

ficial purposes. * * * While the appropriators dam and 
canal are in the process of construction, but he is not yet 
ready to actually use the water for the purpose intended, 
its use by other persons causes no injury to the first ap- 
propriator, and gives him no cause of action for relief, 
either equitable or legal, from the fact that his works are 
not in a condition to divert the water. But the prior ap- 
propriator has the right to use so much of the water as is 
necessary to preserve his flume or works from injury while 
in the process of construction." 
Kin. Irr. Sec. 167. 

Another text writer speaks to the same effect, as fol- 
lows : 

"The appropriation does not become perfect and final 
until the works are completed, so that the actual use of 
the water has begun, or at least, so that its actual use can 
be commenced. Although, as will be shown hereafter, if 
the works are constructed with due diligence, the appro- 
priation relates in the interval between their commence- 
ment and their completion, the appropriator acquires no 
vested, exclusive right to the water of the stream, and can 
maintain no action against other persons for their use or 
diversion of the water. Such right of action only arises 
when the works and the appropriation are completed, al- 
though, on the question of priority between the appropria- 
tor and other claimants, his appropriation then relates 
back to the time of his giving notice." 

Black, Pom. Water Eights, Sec. 54. 

From the statutory enactments and general principles 
above quoted and stated, the conclusion is not only fair, 



10 

but unavoidable, that the only right which a person ac- 
quires by posting notice is the right to prosecute without 
interference the works necessary to consummate his in- 
tended appropriation. This doctrine is elsewhere stated 
as follows : 

"The notice itself can not constitute an appropriation 
of water, nor confer any right on the persons filing it, 
other than that of proceeding with reasonable diligence 
to complete the proposed appropriation. If they do not 
thus proceed, they have no rights whatsoever in the waters 
of the stream, concerning the appropriations of which they 
have given their notice." 

Ditch Co. vs. Bennett (Or.) 60 Am. St. Rep. 800, 
note (s. c. 45 Pac. 472). 

The proposition that a person who has no title, legal 
or equitable, to the use of water, but has merely posted 
notice of an intended appropriation, and, within the time 
prescribed by law, commenced suitable works for diver- 
sion, can thereupon maintain a suit to determine an ad- 
verse claim to such use, is, in my opinion, wholly untena- 
ble. 

The only case in point which has been called to my at- 
tention is Umatilla Irr. Co. vs. Umatilla Imp. Co., 30 Pac. 
30, decided by the Supreme Court of Oregon; and that 
case fully supports the views which I have above expressed." 

In the case above referred to of Umatilla Irrigation Co. 
vs. Umatilla Imp. Co. 30 Pac. 30, is a case almost identical 
with the one at bar. In the above case the Court say : 

"The plain inference from all of this is that the plaintiff 
claims to have acquired a first right to this water, and 
wishes to put it in a ditch and flume to be used for the 



11 



purposes of irrigation by whoever will buy it; that it lias 
not money enough to do the work without selling bonds, 
but that, as long as the defendants are claiming to take a 
large amount of water from the same supply below the 
plaintiff's point of diversion, no one will buy said bonds. 
In effect, this Court is asked to certify that the plaintiff 
owns the water which it claims, for the purpose of en- 
abling it to make sale of its bonds; at least this seems to 
be the clear logic of the position. All of the rights claimed 
by the plaintiff or either of the defendants are as yet only 
evidenced by notices and maps. Not a drop of water has 
been diverted. If the plaintiff has acquired a legal right 
to take the water from the streams mentioned, there is 
nothing to prevent its doing so, at least so far as this record 
discloses. If, in the development of its project, any per- 
son should wrongfully interfere with water to which it 
might then be able to show itself entitled, no doubt a court 
of equity would, upon a proper showing, restrain such 
interference; but as yet nothing, comparatively, has been 
done by the plaintiff, and the defendants have in no man- 
ner disturbed it in the exercise of any of its rights or fran- 
chises. The plaintiff may never construct a ditch or flume, 
and if it did, and is entitled to the water, it is not to be 
presumed or intended that the defendants would violate 
the plaintiff's rights ; at least, if it is of the opinion that 
the defendants intend to do so, it must wait for some overt 
act that injures it." 

Conceding for the purposes of argument (and for that 
purpose only), that the Court, in considering this case 
has a right to take into consideration or pass upon the 
question as to what rights, if any, it has secured under the 
permit of the State Engineer to divert the waters of Snake 



12 

River in the manner provided in said permit, the defend- 
ants contend that they have a legal right to divert the 
surplus water which was by them appropriated at the point 
mentioned in said permit. This question has been passed 
upon, and the right of the defendants so to do sustained by 
the Supreme Court of California. 

In the case of Natoma Water and Mining Co. vs. John 
Hancock, 101 Cal. 43, the Court, in the syllabi, say: 

"A prior appropriator of ' the water of a stream, who 
constructs a dam across the bed of the stream for the pur- 
pose of raising its surface to a level which will cause it 
to flow into his ditch, does not thereby acquire such an ex- 
clusive right in the bed and banks of the stream, as far as 
the slack water extends above his dam, in the form of a 
pond or pool, that he can enjoin a subsequent appropriator 
of the surplus water from tapping the stream and diverting 
the surplus at a point above the dam and below the head 
of the slack water in such pond or pool, if he does not in- 
terfere with the free use and enjoyment of the water right 
or the property of the prior appropriator. 

"The subsequent appropriator can not be enjoined from 
appropriating the surplus water at a point above plain- 
tiff's dam merely because he thereby has the power to drain 
plaintiff's ditch or canal, if he disclams any such inten- 
tion." 

The plaintiff corporation, not being authorized by its 
charter to take and obtain title to the waters of Snake 
River for the purpose of generating power for sale or rental 
until after the commencement of this suit, a court of equity 
will not entertain suit on behalf of said corporation to 
quiet its title to this property. 



13 

In the case of Thomas vs. Railroad Co. 101 U. S. 71, the 
Court said: 

"Conceding the rule applicable to all statutes, that what 
is fairly implied is as much granted as what is expressed, 
it remains that the charter of a corporation is the meas- 
ure of its powers, and that the enumeration of these pow- 
ers implies the exclusion of all others." 

The court of equity will not quiet the title of the com- 
plainant to the 10,000 cubic feet of the waters of Snake 
River, and thereby decree it to be the owner of property 
which, by its charter, it was not authorized to possess. 

In the case of Case vs. Kelley, 133 U. S. 21, the Court., 
in the syllabi, say : 

"Though the Federal Courts may hesitate to declare 
against a title to lands, held without authority of law, on 
the principle that the matter concerns the State alone, 
they will not aid a corporation to violate a State law, 
and obtain a title which it has no authority to hold." 

The plaintiff corporation not being authorized by its 
charter to engage in the business of generating and selling 
electrical power, or to sell and distribute water for irri- 
gating purposes, could not make a valid appropriation of 
water for any such purpose, for, in order to make a valid 
appropriation of the public waters of this State, there 
must exist at the time of the appropriation a bona fide in- 
tention upon the part of the one attempting to appropriate 
it, to apply the same to a beneficial use or purpose in con- 
templation at the time of the appropriation is made. 
Kinney on Irrigation, Sec. 171. 

In the case of Simmons vs. Winters, 27 Pac. 7, this ques- 
tion has been discussed at length in the opinion of the 



14 

Court, and a number of cases cited sustain this doctrine, 
and the Court, in its opinion say : 

"By the act of congress, the right of water by prior ap- 
propriation from the streams upon the public domain was 
recognized and established. 'But the appropriation,' said 
Mr. Justice Field, 'is limited in every case, in quantity 
and quality, by the uses for which the appropriation is 
made.' (Atchinson vs. Peterson, 20 Wall. 514.) The 
measure of the right of the first appropriation of the wa- 
ter, as to extent, follows the nature of the appropriation, 
or the uses for which it is taken. (Ortman vs. Dixon, 13 
Cal. 38.) The needs or the purpose for which the appro- 
priation is made is the limit to the amount of water which 
may be taken. He can only appropriate so much as he 
needs for the given purpose. But the appropriation must 
be made for some beneficial purpose, presently existing or 
contemplated. Mr. Pomeroy says: 'In order to make a 
valid appropriation of waters upon the public domain, and 
to obtain an exclusive right to the water thereby, the ap- 
propriation must be made with a bona fide present inten- 
tion of applying the water to some immediate useful or 
beneficial purpose, or in present bona fide contemplation 
of a future application of it to such a purpose, by the par- 
ties thus appropriating it.' " 

Pom. Rip. Rights, Sec. 47. 

There must be some actual beneficial purpose existing at 
the time, or contemplated in the future, as the object for 
which the water is utilized. 

And again: "His original appropriation may be made 
with reference to the amount of water that is needed to 
irrigate the lands he designs to put into cultivation. This 



15 

view is ably sustained in Barnes vs. Saborn, 10 Nev. 243, 
by Hawley, C. J., who, after stating that the plaintiff's 
rights to the water are not dependent upon the amount 
beneficially used by him in the first year of his appropria- 
tion, proceeds to say: 'He was only entitled to as much 
water, within his original appropriation, as was necessary 
to irrigate his land, and was bound, under the law, to 
make a reasonable use of it. * * * No person can, by 
virtue of a prior appropriation, claim or hold any more 
water than' is necessary for the purpose of the appropria- 
tion. Reason is the life of the law; and it would be un- 
reasonable and unjust for any person to appropriate all 
the waters of a creek, when it is not necessary to use the 
same for the purpose of his appropriation. * * * What is 
a reasonable use depends upon the particular circum- 
stances of each particular case.' " 

For the reasons herein set forth, the appellees contend 
that the decree of the Circuit Court should be affirmed. 
Respectfully submitted, 

ALFRED A. FRASER, 

Solicitor for Appellees. 






No. 1305. 



IN THE 



HIED STA1B CIRCUIT COURT Of APPEALS 

FOR THE NINTH CIRCUIT. 



THE TKADE DOLLAR CONSOLIDATED" 
MINING COMPANY (a Corporation), 

Appellant, 
vs. 
ALFRED A. FRASER and A. R, CRUSEN, 

Appellees. 



REPLY BRIEF OF APPELLANT. 



Upon Appeal from the United States Circuit Court for the 
District of Idaho. 



JOHNSON <fc JOHNSON, 
NORMAN M. RUICK, 

Solicitors for Appellant. 



Filed 1906. 



Clerk. 



Statesman Printing - Co., Boise, Idaho. 

F! LED 
JUN 151906 



N THE 



Will STATB CIRCUIT COURT OF APPEALS 

FOR THE NINTH CIRCUIT. 



THE TRADE DOLLAR CONSOLIDATED^ 
MINING COMPANY (a Corporation), 

Appellant, 
vs. 
ALFRED A. FRASER and A. R. CRUSEN, 

Appellees. 



REPLY BRIEF FO APPELLANT. 



Upon Appeal from the United States Circuit Court for the 
District of Idaho. 



The only proposition advanced in argument by counsel 
for appellee, not already considered in the brief of appel- 
lant, is the alleged want of authority in the plaintiff cor- 
poration to take and obtain title to the waters of Snake 
River for the purpose of generating power for sale and 
rental. 

Counsel for appellee states this proposition as follows : 

"The plaintiff corporation, not being authorized by its 

"charter to take and obtain title to the waters of Snake 

"River for the purpose of generating power for sale or 

"rental until after the commencement of this suit, a court 



"of equity will not entertain suit on behalf of said corpo- 
ration to quiet its title to this property." (Brief of ap- 
pellee, p. 12.) 

The original articles of incorporation of the plaintiff 
company provide: 

"Fourth. The general nature of the business proposed 
"to be carried on, is the mining of gold and silver-bearing 
"rocks, ores and deposits of every kind and description, 
"and the extraction of gold and silver and other metals 
"therefrom by milling and other processes and the vending 
"in the market of the products so obtained, and the doing 
"of all other business necessarily and advantageously con- 
nected with all of the above." (Transcript, pp. 156-157.) 

It will not be contended that it is beyond the power 
of the mining company to employ the most approved mod- 
ern methods in its mining operations in the interest of 
economy and efficiency. 

The construction of the dam and the creation of electri- 
cal energy to operate the mines and mining machinery was 
the means adopted. The construction of this dam and 
power plant involved an expenditure of something more 
than three hundred thousand dollars. It is possible that 
a less expensive plant would have answered the purpose, 
although not so economically. "The doing of all other bus- 
iness necessarily and advantageously connected with" the 
principal operations of the company is broad enough to 
cover the creation and disposition of electrical power to 
other mines in the vicinity and to the public generally as 
furnishing an income whereby the cost of operating the 
plaintiff's mines may be reduced and the interest on the 
sum invested in the dam and power plant provided for. 

In Jacksonville, etc., Ry. Co. vs. Hooper, 160 U. S. 514, 



the Court holds that a corporation "may enter into and 
"engage in transactions which are incidental or auxiliary 
"to its main business, which may become necessary, expedi- 
ent or profitable in the care and management of the prop- 
erty which it is authorized to hold, under the act by Avhich 
"it is created." 

The plaintiff company has seen fit, moreover, to amend 
its articles of incorporation so as to specifically provide 
as one of the objects and purposes for which said company 
is organized "the development of electrical power * * * 
"for the purpose of sale, rental and disposition to the 
"public and for all useful and beneficial purposes," in con- 
nection with the extraction and milling of ores. (Tran- 
script p. 176.) 

Is it true then that a court of equity will not entertain 
a suit on behalf of the plaintiff corporation to quiet its 
title to the water to which it has acquired title, all of 
which it has diverted and a part of which it has already ap- 
plied to a beneficial use? The notice of location and ap- 
propriation of the water, the title to which is now in plain- 
tiff, provides that the purposes for which said water is 
claimed are "power for motive, manufacturing, mechani- 
"cal, electrical light, electric power and other useful and 
"beneficial purposes and for irrigation by means of pump- 
"ing and otherwise." (Transcript, pp. 144-148.) 

The right thus acquired to the use of the water consti- 
tutes real property under the laws of Idaho, Section 2348, 
Civil Code, 1901, reading as follows : 

"Real property or real estate consists of : 

"1. Lands, possessory rights to land, ditch and water 
"rights, and mining claims, both lode and placer; 

"2. That which is affixed to land ; 



"3. That which is appurtenant to land." 

The title thus acquired by the locator was transferred 
to and is now held and owned by the plaintiff company 
and it is under such title, conveyed to the company in the 
year 1900, that the extensive improvements have been made 
— the dam and power plant constructed, electrical ma- 
chinery installed in the mines of the company and the 
electrical energy developed and supplied to mines in the 
neighborhood and for the lighting of towns. 

Even conceding that the plaintiff acquired only a right 
to the use of the water flowing in Snake River at the point 
designated, such right, then, constitutes real property, of 
which plaintiff is the holder of the legal title. 

Plaintiff therefore being the holder of the legal title is 
entitled to have such title quieted as "against another 
"who claims an interest or estate in real property adverse 
"to him." 

Code of Civil Procedure (Idaho), 1901, Sec. 3379. 

Said entire section reading as follows : 

"Section 3379. Parties to an Action to Quiet Title : An 
"action may be brought by any person against another 
"who claims an estate or interest in real property adverse 
"to him, for the purpose of determining such adverse 
"claim." 

"An action may be maintained to quiet title to water 
"rights acquired by appropriation. The right to main- 
tain the action does not depend upon an actual inter- 
ference with the plaintiff's right. The assertion of an 
"adverse claim is all that is required." 
Long on Irrigation, Sec. 116. 
Kinney on Irrigation, Sec. 336. 



There is no support in the authorities for the contention 
of defendants that a court of equity in this case will not 
entertain suit on behalf of plaintiff corporation to quiet 
its title to the waters of Snake River owing to plaintiff 
not being authorized by its charter to take and obtain title 
thereto for the purpose of generating power for sale or 
rental. 

Conceding for the sake of the argument that plaintiff 
corporation is not specially authorized by its charter to 
take and obtain title to the waters of Snake River for the 
purpose of generating power for sale or rental, yet plaintiff 
has obtained title to such waters and it is not for defend- 
ants to raise the question of ultra vires. If the plaintiff 
has taken title to real property which it was not author- 
ized to take or retain, this is a matter between the corpor- 
ration and the State and can not be taken advantage of by 
a stranger. 

"Where a corporation is incompetent by its charter to 
"take a title to real estate, a conveyance to it is not void, 
"but only voidable, and the sovereign alone can object. It 
"is valid until assailed in a direct proceeding instituted for 
"that purpose." 

National Bank vs. Matthews, 98 U. S. 621, 628. 
Reynolds vs. Crawfordville Bank, 112 U. S. 405, 
413. 

"A stranger to the transaction and to whom the corpora- 
tion owes no duty can not set up the question of want of 
"authority in the corporation." 

Railroad Co. vs. Ellerman, 105 U. S. 166, 173. 

Fritts vs. Palmer, 132 U. S. 291. 

Jones vs. Habersham, 107, IT. S. 188. 



6 

Christian Union vs. Yount, 101 U. S. 361. 
Oregon & C. E. Co. vs. United States, 67 Fed. 658; 
29 U. S. App. 497, by this Conrt. 

Substantially the same question was involved in the 
case of — 

The Cole Silver M. Co. vs. The Virginia & Gold Hill 
Water Co. 1 Saw. 470. 

The plaintiff was a mining corporation, and of the wa- 
ters which it appropriated, it reserved a sufficient portion 
for its mining purposes, and sold the remainder, which 
was conveyed to Virginia City and Gold Hill for domestic 
uses. The aptness of the language of Judge Sawyer on 
this question, is our excuse for quoting at some length : 

"So far as required for mining purposes, a capacity to 
"acquire the right to water necessarily exists as incident to 
"the business of mining. But suppose, in pursuing a min- 
"ing enterprise, other valuable things are found in the path 
"of the work, can not the corporation appropriate and use 
"them to defray its many expenses, or enhance its profits? 
"Must they be passed by and allowed to go to waste for 
"want of a capacity to make them available, when the 
"corporation can, in fact, render them available and use- 
"ful in contributing to the success of the main enterprise? 

"Ma> it not avail itself of all the incidental results of la- 
"bor necessarily expended in pursuit of the real object for 
"which the corporation was created, because some of these 
"results were not made a specific object to be attained?" 

Again, on page 478, the Court said: 

"But it is enough to say, that the defendants, whether 
"corporations, or natural persons, are not in a position 
"to defend a trespass, on the ground that the plaintiff has 



"no legal capacity to acquire the right in question. That 
"the plaintiff may, legitimately, acquire a right to suf- 
"ficient water for its mining purposes is clear. Having the 
"capacity to a limited extent, at least, to acquire a water 
"right, whether they have assumed to acquire a larger 
"right than their wants justify, or whether they use the 
"water discovered and appropriated in the progress of 
"their work for other purposes than mining, is no concern 
"of defendants. A party who has trespassed upon the act- 
"ual possession of the complainant can not defend on that 
"ground. It is, a question hetween the corporation and 
"the government. By express provisions of statute, cor 
"porations are usually limited in their purchases of real 
"estate, for instance, to such as are actually necessary to 
"the exigencies of their business. But suppose a much 
"larger amount should be conveyed to a corporation than 
"it was authorized to take, it would not be contended, I 
"apprehend, that a trespasser who had taken possession 
"of a portion of such excess of land, could successfully set 
"up a want of capacity in the corporation to take as a 
"defense to an action of ejectment by the corporation. As 
"between the party despoiled and the wrongdoer, the 
"courts will not enter upon this inquiry. (Far. & M. Bk. 
"of Mil. vs. D. & M. R. B. Co. IT Wis. 372 ; Austin Glass 
"Co. vs. Dewey, 16 Mass. 91 ; Whit. M. Co. vs. Baker, 3 Nev. 
"386; Xatoma Water & M. Co. vs. Clarkin, 14 Cal. 552.)" 
The appellees, we contend, are in no better position 
than trespassers, as we believe we have clearly shown in 
the original brief that their purpose, in addition to the 
adverse claim of a part of plaintiff's prior water rights, 
was more especially to take advantage of the fall or power 
created by plaintiff's expenditures in constructing the 
dam. 



8 

This question was again passed upon, and the principles 
announced in the case last cited, reaffirmed by the same 
learned Judge in — 

Southern Pac. K. Co. vs. Orton, 32 Fed. 470. 

The Supreme Court of Colorado, in the case of 

Water Supply & Storage Co. vs. Tenney, 51 Pac. 
508-09, 

Held that the right of the plaintiff company, under its 
charter, to receive by purchase the water rights involved, 
could not be questioned by the defendant, but only by the 
State. 

The case relied upon by defendants on this point is 
that of — 

Case vs. Kelley, 133 U. S. 21. 

This was an action by a receiver of a railroad against 
certain individuals, officers of the railroad company, who 
had taken title in their own names to certain lands lying 
along and adjacent to the line of said railroad. It was con- 
tended by the receiver that the title to these lands had been 
obtained upon representations that the same were for the 
use and benefit of the railroad company and Avere under- 
stood by the grantors to be for the benefit of the company. 
It was sought by the action to obtain a decree of court de- 
claring these lands to belong to the railroad company and 
to require the defendants to execute to the company a con- 
veyance. ~j- 

It Avas held by the Court that inasmuch as title had been 
1 >;issed to the railroad company and, inasmuch as it ap- 
peared that the railroad company was prohibited from ob- 
taining or retaining title to lands unnecessary for its use, 
and inasmuch as the lands, title to which was sought, were 



9 

not of a character necessary to its use, nor of a character 
which the railroad company was authorized under the 
statute, to hold title to, a court of equity would not decree 
a conveyance in the face of the statute, or in the language 
of Mr. Justice Miller, who delivered the opinion "will not 
"make itself the active agent in behalf of the company in 
"violating the law and enabling the company to do that 
"which the law forbids." 

In the opinion, however, the case of — 

National Bank vs. Matthews, 98 U. S. 621, supra, 

Is referred to, the Court saying the questions presented 
in that case and in the case of Case vs. Kelley were very 
different ones and intimated that where the title had al- 
ready passed, the Court would hesitate to declare void title 
to such lands, and there is nothing in the opinion in Case 
vs. Kelley which supports the contention of the defend- 
ants in this case or which conflicts with the decision in the 
case of National Bank vs. Matthews. 

The statutes of Idaho quoted and the authorities cited 
above, dispose, as we think, of this contention of the coun- 
sel for appellee and establish the right of appellant to the 
relief sought. 

Bespectfully submitted, 

N. M. KUICK and 
JOHNSON & JOHNSON, 
Solicitors for Appellant. 



No. 1306 



United States Circuit Court of Appeals 



FOR THE NINTH CIRCUIT. 



B. BROOKS LEE, 

Plaintiff in Error, 
vs. 

THE UNITED STATES OF AMERICA, 

Defendant in Error. 



TRANSCRIPT OF RECORD. 



Upon Writ of Error to tKe United States District 
Court for tKe Northern District of California. 



FILED 

APR 18 1907 



Filmer Bros. Co. Print, 1642 Howard St., S. F., Cal. 



No. 1306 



United States Circuit Court of Appeals 



FOR THE NINTH CIRCUIT. 



B. BROOKS LEE, 

Plaintiff in Error, 
vs. 

THE UNITED STATES OF AMERICA, 

Defendant in Error. 



TRANSCRIPT OF RECORD. 



Upon Writ of Error to tKe United States District 
Covirt for tKe NortHern District of California. 



Filmbr Bros. Co. Print, 1642 Howard St., S. F., Cal. 



INDEX. 

Page 

Affidavit of B. Brooks Lee 2 

Affidavit of B. Brooks Lee 4 

Assignment of Errors 28 

Bill of Exceptions 44 

Bond, Supersedeas 40 

Certificate, Clerk's, to Transcript 124 

Citation 7 

Clerk's Certificate to Transcript 124 

Defendant's Exhibit No. 1 (Specimen of the 
Handwriting of B. B. Lee, alias E. Brooke 

Sterling) 130 

Demurrer, Order Overruling, and Entering Plea 

of Not Guilty 19 

Demurrer to Indictment 15 

Demurrer to Indictment 58 

Demurrer to Plea of Misnomer 56 

Exceptions, Bill of 44 

Exhibit No 1, United States (Letter Dated Go- 
shen, Ind., Jan. 2, '05, Addressed to Dr. E. 
Brooke Sterling, 1140 Market St., San Fran- 
cisco, Signed by Jennie Meredith, R. R. 8, 
Goshen, Ind.) 126 



ii Index. 



Page 



Exhibit No. 2, United States (Letter Dated San 
Francisco, Jan. 9th, 1905, Addressed to Jen- 
nie Meredith, R. R. 8, Goshen, Ind., Signed 
by R. Brooke Sterling, M. D., Per L.) 127 

Exhibit No. 3, United States (Clipping from San 
Francisco " Chronicle" of December 15, 
1904) 128 

Exhibit No. 1, Defendant's (Specimen of the 
Handwriting of B. B. Lee, alias R. Brooke 
Sterling) 130 

Impaneling of Jury, Trial and Rendition of Ver- 
dict 20 

Indictment 12 

Indictment, Demurrer to 15 

Indictment, Demurrer to 58 

Indictment, Motion to Quash, Set Aside and Dis- 
miss in the Above-entitled Case 48 

Judgment, Motion in Arrest of 116 

Judgment on Verdict of Guilty 25 

Judgment on Verdict of Guilty 119 

Motion in Arrest of Judgment 116 

Motion for a New Trial 114 

Motion for New Trial and Sentencing Defend- 
ant, Order Denying Motion to Arrest Judg- 
ment and 23 



Index. iii 

Page 

Motion to Arrest Judgment and Motion for New 
Trial and Sentencing Defendant, Order De- 
nying 23 

Motion to Quash, Set Aside and Dismiss the In- 
dictment in the Above-entitled Case 48 

Motion to Strike Plea of Misnomer from Files . . 57 

New Trial, Motion for a 114 

Order Allowing Writ of Error, Fixing Amount 

of Security, and Staying Proceedings. 39 

Order Denying Motion to Arrest Judgment 
and Motion for New Trial and Sentencing 

Defendant 23 

Order of Court Extending Time to File Record 

on Appeal (Dated December 27, 1905) 1 

Order of Court Extending Time to File Record 

on Appeal (Dated January 16, 1906) 3 

Order of Court Extending Time to File Record 

on Appeal (January 26, 1906) 6 

Order Overruling Demurrer and Entering Plea 

of Not Guilty 19 

Petition for Writ of Error and Supersedeas 27 

Plea of Misnomer 54 

Plea of Misnomer, Demurrer to 56 

Plea of Misnomer, Motion to Strike from Files 57 

Praecipe for Transcript and Record 11 

Supersedeas Bond 40 



iv Index. 

Page 

Testimony on Behalf of the Government: 

I. O. Dodge 66 

I. O. Dodge (cross-examination) 71 

I. O. Dodge (redirect examination) 78 

W. F. Scudder 89 

W. F. Scudder (cross-examination) 92 

Pierre J. Whelan 80 

Pierre J. Whelan (cross-examination) .... 83 

Testimony on Behalf of Defendant : 

Dr. B. B. Lee 94 

Dr. B. B. Lee (cross-examination) 108 

Dr. D. F. Eagan 108 

John H. Wise 110 

Trial, Impaneling of Jury and Rendition of 

Verdict 20 

Trial, New, Motion for a 114 

United States Exhibit No. 1 (Letter Dated 
Goshen, Ind., Jan. 2, '05, Addressed to Dr. 
E. Brooke Sterling, 1140 Market St., San 
Francisco, Signed by Jennie Meredith, R. 
R. 8, Goshen, Ind.) 126 

United States Exhibit No. 2 (Letter Dated 

San Francisco, Jan. 9th, 1905, Addressed to 
Jennie Meredith, R. R. 8, Goshen, Ind., 
Signed by R. Brooke Sterling, M. D., Per 
L.) 127 



Index. v 

Page 

United States Exhibit No. 3 (Clipping from 
San Francisco * ' Chronicle ' ' of December 

15, 1904) 128 

Verdict 24 

Verdict, Impaneling of Jury, Trial and Rendi- 
tion of 20 

Verdict of Guilty, Judgment on 119 

Writ of Error (Original) 8 

Writ of Error (Copy) 123 

Writ of Error and Supersedeas, Petition for. . 27 
Writ of Error, Order Allowing, Fixing Amount 

of Security and Staying Proceedings 39 



In the District Court of the United States, in and for 
the Northern District of California. 

UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, Alias, etc., 

Defendant. 

Order of Court Extending Time to File Record on 

Appeal. 

Good cause appearing therefor, on motion of Wm. 
H. H. Hart, attorney for defendant, it is ordered 
that the time for making up the record on the writ of 
error allowed in the above-entitled action and filing 
the same in the United States Circuit Court of Ap- 
peals for the Mnth Circuit, be and the same is hereby 
enlarged and extended from this date until and in- 
cluding the 16th day of January, 1906. 

Dated San Francisco, December 27, 1905, 

WM. W. MORROW, 
U. S. District Judge. 

[Endorsed]: No. 1306. United States Circuit 
Court of Appeals for the Mnth Circuit. Order Ex- 
tending Time to File Record. Filed Dec. 26, 1905. 
F. D. Monckton, Clerk. 



2 B. Brooks Lee vs. 

In the District Court of the United States, in and for 
the Northern District of California. 

UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, Alias, etc., 

Defendant. 

Affidavit of B. Brooks Lee. 

State of California, 

City and County of San Francisco, — ss. 

B. Brooks Lee, being duly sworn, on oath deposes 
and says: That he is the defendant in the above- 
entitled case ; that he applied for a writ of error in 
the above-entitled court, which writ of error was al- 
lowed in the above-entitled action, to the U. S. Cir- 
cuit Court of Appeals for the 9th Circuit ; that this 
defendant's time for filing the record in said U. S. 
Circuit Court of Appeals expires to-day, the 16th day 
of January, 1906; that on account of the illness of 
this defendant and his inability to secure the money 
to pay for certifying the record, he has not been able 
to have the same certified up to and including this 
date, but if given an extension of ten (10) days, he 
expects to be able to secure the certification of said 
record and the filing of the same in the U. S. Circuit 
Court of Appeals. 



The United States of America. 3 

Therefore, the defendant prays that the Court 
grant an extension of ten (10) days within which to 
file said record on appeal. 

B. B. LEE. 

Subscribed and sworn to before me, in my presence, 
this 16th day of January, 1906. 

[Seal] R. B. TREAT, 

Notary Public in and for the City and County of San 
Francisco, State of California. 

[Endorsed] : In the District Court of the United 
States, in and for the Northern District of California. 
United States of America vs. B. Brooks Lee, Alias, 
etc., Defendant. Affidavit of B. Brooks Lee. Filed 
Jan. 16, 1906. F. D. Monckton, Clerk. 



In the District Court of the United States, in and for 
the Northern District of California. 

UNITED STATES OF AMERICA 

vs. 
B. BROOKS LEE, Alias, etc., 

Defendant. 

Order of Court Extending Time to File Record on 

Appeal. 

Good cause appearing therefor, on motion of Wm. 
H. H. Hart, attorney for defendant, it is ordered 
that the time for making up the record on the writ 



4 B. Brooks Lee vs. 

of error allowed in the above-entitled action and fil- 
ing the same in the United States Circuit Court of 
Appeals for the Ninth Circuit, be and the same is 
hereby enlarged and extended from this date until 
and including the 26th day of January, 1906. 
Dated San Francisco, January 16th, 1906. 

JOHN J. DE HAVEN, 
U. S. District Judge. 

[Endorsed] : In the District Court of the United 
States, in and for the Northern District of California. 
United States of America vs. B. Brooks Lee, Alias, 
etc., Defendant. Order of Court Extending Time to 
File Record on Appeal. Filed Jan. 16, 1906. F. D. 
Monckton Clerk. 

In the District Court of the United States, in and for 
the Northern District of California. 

UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, Alias, etc., 

Defendant. 

Affidavit of B. Brooks Lee. 

State of California, 

City and County of San Francisco, — ss. 

B. Brooks Lee, being duly sworn, on oath deposes 
and says: That he is the defendant in the above- 
entitled case; that he applied for a writ of error 



The United States of America. 5 

in the above-entitled court, which was allowed 
in the above-entitled action, to the U. S. Cir- 
cuit Court of Appeals for the 9th Circuit; that this 
defendant's time for filing the record in said U. S. 
Circuit Court of Appeals expires to-dav, the 26th day 
of January, 1906; that this defendant was unable 
to secure the money to pay for certifying the record 
m the above case until yesterday, January 25th 
1906, on which day this affiant offered the money to 
the clerk of this court, or one of his deputies, to cer- 
tify the record, this affiant then believing that it had 
already been made up, and ascertained from said 
clerk or his deputy, that the record was not made 
up, and said clerk refused to receive said monev on 
the ground that he had not now time to make the rec- 
ord within the time heretofore provided by the order 
of this Court made on the 16th day of January 
1906. Affiant is now ready to pay the monev, and 
asks the Court to grant an extension of time to file 
said record long enough to permit the making up 
thereof. l 

B. B. LEE. 

Sworn to before me this 26th day of January, A D 
1906. 

J. S. MANLEY, 
United States Commissioner for the Northern Dis- 
trict of California. 



6 B. Brooks Lee vs. 

In the District Court of the United States, in and for 
the Northern District of California. 

UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, Alias, etc., 

Defendant. 

Order of Court Extending Time to File Record on 

Appeal. 

Good cause appearing therefor, on motion of Wm. 
H. H. Hart, attorney for defendant, it is ordered 
that the time for making up the record on the writ 
of error allowed in the above-entitled action and fil- 
ing the same in the United States Circuit Court of 
Appeals for the Ninth Circuit, be and the same is 
hereby enlarged and extended from this date until 
and including the 8th day of February, 1906. 

Dated San Francisco, January 26th, 1906. 

JOHN J. DE HAVEN, 
U. S. District Judge. 

[Endorsed] : In the District Court of the United 
States, in and for the Northern District of California. 
United States of America vs. B. Brooks Lee, Alias, 
etc, Defendant. Order of Court Extending Time to 
File Record on Appeal, and Affidavit of B. Brooks 
Lee. Filed Jan. 26, 1906. F. D. Monckton, Clerk. 



The United States of America. 7 

No. 1306. United States Circuit Court of Appeals 
for the Ninth Circuit. B. Brook Lee vs. United 
States of America. Three Orders Extending Time 
to Docket Cause and One Affidavit. Refiled Feb. 8, 
1906. F. D. Monckton, Clerk. 



Citation. 

UNITED STATES OF AMERICA— ss. 

The President of the United States, to The United 
States of America, Greeting: 

You are hereby cited and admonished to be and 
appear at a United States Circuit Court of Appeals 
for the Ninth Circuit, to be holden at the city of San 
Francisco, in the State of California, within thirty 
days from the date hereof, pursuant to a writ of 
error duly issued and now on file in the clerk's office 
of the United States District Court for the Northern 
District of California, wherein B. Brooks Lee is 
plaintiff in error, and you are defendant in error, 
to show cause, if any there be, why the judgment 
rendered against the said plaintiff in error, as in the 
said writ of error mentioned, should not be corrected, 
and why speedy justice should not be done to the 
parties in that behalf. 

Witness, the Honorable, JOHN J. DE HAVEN, 
United States District Judge for the Northern Dis- 



8 B. Brooks Lee vs. 

trict of California, this 28th day of November, A. D. 

1905. 

JOHN J. DE HAVEN, 

United States District Judge. 

United States of America, — ss. 

This is to certify that on this 28th day of Novem- 
ber, in the year of our Lord one thousand nine hun- 
dred and five, the foregoing was served upon the 
undersigned and upon the United States of America 
by delivery of a true copy of the within citation to 
me, and an admission of said service is hereby made 

and acknowledged. 

BENJ. L. McKINLEY, 

Assistant United States Attorney. 

[Endorsed] : No. 4271. U. S. Circuit Court of 
Appeals for the Ninth Circuit. B. Brooks Lee, 
Plaintiff in Error, vs. The United States of America, 
Citation on Writ of Error. Piled Nov. 28, 1905. 
Jas. P. Brown, Clerk U. S. District Court, Northern 
District of California. By J. S. Manley, Deputy 
Clerk. 



Writ of Error (Original). 
UNITED STATES OP AMERICA— ss. 

The President of the United States, to the Honor- 
able, the Judge of the District Court of the 
United States for the Northern District of Cali- 
fornia, Greeting: 



The United States of America. 9 

Because, in the record and proceedings, as also in 
the rendition of the judgment of a plea which is in 
the said District Court, before you, or some of you, 
between B. Brooks Lee, plaintiff in error and the 
United States of America, defendant in error, a 
manifest error hath happened, to the great damage 
of the said Brooks Lee, plaintiff in error, as by his 
complaint appears. 

We being willing that error, if any hath been, 
should be duly corrected, and full and speedy jus- 
tice done to the parties aforesaid in this behalf, do 
command you, if judgment be therein given, that 
then under your seal, distinctly and openly, you send 
the record and proceedings aforesaid, with all things 
concerning the same, to the United States Circuit 
Court of Appeals for the Ninth Circuit, together 
with this writ, so that you have the same at the city 
of San Francisco, in the State of California, on the 
26th day of December next, in the said Circuit Court 
of Appeals, to be then and there held, that the record 
and proceedings aforesaid being inspected, the said 
Circuit Court of Appeals may cause further to be 
done therein to correct that error, what of right, and 
according to the laws and customs of the United 
States, should be done. 

Witness, the Honorable MELVILLE W. FUL- 
LER, Chief Justice of the Supreme Court of the 



10 B. Brooks Lee vs. 

United States, the 28th day of November, in the year 

of our Lord one thousand nine hundred and five. 

[Seal] JAMES P. BROWN, 

Clerk TJ. S. District Court, Northern District of 

California. 

Allowed by 

JOHN J. DE HAVEN, 

U. S. District Judge. 

The answer of the Judge of the District Court of 
the United States for the Northern District of Cali- 
fornia to the foregoing writ: 

The record and proceedings whereof mention is 
within made, with all things touching the same, I 
certify under the seal of said court, to the United 
States Circuit Court of Appeals for the Ninth Cir- 
cuit, within mentioned, at the day and place within 
contained in a certain schedule to this writ annexed 
as within I am commanded. 

By the Court. 

[Seal] JAS. P. BROWN, 

Clerk. 

[Endorsed]: No. 4271. United States Circuit 
Court of Appeals for the Ninth Circuit. B. Brooks 
Lee, Plaintiff in Error, vs. The United States, De- 
fendant in Error. Writ of Error. Filed Nov. 28, 
1905. Jas. P. Brown, Clerk U. S. District Court, 
Northern District of California. By John Fouga, 
Deputy Clerk. 



The United States of America. 11 

In the District Court of the United States, in and 
for the Northern District of California. 

THE UNITED STATES, 



Plaintiff. 



vs. 
B. BROOKS LEE, Alias, 



Defendant. 



Praecipe for Transcript and Record. 
To the Clerk of said Court: 

You will please transmit in the above-entitled case, 
to the United States Circuit Court of Appeals in and 
for the Ninth Circuit, the following: 

1. The original writ of error, and the original 
citation issued in said court. 

2. A copy of the indictment. 

3. A copy of the demurrer to the indictment. 

4. A copy of the order of the Court overruling 
said demurrer, and the exception of the defendant 
to said order. 

5. A copy of the record showing the defendant's 
plea, the impaneling of the jury, rendition of the ver- 
dict, the judgment pronounced by the Court, and the 
defendant's exception thereto. 

6. A copy of the defendant's assignment of er- 
rors. 



12 B. Brooks Lee vs. 

7. A copy of the defendant's petition for writ of 
error, and copy of the court's order allowing the 
writ of error. 

8. A copy of the bond given by the defendant. 

9. A copy of the defendant's bill of exceptions. 

WM. H. H. HART, 
Defendant's Attorney. 

[Endorsed] : Filed Jan. 29, 1906. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 



In the District Court of the United States, in and for 
the Northern District of California. 

Indictment. 
Sect. 3893 R. S. as amended by Act of Sept. 26, 1888. 

At a stated term of said court, begun and holden 
at the city and county of San Francisco, in the State 
and Northern District of California, on the first 
Monday in November, in the year of our Lord one 
thousand nine hundred and four. 

The Grand Jurors of the United States of Amer- 
ica, within and for the district aforesaid, on their 
oath present that, 

B. Brooke Lee, 
alias "R. Brooke Sterling," whose true name is to 
the Grand Jurors aforesaid unknown, late of the 
Northern District of California, heretofore, to wit, 



The United States of America. 13 

on the ninth day of January, in the year of our Lord 
one thousand nine hundred and five, at the city and 
county of San Francisco, in the State and Northern 
District of California, then and there being, did then 
and there willfully, unlawfully, knowingly and 
feloniously deposit and cause to be deposited in the 
postoffice establishment of the United States of 
America, at said city and county of San Francisco, 
in said State and Northern District of California, 
for mailing and delivery, by and through and by 
means of the said postoffice establishment of the 
United States of America, a certain written letter, 
which said written letter was enclosed in a sealed 
envelope upon which the postage had been prepaid, 
and addressed to "Miss Jennie Meredith, Goshen, 
Ind. B. B. 8," and w T hich said written letter then and 
there gave information where and how, and of whom, 
and by what means, divers articles and things de- 
signed and intended for the prevention of concep- 
tion and for the procuring of abortion, might be ob- 
tained; and which said written letter was in the 
words and figures following, to wit : 

"Telephone South 946. Office Hours 10 A. M. to 
12 M., 2 to 5 and 7 to 8 P. M., B. Brooke Sterling, 
M. D., Specialist for the Diseases of Women, 1140 
Market Street, San Francisco, Jan. 9th 1905. 



1* B. Brooks Lee vs. 

Jennie Meredith, R. R. 8 Goshen, Ind. 

Dear Miss: In answer to yours of the 2nd inst. 
will say that upon receipt of Ten ($10.00) Dollars 
from you I will send per express necessary treatment 
with full instructions. 

Respectfully, 
R. BROOKE STERLING, M. D., 

PerL." 
Against the peace and dignity of the United States 
of America, and contrary to the form of the statute 
of the said United States of America, in such case 
made and provided. 

MARSHALL B. WOOD WORTH, 

United States Attorney. 

Names of witnesses examined before the said 
Grand Jury, on finding the foregoing indictment: 
Ira O. Dodge. 

[Endorsed] : A True Bill. Colin M. Boyd, Fore- 
man. Presented and filed in open court March 4th, 
1905. Jas. P. Brown, Clerk. By J. S. Manley, 
Deputy Clerk. 



The United States of America. 15 

In the United States District Court, in and for the 
Northern District of California. 

No. 4271. 

THE UNITED STATES OF AMERICA, 

Plaintiff, 
vs. 
B. BROOKS LEE, 

Defendant. 

Demurrer to Indictment. 
The defendant in the above-entitled action hereto- 
fore made and filed his motion to quash and dismiss 
the indictment filed against him herein, and said 
motion having come on regularly to be heard, and 
the Court having overruled said motion, to which 
ruling the defendant has excepted, said defendant 
further appearing in said cause and without admit- 
ting any of the allegations set forth in said indict- 
ment, does hereby file this his demurrer to said in- 
dictment, and as grounds of demurrer specifies : 

I. That said indictment does not state facts suffi- 
cient to constitute an offense. 

II. That said indictment does not state facts 
sufficient to constitute an offense under section 3893 
of the Revised Statutes of the United States, as 
amended by Act of Congress of September 26, 1888. 



16 B. Brooks Lee vs. 

III. That said indictment is multifarious, in 
this: it appears therefrom that said defendant is 
charged with the commission of two offenses under 
section 3893 of the Eevised Statutes of the United 
States, as amended by Act of Congress, September 
26, 1888; that said indictment consists of but one 
count and said two offenses are set forth in said one 
count, whereas said offenses should be separately 
stated in separate counts, if at all. That is to say, 
there is a charge that the defendant in the manner 
specified in said indictment gave information where 
and how, and of whom, and by what means divers 
articles and things designed and intended for the 
prevention of conception might be obtained, and also 
a charge that in the manner specified in said indict- 
ment the defendant gave information where and how, 
and of whom, and by what means divers articles and 
things intended for the procuring of abortion might 
be obtained. 

IV. That said indictment is double and charges 
more than one offense without stating the same in 
separate counts, in this : 

1st. An offense of giving information in the 
manner alleged in the indictment where and how, and 
of whom, and by what means, divers articles and 
things designed and intended for the prevention of 
conception might be obtained and 



The United States of America. 17 

2d. An offense for giving information in the man- 
ner alleged in said indictment where and how, and 
of whom, and by what means, divers articles and 
things designed and intended for the procuring of 
abortion might be obtained; 

V. That said indictment does not state facts suffi- 
cient to constitute the offense of giving information 
to the person therein named, or to any person, where 
and how, and of whom, and by what means divers 
articles and things designed and intended to prevent 
conception might be obtained, for said written letter 
does not contain any statement referring to any 
article or thing designed or intended to prevent con- 
ception or for the procuring of abortion. 

VI. Defendant further demurs to said indict- 
ment on the ground of duplicity, in that said indict- 
ment charges in one count two distinct offenses under 
section 3893 of the Revised Statutes of the United 
States, as amended by Act of Congress September 
26, 1888. 

VII. That said indictment is uncertain, in this: 
that it states that said written letter, alleged to have 
been deposited by the defendant in the postoffice es- 
tablishment of the United States gave information 
where, and how, and of whom, and by what means, 
divers articles and things designed and intended for 
the prevention of conception or for the procuring of 
abortion might be obtained, but it fails to state what 



18 B. Brooks Lee vs. 

articles or things for such purposes might be ob- 
tained; and said alleged offenses are not charged 
with precision and certainty in not showing what 
the articles or things were, or how or in what manner 
the same were to be used, nor does it allege that the 
defendant intended the same to be used for either 
of the purposes alleged. 

VIII. That said indictment is ambiguous, in 
this: that it fails to state what articles or things 
were to be furnished or used, or the manner of their 
use, in order to accomplish either the prevention of 
conception or the procuring of abortion. 

IX. That said indictment is void and insufficient 
in point of law, in this; that said indictment does 
not contain any subject matter, or the copy or de- 
scription, of any letter alleged to have been deposited 
in the postoffice establishment of the United States 
by the defendant, giving any information where, or 
from whom, the said contraband articles and things 
therein mentioned, could be obtained or made, but 
that the copy of the letter alleged to have been de- 
posited in the postoffice establishment, of the United 
States by said defendant, as alleged in said indict- 
ment, contains no subject matter in violation of the 
laws or postal regulations of the United States, or 
of the section of the Revised Statutes of the United 
States, hereinabove particularly referred to, and 
purports to be an answer to a letter alleged to have 



The United States of America. 19 

been written by the defendant to the person therein 
mentioned, but that no copy of said original letter 
constituting the real basis of said indictment and 
said charge and to which the letter set forth in said 
indictment alleged to have been so deposited by said 
defendant, is an answer, is contained or described in 
or in any manner made a part of, said indictment, 
as by law required. 

Wherefore, defendant asks that this demurrer be 
sustained and the indictment dismissed. 

LOUIS P. BOAEDMAN, 
Attorney for Defendant. 

[Endorsed] : Filed May 2d, 1905. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 



At a stated term of the District Court of the United 
States of America, for the Northern District of 
California, held at the courtroom, in the city of 
San Francisco, on Tuesday, the 2d day of May, 
in the year of our Lord one thousand nine hun- 
dred and five. 

[Number and Title of Case.] 

Order Overruling Demurrer and Entering Plea of 

Not Guilty. 

In this case, the motion by the Government to strike 
defendant's plea of misnomer from the files, this day 
came on regularly for hearing. After hearing Ben- 



20 B. Brooks Lee vs. 

jamin L. McKinley, Assistant U. S. Attorney and 
L. P. Boardman, attorney for the defendant, it is 
by the Court ordered that said motion be, and the 
same is hereby, granted, to which order granting said 
motion the defendant, by his attorney, then and there 
duly excepted. A demurrer to the indictment was 
thereupon filed, and after hearing Mr. Boardman, it 
is by the Court ordered that said demurrer be, and 
the same is hereby, overruled, to which order over- 
ruling said demurrer the defendant, by his counsel, 
then and there duly excepted. The defendant was 
thereupon called upon to plead to the indictment. 
Mr. Boardman stated that the defendant stands mute. 
By order of the Court a plea of not guilty is hereby 
entered herein, to which the defendant, by his attor- 
ney, then and there duly excepted. 



At a stated term of the District Court of the United 
States of America, for the Northern District of 
California, held at the courtroom, in the city of 
San Francisco, on Monday, the 15th day of May, 
in the year of our Lord one thousnad nine hun- 
dred and five. 

[Nnmber and Title of Cause.] 

Impaneling of Jury, Trial and Rendition of Verdict. 

In this case, the defendant, with L. P. Boardman, 

his attorney, being present in open court, on motion 



The United States of America. 21 

of Benjamin L. McKinley, Assistant U. S. Attorney, 

it is ordered that the trial hereof do now proceed. 

The Court proceeded to impanel a jury to try this 

cause, to wit : 

H. C. Tibbitts — Accepted and sworn. 

G. W. Barnhart — Accepted and sworn. 

Rudolph G. Wenzel — Challenged for cause by de- 
fendant and excused. 

C. A. Thayer — Accepted and sworn. 

A. H. Adams — Challenged peremptorily by defend- 
ant, and excused. 

G. U. Hind — Accepted and sworn. 

Everett Ames. — Accepted and sworn. 

Joseph Dickman — Accepted and sworn. 

E. D. Jones — Accepted and sworn. 

W. R. Larzelere — Excused by the Court. 

James Kennedy — Challenged peremptorily by de- 
fendant and juror excused. 

Christopher Deterding — Challenged peremptorily by 
defendant, and juror excused. 

William G. Drum — Accepted and sworn. 

P. S. Beel — Challenged for cause by defendant and 
juror excused. 

Walter Mohns — Accepted and sworn. 

L. Altmark — Accepted and sw T orn. 

John R, Goodall — Accepted and sworn. 

George English — Accepted and sworn. 



22 B. Brooks Lee vs. 

The jury being now complete and composed of the 
following-named persons, to wit : H. C. Tibbitts, G. W. 
Barnhart, C. A. Thayer, G. U. Hind, Everett Ames, 
Joseph Dickman, E. D. Jones, William G. Drum, 
Walter Mohns, L. Altmark, John R. Goodall, George 
English, Mr. McKinley called I. O. Dodge, P. J. 
Whelan and W. P. Scudder, who were duly sworn 
and examined as witnesses on behalf of the Govern- 
ment, and rested. Mr. Boardman called the defend- 
ant, Benjamin Brooks Lee, and D. P. Reagan, who 
were duly sworn and examined as witnesses on be- 
half of the defendant, and rested. The case was 
then argued by Mr. Boardman and Mr. McKinley, 
and submitted. The Court charged the jury, who at 
3 o'clock and 30 minutes P. M. retired to deliberate 
upon a verdict. Subsequently, at 3 o'clock and 38 
minutes P. M. the jurors returned into court, and 
upon being asked if they had agreed upon a verdict, 
returned a written verdict, which was ordered re- 
corded, and which verdict is as follows: "We the 
jury, find B. Brooks Lee, alias R. Brooke Sterling, 
the prisoner at the bar, guilty as charged. Walter 
Mohns, Foreman. " On motion of Mr. McKinley, it 
is ordered that the defendant be committed to the 
custody of the U. S. Marshal to await sentence, and 
that he be admitted to bail in the sum of $3,000.00. 
Further ordered that defendant be produced in open 
court on May 23, 1905, at 11 o'clock A. M., for sen- 
tence. 



The United States of America. 23 

At a stated term of the District Court of the United 
States of America, for the Northern District of 
California, held at the courtroom, in the city of 
San Francisco, on Monday, the 29th day of May, 
in the year of our Lord one thousand nine hun- 
dred and live. 

[Number and Title of Case.] 

Order Denying Motion to Arrest Judgment and Mo- 
tion for New Trial and Sentencing Defendant. 

In this case, the defendant being present in open 
court with Louis P. Boardman, his attorney, Ben- 
jamin L. McKinley, Assistant U. S. Attorney, moved 
for judgment on the verdict of guilty heretofore ren- 
dered herein. The defendant was thereupon called 
for sentence, and upon being asked if he had any- 
thing to say why sentence should not be pronounced, 
the defendant filed a motion to arrest the judgment 
herein. After hearing Mr. Boardman, in support 
of said motion, it is by the Court ordered that said 
motion to arrest the judgment be, and the same is 
hereby, denied, to which order defendant, by his at- 
torney, then and there duly excepted. Thereupon the 
defendant filed a motion for a new trial herein. 
After hearing Mr. Boardman, in support of said mo- 
tion, it is by the Court ordered that said motion for 
a new trial be, and the same is hereby, denied, to 
which order denying said motion the defendant, by 



24 B. Brooks Lee vs. 

his attorney, then and there duly excepted. Nothing 
appearing why sentence should not be pronounced, 
it is by the Court ordered that the said B. Brooks 
Lee, alias R. Brooke Sterling, for the crime of which 
he stands convicted, be, and he is hereby, sentenced 
to pay a fine of five hundred (500) dollars, and in de- 
fault of the payment of said fine that he be impris- 
oned in the county jail of the city and county of San 
Francisco, State of California, until said fine be paid, 
to which judgment the defendant, by his counsel, 
then and there duly excepted. On motion of Mr. 
Boardman, it is ordered that execution of the judg- 
ment herein be, and the same is hereby, stayed for the 
period of five days. 



In the District Court of the United States, in and for 
the Northern District of California. 

No. 4271. 

THE UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, alias R. BROOKE STERLING 

Verdict. 
We, the jury, find B. Brooks Lee, alias R. Brooke 
Sterling, the prisoner at the bar, guilty as charged. 

WALTER MOHNS, 
Foreman. 



The United States of America. 25 

[Endorsed]: Filed May 15th, 1905, at 3 o'clock 
and 38 minutes P. M. Jas. P. Brown, Clerk. By J. 
S. Manley, Deputy Clerk. 



At a stated term of the District Court of the United 
States for the Northern District of California, 
held at the courtroom in the city and county of 
San Francisco, on Monday, the 29th day of May, 
A. D. 1905. Present: The Honorable JOHN J. 
DE HAVEN, Judge. 

No. 4271. 

THE UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, alias R. BROOKE STERLING, 

Defendant. 

Judgment on Verdict of Guilty. 

Benjamin L. McKinley, Assistant U. S. Attorney; 
the defendant and his counsel, L. P. Boardman, came 
into court. The defendant was duly informed by the 
Court of the nature of the indictment filed on the 4th 
day of March, 1905, charging him with the crime of 
giving information as to where an abortif acient can 
be procured; of his arraignment and plea of not 
guilty ; of his trial and the verdict of the jury on the 
15th day of May, 1905, to wit: "We, the jury, find 



26 B. Brooks Lee vs. 

B. Brooks Lee, alias R. Brooke Sterling, the prisoner 
at the bar, Guilty as charged" : 

The defendant was then asked if he had any legal 
cause to show why judgment should not be pro- 
nounced against him, and no sufficient cause being- 
shown or appearing to the Court, thereupon the 
Court rendered its judgment: 

That whereas, the said B. Brooks Lee, alias R, 
Brooke Sterling, having been duly convicted in this 
court of the crime of giving information as to where 
an abortif acient can be procured, — 

It is therefore ordered, adjudged and decreed that 
the said B. Brooks Lee, alias R. Brooke Sterling be, 
and he is hereby, sentenced to pay a fine of five hun- 
dred (500) dollars. And in default of the payment 
of said fine of five hundred (500) dollars, the said B. 
Brooks Lee, alias R. Brooke Sterling, be imprisoned 
until said fine be paid, or until he be otherwise dis- 
charged by due process of law. And it is further 
ordered that said judgment of imprisonment be exe- 
cuted upon the said B. Brooks Lee, alias R. Brooke 
Sterling by imprisonment in the county jail of the 
City and County of San Francisco, State of Cali- 
fornia. 

JOHN J. DE HAVEN, 
United States District Judge, Northern District of 
California. 



The United States of America. 27 

[Endorsed]: Filed May 29th, 1905. Jas. P. 
Brown, Clerk. By John Fouga, Deputy Clerk. 



In the District Court of the United States, in and for 
the Northern District of California. 

No. 4271. 

THE UNITED STATES OF AMERICA, 

Plaintiff, 

vs. 

B. BROOKS LEE, alias R. BROOKE STERLING, 

Defendant. 

Petition for a Writ of Error and Supersedeas. 

B. Brooks Lee, the defendant in the above-entitled 
cause, feeling himself aggrieved by the verdict of the 
jury, and the judgment entered on the 29th day of 
May, 1905, in said cause, comes now by his attorney 
and petitions said Court for an order allowing him, 
said defendant, to prosecute a writ of error to the 
Honorable, the United States Circuit Court of Ap- 
peals for the Ninth Circuit, under and according to 
the laws of the United States, in that behalf made 
and provided ; and also that an order be made fixing 
amount of security which the defendant shall give 
and furnish upon said writ of error, and that upon 
the giving of such security all further proceedings in 
this Court be suspended and stayed until the deter- 



28 B. Brooks Lee vs. 

raination of said writ of error by the United States 
Circuit Court of Appeals for the Ninth Circuit. 
And your petitioner will ever pray. 
Dated June 1st, 1905. 

LOUIS P. BOARDMAN, 
Attorney for Defendant. 

[Endorsed] : Filed June 1st, 1905. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 



In the District Court of the United States, in and for 
the Northern District of California. 

No. 4671. 

THE UNITED STATES OP AMERICA, 

Plaintiff, 

vs. 

B. BROOKS LEE, alias R, BROOKE STERLING, 

Defendant, 

Assignment of Errors. 

Afterwards, to wit, on the first day of June, 1905, 
comes the said B. Brooks Lee, by Louis P. Board- 
man, his attorney, and says that in the record and 
proceedings in the above-entitled cause there is mani- 
fest error in this, to wit : 

1. That the said District Court committed mani- 
fest error in said action in overruling, disallowing 
and denying the said defendant's motion to quash 



The United States of America. 29 

and set aside the indictment in said action, which said 
ruling is to the great detriment, injury and prejudice 
of your petitioner, and in violation of the rights con- 
ferred upon him by law. 

2. That the said District Court committed mani- 
fest error in overruling the demurrer of the said de- 
fendant to the indictment in said action, which ruling 
is to the great detriment, injury and prejudice of 
your petitioner, and in violation of the rights under 
the law. 

3. That the said District Court committed mani- 
fest error in granting the motion of the prosecution 
to strike out and from the files in said action the 
plea of misnomer filed therein by defendant, and in 
making its order striking from the files and records 
in said action the plea of misnomer presented and 
filed by defendant therein, which ruling is to the great 
detriment, injury and prejudice of your petitioner 
and in violation of the rights conferred upon him by 
law. 

4. That the said District Court committed mani- 
fest error in causing the defendant to be arraigned 
upon the indictment herein for a plea to the merits 
thereof, and in causing to be entered of its own mo- 
tion a plea of "not guilty," for the purposes of a 
trial of defendant before a jury, after the making of 
its said order striking from the files of said Court de- 
fendant's plea of misnomer in said action, which 



30 B. Brooks Lee vs. 

ruling is to the great detriment, injury and prejudice 
of your petitioner and in violation of the rights con- 
ferred upon him by law. 

5. That the said District Court committed mani- 
fest error in limiting the examination of the talesman 
C. A. Fair, concerning his prejudice and bias toward 
the case and the defendant, and thereby preventing 
defendant from laying the proper foundation of a 
challenge for cause to said juror, it appearing from 
the statements of said Fair that he was prejudiced ; 
that said Court also committed manifest error in com- 
menting upon the state of mind of said juror in the 
absence of sufficient examination respecting his state 
of mind and qualifications to act as a juror in the 
case, all of the peremptory challenges of defendant 
allowed by the Court having been exhausted, which 
ruling and action of the Court is to the great detri- 
ment, injury and prejudice of your petitioner, and 
in violation of the rights conferred upon him by law. 

6. That the said District Court committed mani- 
fest error in its remarks made in the course of the 
examination of the talesman Edward Beale, concern- 
ing the qualifications of a juror to act in the case; 
which action and ruling of the Court is to the great 
detriment and injury and prejudice of your peti- 
tioner and in violation of the rights conferred upon 
him by law. 

7. That the said District Court committed mani- 
fest error in directing the jury to be sworn to try the 



The United States of America. 31 

case at a time when the defendant had exercised but 
three peremptory challenges, and no more, and in 
limiting said defendant to three peremptory chal- 
lenges in the selection of said jury over the objection 
and exception of defendant; which ruling is to the 
great detriment, injury and prejudice of your peti- 
tioner, and in violation of the rights conferred upon 
him by law. 

8. That the said District Court committed mani- 
fest error in overruling the objection of the defendant 
to the admission of the carbon copy of a letter, in 
which an advertisement in the " Chronicle' ' is men- 
tioned concerning certain medicines, and which was 
offered in connection with the evidence of the wit- 
ness Dodge, marked "IT. S. Exhibit No. 1"; which 
ruling is to the great detriment, injury and prejudice 
of your petitioner and in violation of the rights con- 
ferred upon him by law. 

9. That the said District Court committed mani- 
fest error in overruling the defendant's objection to 
the question asked by counsel for the prosecution, and 
to the introduction in evidence of the envelope ad- 
dressed "Miss Jennie Merideth," offered in connec- 
tion with the evidence of the said witness Dodge; 
which ruling is to the great detriment, injury and 
prejudice of your petitioner, and in violation of the 
rights conferred upon him by law. 



32 B. Brooks Lee vs. 

10. That the said District Court committed mani- 
fest error in overruling defendant's objection to the 
introduction in evidence of the paper marked "U. S. 
Exhibit No. 2," purporting to be a letter written 
and relating to the subject matter contained in "U. S. 
Exhibit No. 1," which ruling is to the great detriment, 
injury and prejudice of your petitioner and in viola- 
tion of the rights conferred upon him by law. 

11. That the said District Court committed mani- 
fest error in sustaining the objection to the question 
asked by defendant of the witness Dodge, referring 
to the letter marked "U. S. Exhibit No. 1," in which 
it was stated "your advertisement in the ' Chronicle' 
appeals to me just now," and the witness was asked 
if such statement was true or false, which ruling is 
to the great detriment, injury and prejudice of your 
petitioner, and in violation of the rights conferred 
upon him by law. 

12. That the said District Court committed mani- 
fest error in sustaining the objection to defendant's 
question asked the witness Dodge, "if at the time he 
submitted his evidence to the Grand Jury, he had 
any reason to believe that the defendant was the per- 
son who wrote the letter, or against whom he was 
aiming his efforts" ; which ruling is to the great detri- 
ment, injury and prejudice of your petitioner and 
contrary to the rights conferred upon him by law. 



The United States of America. 33 

13. That the said District Court committed mani- 
fest error in overruling the defendant's objection to 
the question asked by the prosecution of the witness 
P. J. Wheelan, referring to the defendant, as follows : 
"How long ago did he cease to be at 1140 Market 
Street?" which ruling is to the great detriment, in- 
jury and prejudice of your petitioner, and contrary 
to his rights under the law. 

14. That the said District Court committed mani- 
fest error in overruling the defendant's objection to 
the following question put by the prosecution to the 
witness Scudder in referring to the defendant as fol- 
lows: "Do you know him under the name of R. 
Brooks Sterling?" Which ruling is to the great det- 
riment, injury and prejudice of your petitioner, and 
in violation of the rights conferred upon him by law. 

15. That the said District Court committed mani- 
fest error in denying the motion of defendant to 
strike out and from the evidence the answer of the 
witness Scudder to the question specified in assign- 
ment numbered 14, as follows: "To the best of my 
knowledge, yes." Which ruling is to the great detri- 
ment, injury and prejudice of your petitioner and in 
violation of the rights conferred upon him by law. 

16. That the said District Court committed man- 
ifest error in overruling the defendant's objection to 
the following question put by the prosecution to the 
witness Scudder, to wit: "And all letters addressed to 



34 B. Brooks Lee vs. 

Dr. R. Brooke Sterling are delivered by you in due 
course of mail at the office of this defendant ?" 
Which ruling is to the great detriment, injury and 
prejudice of your petitioner, and in violation of the 
rights conferred upon him by law. 

17. That the said District Court committed man- 
ifest error in sustaining the objection to the question 
asked of the defendant by his counsel, after the wit- 
ness had testified that he had changed his place of 
business, the question being: " Under what circum- 
stances?" Which ruling is to the great detriment, 
injury and prejudice of your petitioner, and contrary 
to the rights conferred upon him by law. 

18. That the said District Court committed man- 
ifest error in sustaining the objection of the prosecu- 
tion to the question asked of the defendant by his 
counsel, as follows: "Did you become possessed of any 
part of the business of the Dr. Talcott Company, at 
the time the doctor's company sold out?" Which 
ruling is to the great detriment, injury and prejudice 
of your petitioner and in violation of the rights con- 
ferred upon him by law. 

19. That the said District Court committed man- 
ifest error in sustaining the objection of the prosecu- 
tion to the question asked of defendant by his coun- 
sel, as follows: "Did you know a Doctor Sterling 
positively, or by reputation?" Which ruling is to 
the great detriment, injury and prejudice of your 



The United States of America. 35 

petitioner and in violation of the rights conferred 
upon him by law. 

20. That the said District Court committed man- 
ifest error in limiting the examination and testimony 
of the defendant concerning Dr. Sterling in the fol- 
lowing language: "Then just ask him whether he 
knew E. Brooke Sterling''; and in sustaining the ob- 
jection of the prosecution to the question asked de- 
fendant by his counsel, as follows: "Do you know a 
Dr. Sterling positively, or by reputation?" And the 
ruling of the Court was as follows: "I sustain it for 
the reason stated." "If counsel desires to ask the 
defendant whether he knew Dr. R. Brooke Sterling, 
he may ask that question." Which ruling is to the 
great detriment, injury and prejudice of your peti- 
tioner, and in violation of the rights conferred upon 
him by law. 

21. That the said District Court committed man- 
ifest error in sustaining the objection of the prosecu- 
tion to the question asked of the defendant by his 
counsel, referring to R. Brooke Sterling as follows: 
"Do you know where he did business, or with whom 
he was connected during the year 1904, if at all?" 
Which ruling is to the manifest detriment, injury 
and prejudice of your petitioner and contrary to law. 

22. That the said District Court committed man- 
ifest error in sustaining the objection of the prosecu- 
tion to the question asked of the defendant by his 



36 B. Brooks Lee vs. 

counsel, as follows: "Do you know where the office 
of Dr. Sterling was during the year 1904, particu- 
larly the latter part of it?" Which said ruling is to 
the great detriment, injury and prejudice of your 
petitioner and in violation of the rights conferred 
upon him by law. 

23. That the said District Court committed man- 
ifest error in limiting the examination of defendant 
concerning the identity and place of business of Dr. 
Sterling in the following language to his counsel: 
"You would be permitted to put Dr. Sterling on the 
stand, or you would be permitted to prove by anyone 
who knows Dr. Sterling, if you can prove that fact, 
if there is any person in the world who knows where 
Dr. Sterling's office is, who has seen Dr. Sterling, 
put him on the stand and prove it." And in the 
following: "If there is such a person, it is the easiest 
thing in the world to find some one who knows him." 
Which limitation and ruling of the Court in said ex- 
amination is to the great detriment, injury and pre- 
judice of your petitioner, and in violation of the 
rights of defendant conferred upon, him by law. 

24. That the said District Court committed man- 
ifest error in sustaining the objection of the prosecu- 
tion to the question asked of the defendant by his 
counsel, as follows: "Doctor, do you get any mail at 
1140 Market Street at all?" Which ruling is to the 



The United States of America. 37 

manifest injury and prejudice of your petitioner and 
in violation of the rights conferred upon him by law. 

25. That the said District Court committed man- 
ifest error in sustaining the objection of the prosecu- 
tion to the question asked by defendant of the wit- 
ness Ragan, referring to the defendant as follows: 
"Do you know his character as a physician and sur- 
geon in this city and county?" Which ruling is to 
the great detriment, injury and prejudice of your 
petitioner, and in violation of the rights conferred 
upon him by law. 

26. That there is manifest error in said action and 
the proceedings and record therein, in this, to wit, 
that the evidence in said action is wholly insufficient 
to justify the verdict of the jury therein, or to sup- 
port a verdict of guilty, and that said evidence does 
not show the commission by defendant of any crime 
against the laws of the United States, and particu- 
larly that the evidence herein does not show the com- 
mission by defendant of any offense under section 
3893 of the Revised Statutes of the United States, as 
amended by the Act of September 26th, 1888. 

27. That the said District Court committed man- 
ifest error in giving to the jury the following instruc- 
tion: "In other words, the only questions for you to 
consider here are, did the defendant deposit, or cause 
to be deposited, in the United States mail the letter 
set out in the indictment, and did that letter give in- 



38 B. Brooks Lee vs. 

formation as to where, or of whom, or by what means 
articles and things for the prevention of conception 
or for the procuring of abortion might be obtained. 
If you find these facts to be true to a moral certainty 
and beyond all reasonable doubt, it will be your duty 
to return a verdict of guilty as charged." Which 
ruling and action of the Court are to the great detri- 
ment, injury and prejudice of your petitioner, and in 
violation of the rights conferred upon him by law. 

28. That the said District Court committed mani- 
fest error in denying, refusing and overruling the 
defendant's motion for a new trial; which ruling is 
to the great detriment, injury and prejudice of 
your petitioner. 

29. That the said District Court committed mani- 
fest error in denying, refusing and overruling the 
defendant's motion in arrest of judgment; which 
ruling is to the great injury and prejudice of your 
petitioner and in violation of the rights conferred 
upon him by law. 

30. That the said District Court committed mani- 
fest error in sentencing defendant to pay a fine of 
five hundred ($500.00) dollars, and to be imprisoned 
in the county jail of the city and county of San Fran- 
cisco until said fine is paid; which judgment is to 
the great detriment, injury and prejudice of your 
petitioner, and contrary to and in violation of the 
rights conferred upon him by law. 



The United States of America. 39 

Wherefore, the said B. Brooks Lee prays that the 
judgment in this case be set aside and reversed, and 
that the aforesaid United States District Court, for 
the Northern District of California be ordered to 
enter an order directing the discharge of said B. 
Brooks Lee from custody. 
June 1st, 1905. 

LOUIS P. BOARDMAN, 
Attorney for B. Brooks Lee, Plaintiff in Error. 

[Endorsed] : Filed June 1st, 1905. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 



In the District Court of the United States, Northern 
District of California. 

No. 4271. 

THE UNITED STATES OF AMERICA, 

Plaintiff, 

vs. 

B. BROOKS LEE, Alias R. BROOKE STERLING, 

Defendant. 

Order Allowing Writ of Error, Fixing Amount of 
Security, and Staying Proceedings. 
Urpon petition of the defendant, B. Brooks Lee, 
and the filing of an assignment of errors in said 
cause ; 



40 B. Brooks Lee vs. 

It is hereby ordered that said defendant be and 
he is hereby allowed a writ of error in this cause 
from said District Court to the United States Cir- 
cuit Court of Appeals, in and for the Ninth Circuit, 
and that upon his filing a bond in the sum of seven 
hundred and fifty dollars to be approved by the 
clerk of this court, to secure the payment of the 
fine imposed upon him by the judgment of this court, 
given and entered on May 29th, 1905, and for the 
payment of costs upon the writ of error, all further 
proceedings in this court shall be suspended and 
stayed upon said judgment until the determination 
of said writ of error by said United States Circuit 
Court of Appeals. 

Dated June 1, 1905. 

JOHN J. DE HAVEN, 

Judge. 

[Endorsed] : Filed Jun. 1, 1905. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 



Supersedeas Bond. 

United States of America, 
Northern District of California, — ss. 

Be it remembered, that on this 12th day of June, 
in the year of our Lord one thousand nine hundred 
and five, before me, J. S. Manley, a United States 



The United States of America. 41 

Commissioner duly appointed by the District Court 
of the United States for the Northern District of 
California, to take acknowledgments of bail and affi- 
davits, pursuant to the Acts of Congress, in that 
behalf, personally appeared B. Brooks Lee, alias R. 
Brooke Sterling, as principal, and Thomas Mc- 
Donough and Frank McDonald, as sureties, and 
jointly and severally acknowledged themselves to 
be indebted to the United States of America in the 
sum of seven hundred and fifty (750) dollars, sepa- 
rately to be levied and made out of their respective 
goods and chattels, and lands and tenements, to the 
use of the United States. 

The condition of the above recognizance is such 
that whereas, an indictment was found by the Grand 
Jury of the United States for the Northern Dis- 
trict of California, and filed on the 4th day of March, 
1905, in the District Court of the United States for 
the Northern District of California, charging the 
said B. Brooks Lee, alias R. Brooke Sterling, with 
giving information as to where an abortifacient can 
be procured; 

And whereas, the said B. Brooks Lee, alias R. 
Brooke Sterling, was thereafter brought to trial on 
said indictment before a jury in said United States 
Court, was there found guilty and sentenced to pay a 
fine of five hundred (500) dollars, and in default of 
the payment of said fine, to be imprisoned in the 



42 B. Brooks Lee vs. 

county jail of the city and county of San Francisco, 
California, until said fine be paid; and 

Whereas, after such conviction said B. Brooks Lee 
sued out in the United States Circuit Court of Ap- 
peals for the Ninth Circuit a writ of error to said 
District Court for the Northern District of Cali- 
fornia; 

And whereas, by an order made and entered by 
the Honorable John J. De Haven, Judge of the 
United States District Court for the Northern Dis- 
trict of California, on the 1st day of June, 1905, 
the said B. Brooks Lee, alias R. Brooke Sterling, 
has been admitted to bail, pending the said deter- 
mination in said United States Circuit Court of Ap- 
peals for the Ninth Circuit, of said writ of error, 
in the sum of seven hundred and fifty (750) dol- 
lars — 

Now, therefore, if the said B. Brooks Lee, alias R. 
Brooke Sterling, shall personally appear and ren- 
der himself in judgment on the final determination 
in said United States Circuit Court of Appeals for 
the Ninth Circuit, of said writ of error, at and be- 
fore the said District Court of the United States 
aforesaid, or whenever or wherever he may be re- 
quired to answer said judgment, and all matters 
and things that may be objected against him, when- 
ever the same may be prosecuted, and render him- 
self amenable to any and all lawful orders and 



The United States of America. 43 

process in the premises, and not depart the said 
District and said Court without leave first obtained, 
and if said writ of error shall be dismissed, shall 
appear and render himself in execution of the judg- 
ment herein, then this recognizance shall be void; 
otherwise to remain in full effect and virtue. 

B. B. LEE. [Seal] 

FRANK McDONALD. [Seal] 

thos. Mcdonough. [Seal] 

Subscribed and asknowledged before me this 12th 
day of June, A. D. 1905. 

J. S. MANLEY, 

United States Commissioner for the Northern Dis- 
trict of California, at San Francisco. 

United States of America, 
Northern District of California, — ss. 

Thomas McDonough and Frank McDonald, be- 
ing duly sworn, each for himself deposes and says, 
that he is a householder in said District, and is 
worth the sum of seven hundred and fifty (750) dol- 
lars, exclusive of property exempt from execution, 
and over and above all debts and liabilities. 

thos. Mcdonough, 
frank Mcdonald. 



4*4 JB. Brooks Lee vs. 

Subscribed and sworn to before me, this 12th day 
of June, A. D. 1905. 

J. S. MANLEY, 
United States Commissioner for the Northern Dis- 
trict of California, at San Francisco. 
The form of the foregoing bond and the sufficiency 
of the sureties is hereby approved. 

BENJ. L. McKINLEY, 
Asst. U. S. Attorney. 
The foregoing bond approved this 12th day of 
June, 1905. 

JAS. P. BROWN, 
Clerk U. S. District Court, Northern District of 

California. 

[Endorsed] : Piled Jun. 12, 1905. Jas. P. Brown, 
Clerk. 



In the District Court of the United States, in and for 
the Northern District of California 

THE UNITED STATES, 

Plaintiff, 
vs. 

B. BROOKE LEE, alias R. BROOKE STER- 
LING, 

Defendant. 

Bill of Exceptions. 
Be it remembered that at a regular term of said 
Court held at the city and county of San Francisco, 



The United States of America, 45 

State of California, beginning on the first Monday 
of November, 1904, the Grand Jury regularly im- 
paneled found and returned into open court an in- 
dictment against said defendant, B. Brooks Lee, 
alias R. Brooke Sterling, and which indictment was 
filed in said court on the 4th day of March, 1905. 

A true copy of said indictment and of the records 
of the filing of the same is as follows : 

In the District Court of the United States, in and for 
the Northern District of California. 

At a stated term of said Court, begun and holden at 
the city and county of San Francisco, in the 
State and Northern District of California, on 
the first Monday in November, in the year of 
our Lord one thousand nine hundred and four : 
The Grand Jurors of the United States of 
America, within and for the District aforesaid, on 
their oath present: That B. Brooke Lee, alias "R, 
Brooke Sterling," whose name is to be the Grand 
Jurors aforesaid unknown, late of the Northern 
District of California, heretofore, to wit, on the ninth 
day of January, in the year of our Lord one thou- 
sand, nine hundred and five, at the city and county of 
San Francisco, in the State and Northern District 
of California, then and there being, did then and 
there willfully, unlawfully, knowingly and feloni- 
ously deposit and cause to be deposited in the post- 



46 B. Brooks Lee vs. 

office establishment of the United States of America, 
at said city and county of San Francisco, in said 
State and Northern District of California, for mail- 
ing and delivery, by and through and by means of 
the said postoffice establishment of the United States 
of America, a certain written letter, which said 
written letter was enclosed in a sealed envelope upon 
which the postage had been prepaid, and addressed 
to "Miss Jennie Meredith, Goshen, Ind., R. R. 8," 
and which said written letter then and there gave 
information where and how, and of whom, and by 
what means, divers articles and things designed and 
intended for the prevention of conception and for 
the procuring of abortion might be obtained; and 
which said written letter was in the words and 
figures following, to wit: 

"Telephone South 946. Office hours 10 A. M. to 
12 M., 2 to 5 and 7 to 8 P. M. R. Brooke Sterling, 
M. D., Specialist for the Diseases of Women, 1140 
Market St., San Francisco, Jan. 9th, 1905. 
"Jennie Meredith, R. R. 8, Goshen, Ind. 

Dear Miss: In answer to yours of the 2nd inst. 
will say that on receipt of Ten ($10.) Dollars from 
you I will send per express necessary treatment 
with full instructions. 

Respectfully, 
R. BROOKE STERLING, M. D. 

PerL." 



The United States of America. 47 

—against the peace and dignity of the United States 
of America, and contrary to the form of the statute 
of the said United States of America, in such case 
made and provided. 

MARSHALL B. WOODWORTH, 

United States Attorney. 
Names of witnesses examined before the said 
Grand Jury, on finding the foregoing indictment: 
Ira O. Dodge. 

[Endorsed]: No. 4271. U. S. District Court, 
Northern District of California. The United States 
of America vs. B. Brooke Lee, alias R. Brooke Ster- 
ling. Indictment for Giving Information as to 
where an Abortifacient can be procured. A True 
Bill. Colin M. Boyd, Foreman. Presented and 
Filed in Open Court March 4th, 1905. Jas. P. 
Brown, Clerk, by J. S. Manley, Deputy Clerk. 
Marshall B. Woodworth, United States Attorney. 

On the 1st day of April, 1905, the defendant filed 
objections to, and motion to quash, the indictment in 
this case, and the following is a copy of said ob- 
jections and motion: 



48 B. Brooks Lee vs. 

In the District Court of the United States, in and for 
the Northern District of California. 

No. 4271. 
THE UNITED STATES OF AMERICA, 

Plaintiff, 

vs. 

B. BROOKS LEE, 

Defendant. 

Motion to Quash, Set Aside and Dismiss the Indict- 
ment in the Above-entitled Case. 

Now comes the defendant above named, by Louis 
P. Boardman, his attorney, and objects to the in- 
dictment in the above-entitled action, and moves the 
Court to quash, set aside and dismiss said indictment, 
upon the following grounds, to wit : 

First: That it appears upon the face of said in- 
dictment that there are two alleged offenses charged 
in said indictment in one count only, and not sepa- 
rately stated in separate counts, viz. : 

1st. An alleged offense on the part of the de- 
fendant by reason of alleged acts complained of giv- 
ing information where, how, and of whom, and by 
w r hat means divers articles and things designed and 
intended for the prevention of conception might be 
obtained; with 

2d. An alleged offense on the part of the de- 
fendant by reason that the acts complained of give 
information where, and how, and of whom, and by 



The United States of America. 49 

what means divers articles and things designed and 
intended for the procuring of abortions might be ob- 
tained. 

Second: Said indictment should be quashed and 
dismissed for the reason that it charges two offenses 
in one count, viz: 

One offense alleged to have been committed by the 
defendant in having willfully, unlawfully, knowingly 
and feloniously deposited and caused to be deposited 
in the postoffice establishment of the United States 
of America, at said city and county of San Fran- 
cisco, in said State and Northern District of Cali- 
fornia, for mailing and delivery by and through and 
by means of the said postoffice establishment of the 
United States of America, a certain written letter, 
which said written letter was enclosed in a sealed 
envelope upon which the postage had been prepaid, 
and addressed to the person and in the manner 
stated in said indictment and which said written 
letter then and there gave information where and 
how and of whom and by what means divers articles 
and things designed and intended for the prevention 
of conception might be obtained, is joined in the 
same count with a second offense alleged to have 
been committed by the defendant at said city, county, 
State and District aforesaid, by then and there will- 
fully, unlawfully, knowingly and feloniously deposit- 
ing and causing to be deposited in the postoffice 
establishment of the United States of America, at 



50 B. Brooks Lee vs. 

said city and county of San Francisco, in said State 
and Northern District of California, for mailing 
and delivery by and through and by means of the 
said postoffice establishment of the United States of 
America, a certain written letter, which said written 
letter was enclosed in a sealed envelope upon which 
the postage had been prepaid and addressed to the 
person and in the manner stated in said indictment, 
and which said written letter and there gave 
information where, how, and of whom, and by what 
means divers articles and things designed and in- 
tended for the procuring of abortion might be ob- 
tained. 

Third : That said one offense of which the defend- 
ant is charged, viz. : of giving information where and 
how, and of whom, and by what means, divers arti- 
cles and things designed and intended for the pre- 
vention of conception might be obtained, is improp- 
erly joined in the same count with an alleged offense, 
alleged to have been committed by the defendant, in 
giving information where and how, and of whom, 
and by what means, divers articles and things de- 
signed and intended for the procuring of abortion 
might be obtained. 

Fourth : That the second offense of which the de- 
fendant is charged, viz. : giving information where 
and how, and of whom, and by what means, divers 
articles and things designed and intended for the 



The United States of America. 51 

procuring of abortion might be obtained, is improp- 
erly joined in the same count with the other offense 
alleged against said defendant, of giving information 
where and how, and of whom, and by what means, 
divers articles and things designed, and intended for 
the prevention of conception might be obtained; 
and said two alleged offenses cannot be joined in the 
same count in the same indictment. 

Fifth: Said indictment should be quashed, set 
aside and dismissed because it alleges the commission 
by the defendant of two separate offenses, each of 
which is stated and set forth in the same count of 
said indictment; and said offenses are improperly 
joined and cannot now be separated. 

Sixth : That the written letter, set forth in said in- 
dictment, fails to show that the articles referred to 
were intended to be used, or ever had been used, for 
the purpose of preventing conception, and there is 
a variance between the allegations of said indictment 
which alleges that the divers articles and things were 
designed and intended for the prevention of con- 
ception, and said indictment should be quashed and 
dismissed. 

Seventh : That said indictment does not charge an 
offense coming within the provisions of section 3893 
of the Revised Statutes of the United States, as 
amended by act of Congress, September 26, 1888. 



52 B. Brooks Lee vs. 

Eighth: Said indictment should be quashed, set 
aside and dismissed on the ground that it is multi- 
farious, in this: that two separate offenses are 
charged in said indictment, which, if charged, should 
be charged in separate counts, for under the law 
they cannot be charged in one count of an indict- 
ment. 

Ninth: Said defendant also objects to, and moves 
to quash and set aside and dismiss said indictment 
upon the ground that the grand jurors constituting 
the jury which found said indictment were sworn in 
and said grand jury was impaneled previous to the 
commission of the alleged offenses charged in said 
indictment, and this defendant did not have oppor- 
tunity to challenge said grand jury, or its formation, 
or opportunity to challenge the individual members 
thereof. 

Tenth: That the said indictment is void and in- 
sufficient in point of law, in this: that said indict- 
ment does not contain any subject matter, or the 
copy or description, of any letter alleged to have been 
deposited in the postoffice establishment of the 
United States by the defendant, giving any informa- 
tion where, or from whom, the said contraband arti- 
cles and things therein mentioned could be obtained 
or made, but that the copy of the letter alleged to 
have been deposited in the postoffice establishment of 
the United States by said defendant, as alleged in 
said indictment, contains no subject matter in viola- 



The United States of America. 53 

tion of the laws or postal regulations of the United 
States, or of the section of the Revised Stat- 
utes of the United States, hereinabove particu- 
larly referred to, and purports to be an answer 
to a letter alleged to have been written by the 
defendant to the person therein mentioned, but 
that no copy of said original letter constituting the 
real basis of said indictment and said charge and to 
which the letter set forth in said indictment alleged 
to have been so deposited by said defendant, is an 
answer, is contained or described in, or in any man- 
ner made a part of, said indictment, as by law re- 
quired. 

Wherefore, defendant asks that this motion be 
sustained and the indictment dismissed. 

LOUIS P. BOARDMAN, 
Attorney for Defendant. 

[Endorsed] : In the United States District Court, 
in and for the Northern District of California. The 
United States of America, Plaintiff, vs. B. Brooks 
Lee, Defendant. Motion to Quash the Indictment. 
Filed April 1st, 1905. Jas. P. Brown, Clerk. By J. 
S. Manly, Deputy Clerk. 

Said objection to, and motion to quash, came on 
regularly for hearing on the 1st day of April, 1905, 
and the same having been argued and submitted, and 
duly considered by the Court, said motion was by 
the Court on the 15th day of April, 1905, denied, to 



54 B. Brooks Lee vs. 

which ruling the defendant then and there duly ex- 
cepted. 

On the 19th day of April, 1905, the defendant filed 
a plea of misnomer, of which the following is a copy : 

In the District Court of the United States in and for 
the Northern District of California. 

No. 4271. 

THE UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE. 

Plea of Misnomer. 

Benjamin Brooks Lee, who is indicted by the name 
of B. Brooks Lee, alias "R. Brooke Sterling," in his 
own proper person now comes into Court, and having 
heard the said indictment read, says that he was 
named by the name of Benjamin Brooks Lee, to wit: 
At the city of Columbia, in the State of South 
Carolina, and by the Christian name of Benjamin 
Brooks, and has also, since his naming, been called 
and known by the name of Benjamin Brooks Lee; 
without this, that he, the said Benjamin Brooks Lee, 
is not now, nor at any time hitherto, has been called 
or known by the Christian name of B. Brooks, or by 
the said alias name of "B. Brooke Sterling," as by 
the said indictment is alleged, and that this, the said 
Benjamin Brooks Lee is ready to verify. 



The United States of America. 55 

Wherefore, he prays judgment of the said indict- 
ment and that the same may be quashed, and that he 
be permitted to go hence without day. 

B. B. LEE. 
LOUIS P. BOARDMAN, 
Attorney for Defendant. 

United States of America, 
Northern District of California, — ss. 

Benjamin Brooks Lee, the defendant in this prose- 
cution, makes oath and says : 

That the foregoing plea is true in substance and 
matter of fact, and that the defendant was named by 
the name of Benjamin Brooks, and has never been 
known or called by any other Christian name, nor 
by the said alias "R. Brooke Sterling." 

B. B. LEE. 

Subscribed and sworn to before me, this 19th day 
of April, 1905. 

ADELINE COPELAND, 
Notary Public in and for the City and County of 
San Francisco, State of California. 

[Endorsed]: Filed April 19th, '05. Jas. P. 
Brown, Clerk. By J. S. Manley, Deputy Clerk. 

On April 20, 1905, plaintiff filed demurrer to 
plea of misnomer, of which the following is a copy: 



56 < B. Brooks Lee vs. 

In the District Court of the United States, in and 
for the Northern District of California. 

No. 4271. 

THE UNITED STATES OP AMERICA 

vs. 

B. BROOKS LEE. 

Demurrer to Plea of Misnomer. 

Now comes the United States of America and 
demurs to the plea of misnomer interposed on be- 
half of the defendant herein, upon the following 
ground, to wit: 

That said plea does not set forth facts sufficient 
to constitute a plea of misnomer. 

(Sgd.) BENJ. L. McKINLEY, 
Asst. United States Attorney. 
Which demurrer to plea of misnomer is endorsed : 
Filed April 20, 1905. Jas. P. Brown, Clerk. By 
J. S. Manley, Deputy. Robert T. Devlin, U. S. 
Atty. 

The demurrer of the Government to defendant's 
plea of misnomer came on regularly for hearing 
on the 28th day of April, 1905, and the same being 
argued and submitted and duly considered by the 
Court, it was ordered that said demurrer be over- 
ruled. 



The United States of America. 57 

Thereupon, on April 29, 1905, the district at- 
torney filed a motion to strike plea of misnomer 
from files, of which the following is a copy : 

In the District Court of the United States, in and 
for the Northern District of California. 

No. 4271. 

THE UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, Alias R. BROOKE STER- 
LING. 

Motion to Strike Plea of Misnomer from Files. 

Now comes Robert T. Devlin, United States at- 
torney, for the Northern District of California, 
and moves the Court to strike from the files the 
plea of misnomer heretofore filed by the defendant 
herein, upon the ground that said plea was not pre- 
sented to the Court at the proper time and that 
the right of said defendant to file said plea was 
waived by his previous motion to quash the indict- 
ment herein. 

(Sgd.) ROBT. T. DEVLIN, 

United States Attorney. 

[Endorsed]: Filed April 29th, 1905. Jas. P. 
Brown, Clerk. By J. S. Manley, Deputy Clerk. 
Robert T. Devlin, U. S. Atty. 



58 B. Brooks Lee vs. 

Thereafter, on the 2d day of May, 1905, the 
Government's motion to strike the defendant's 
said plea of misnomer from files came on regularly 
to be heard by the Court, and the same having 
been argued and submitted and duly considered by 
the Court, it was by the Court ordered that said 
motion be sustained and granted; whereupon the 
defendant then and there duly excepted to the rul- 
ing of the Court thereon: 

Thereafter on May 2, 1905, the defendant de- 
murred to said indictment, of which said demurrer 
the following is a copy: 

In the United States District Court, in and for the 
Northern District of California. 

No. 4271. 

THE UNITED STATES OP AMERICA, 

Plaintiff, 
vs. 
B. BROOKS LEE, 

Defendant. 

Demurrer to Indictment. 

The defendant in the above-entitled action hav- 
ing heretofore made and filed his motion to quash 
and dismiss the indictment filed against him here- 
in, and said motion having come on regularly to 
be heard, and the Court having overruled said mo- 
tion, to which ruling the defendant has excepted, 



The United States of America, 59 

said defendant further appearing in said cause 
and without admitting any of the allegations set 
forth in said indictment, does hereby file this his 
demurrer to said indictment, and as grounds of de- 
murrer specifies: 

I. That said indictment does not state facts 
sufficient to constitute an offense. 

II. That said indictment does not state facts 
sufficient to constitute an offense under section 3893 
of the Revised Statutes of the United States, as 
amended by Act of Congress of September 26th, 
1888. 

III. That said indictment is multifarious, in 
this: it appears therefrom that said defendant is 
charged with the commission of two offenses under 
section 3893 of the Revised Statutes of the United 
States, as amended by Act of Congress September 
26, 1888; that said indictment consists of but one 
count and said two offenses are set forth in said 
one count, whereas said offenses should be separ- 
ately stated in separate counts, if at all. That is 
to say, there is a charge that the defendant in the 
manner specified in said indictment gave informa- 
tion, where and how, and of whom, and by what 
means divers articles and things designed and in- 
tended for the prevention of conception might be 
obtained, and also a charge that in the manner 
specified in said indictment the defendant gave in- 



60 B. Brooks Lee vs. 

formation where and how, and of whom, and by 
what means divers articles and things intended for 
the procuring of abortion might be obtained. 

IV. That said indictment is double and charges 
more than one offense without stating the same in 
separate counts, in this: 

1st. An offense of giving information in the 
manner alleged in the indictment where and how, 
and of whom, and by what means, divers articles 
and things designed and intended for the preven- 
tion of conception might be obtained, and 

2d. An offense for giving information in the 
manner alleged in said indictment where and how, 
and of whom, and by what means, divers articles 
and things designed and intended for the procur- 
ing of abortion might be obtained, 

V. That said indictment does not state facts 
sufficient to constitute the offense of giving inform- 
ation to the person therein named, or to any per- 
son, where and how, and of whom, and by what 
means divers articles and things designed and in- 
tended to prevent conception might be obtained, for 
said written letter does not contain any statement 
referring to any article or thing designed or in- 
tended to prevent conception or for the procuring 
of abortion. 

VI. Defendant further demurs to said indict- 
ment on the ground of duplicity, in that said in- 



The United States of America. 61 

dictment charges in one count two distinct offenses 
under section 3893 of the Revised Statutes of the 
United States, as amended by Act of Congress, 
September 26, 1888. 

VII. That said indictment is uncertain, in this: 
that it states that said written letter, alleged to have 
been deposited by the defendant in the postoffice 
establishment of the United States gave informa- 
tion where and how, and of whom, and by what 
means, divers articles and things designed and in- 
tended for the prevention of conception or for the 
procuring of abortion might be obtained, but it 
fails to state what articles or things for such pur- 
pose might be obtained; and said alleged offenses 
are not charged with precision and certainty in not 
showing what the articles or things were, or how 
or in what manner the same were to be used, nor 
does it allege that the defendant intended the same 
to be used for either of the purposes alleged. 

VIII. The said indictment is ambiguous, in 
this: that it fails to state what articles or things 
were to be furnished or used, or the manner of their 
use, in order to accomplish either the prevention 
of conception or the procuring of abortion. 

IX. That the said indictment is void and in- 
sufficient in point of law, in this: That said in- 
dictment does not contain any subject matter, or 

the copy or description of any letter alleged to have 



62 B. Brooks Lee vs. 

been deposited in the postoffice establishment of 
the United States by the defendant, giving any in- 
formation where, or from whom, the said contra- 
band articles and things therein mentioned, could 
be obtained or made, but that the copy of the letter 
alleged to have been deposited in the postoffice es- 
tablishment of the United States by said defend- 
ant, as alleged in said indictment, contains no sub- 
ject matter in violation of the laws or postal regula- 
tions of the United States, or of the section of the 
Revised Statutes of the United States, hereinabove 
particularly referred to, and purports to be an 
answer to a letter allege to have been written by the 
defendant to the person therein mentioned, but that 
no copy of said original letter constituting the real 
basis of said indictment and said charge, and to 
which the letter set forth in said indictment alleged 
to have been so deposited by said defendant, is an 
answer, is contained or described in, or in any 
manner made a part of, said indictment, as by law 
required. 

Wherefore, defendant asks that this demurrer be 
sustained and the indictment dismissed. 

LOUIS P. BOARDMAN, 
Attorney for Defendant. 

[Endorsed]: No. 4271. United States of Am- 
erica, Plaintiff, vs. B. Brooks Lee, Defendant. De- 



The United States of America, 63 

murrer to Indictment. Filed May 2d, 1905. Jas. 
P. Brown, Clerk. By J. S. Manley, Deputy Clerk. 

On the 2d day of May, 1905, the Court made an 
order overruling the demurrer of the defendant to 
the indictment. To which ruling the defendant 
then and there duly excepted. 

On the 2d day of May, 1905, the defendant 
stood mute relying upon his plea of misnomer, and 
the Court entered the plea of not guilty to said in- 
dictment. 

On the 15th day of May, 1905, this case came on 
for trial. Present: Benjamin L. McKinley, Esq., 
Assistant United States District Attorney, appear- 
ing for the Government, and Louis P. Boardman, 
appearing as attorney for said defendant; and the 
following took place: 

This cause now came on for trial in^its regular 
order upon the calendar and twelve talesmen were 
called into the box and examined upon their voir 
dire. 

Exceptions were taken by the counsel for the de- 
fendant as follows : 

In the course of the examination of talesman C. 
A. Thayer the following occurred: 

Mr. BOARDMAN.— Q. Do you know anything 
about this case at all? A. I do not. 

Q. Have you acted heretofore as a juror in this 
court in the trial of any of these other cases? 



64 B. Brooks Lee vs. 

A. Yes, sir. 

Q. Whose case? A. Dr. Sylvester's. 

Q. That is the only one ? 

A. That is the only one. 

Q. Have you any feeling, one way or the other, 
regarding the guilt or innocence of the defendant 
here? A. I have not. 

Q. You have not any feeling of hostility against 
the defendant simply because he has been put in a 
similar position to these other defendants on this 
charge? A. I don't think I have. 

Q. Do you know whether you have or not? 

A. I have not any prejudice. 

Q. You are sure that your mind is perfectly 
free in regard to the matter? 

A. I think so. 

Q. Don't you feel a little bit biased or a little 
bit — 

The COURT. (Interrupting). — I think you have 
pursued that examination far enough, Mr. Board- 
man. It is a self-evident fact that no mind would 
have been prejudiced against this defendant simply 
because somebdy else has been charged with a simi- 
lar offense. 

Mr. BOARDMAN. — I cannot agree with your 
Honor on that. 



The United States of America. 65 

The COURT. — It is barely possible there may be 
a man who has that mind, but when you ask him 
whether he is in that condition of mind he says he 
is not. 

Mr. BOARDMAN. — He seems to have a hesitat- 
ing doubt. 

The COURT. — He says he has no prejudice or 
feeling. He said also he would be willing, if he 
were on trial, to be tried by twelve men in the 
same state of mind that he is in. That is the su- 
preme test to be put to a juror for the purpose 
of developing his state of mind. 

Mr. BOARDMAN. — I do not suppose anyone is 
interested in holding any one of the jurors. 

The COURT. — I am simply interested in having 
the trial concluded, that is all. I do not think the 
jurymen should be harassed by questions unless it 
has some tendency to benefit the defendant. 

Mr. BOARDMAN.— I note an exception to the 
observations and ruling of the Court. 

Q. Have you any feeling of hostility towards the 
defendant? A. Not any. 

Q. You think you can give him a perfectly fair 
trial? A. Yes, sir. 

The COURT.— It is not necessary to open your 
case, Mr. McKinley. 



66 B. Brooks Lee vs. 

Mr. BOARDMAN.— I should like to ask your 
Honor if you rule we are entitled to only three per- 
emptory, challenges in this case ? 

The COURT. — It is not necessary to rule on that 
now because the jury has been sworn to try the 
case. 

Mr. BOARDMAN.— Your Honor made that di- 
rection before I had an opportunity to consider it. 

The COURT. — I will state to you for your in- 
formation that this is all the defendant is entitled 
to in this class of case. It is not a felony. It is a 
misdemeanor. 

Mr. BOARDMAN.— I did not so understand it, 
and I want the benefit of an exception if there is 
such a ruling made here now. 

Te COURT. — You are a little late for your excep- 
tion now. 

Mr. BOARDMAN.— Let the record show it. 

Mr. McKINLEY. — I will adopt your Honor's sug- 
gestion and not take time to state the case. 

I. 0. DODGE, called for the United States, sworn. 

Mr. McKINLEY.— Q. Mr. Dodge, you reside in 
Goshen, Indiana? 

A. Yes, sir. 

Q. You are the Secretary of the National League 
for the Prevention of Vice? A. Yes, sir. 



The United States of America. 67 

(Testimony of I. O. Dodge.) 

Q. You have been such for seven or eight years, 
I understand? A. Yes, sir. 

Q. Did you have any correspondence through 
the United States postoffice establishment with Dr. 
R. Brooke Sterling, address 1140 Market Street, San 
Francisco? A. I did. 

Q. I show you what purports to be a carbon copy 
of a letter, and ask you whether you sent the orig- 
inal of that through the postoffice establishment to 
one Dr. R. Brooke Sterling at the address I have 
already mentioned (handing) ? A. I did. 

Q. You sent the original? A. Yes, sir. 

Q. I show you a letter — 

Mr. BOARDMAN.— Are you going to offer it all 
at once? 

Mr. McKINLEY.— No, I will offer it separately. 

Mr. BOARDMAN.— I should like to look at it, 
then. 

Mr. McKINLEY.— Certainly (handing). 

Mr. BOARDMAN.— Do you offer it now? 

Mr. McKINLEY.— Yes. 

Mr. BOARDMAN.— I object to that letter as in- 
competent, irrelevant, immaterial, no proper founda- 
tion is laid for its introduction, it is not referred to 



68 B. Brooks Lee vs. 

(Testimony of I. O. Dodge.) 

in the indictment, and is in no way connected with 
the defendant. 

The COURT.— Do you propose to show that the 
letter set out in the indictment is a reply to that? 

Mr. McKINLEY.— Yes. 

The COURT.— I overrule the objection. 

Mr. BOARDMAN.— I will take an exception. 
(The letter is marked "T7. S. Exhibit No. 1.") 

Mr. McKINLEY.— Q. I show you now, Mr. 
Dodge, an envelope addressed "Miss Jennie Mere- 
dith," containing a letter enclosed, the envelope be- 
ing stamped with a postage stamp, and duly post- 
marked, and ask you if you received that envelope 
with its enclosure through the postoffice establish- 
ment, in reply to the one, a copy of which you have 
just identified? 

Mr. BOARDMAN.— I object to the question as 
leading, and as a compound question, and as argu- 
mentative, and is not a proper line of examination. 

The COURT.— I overrule the objection. 

Mr. BOARDMAN. — I will take an exception. 
A. I did. I received this. 

Mr. McKINLEY. — In the manner in which I have 
stated — through the postoffice? 



The United States of America. 69 

(Testimony of I. O. Dodge.) 

A. Through the mails. 

Mr. McKINLEY.— I now offer that. 

Mr. BOARDMAN. — I object to the introduction 
of this letter and envelope and each of them at this 
time upon the same grounds as the objection stated 
to the other letter which was just admitted in evi- 
dence by the Court, and on the further ground that 
it is in no wise relevant to the issue made by the 
indictment, and no foundation laid for its introduc- 
tion. 

The COURT.— Is that the letter set out in the 
indictment? 

Mr. McKINLEY.— Yes. 

The COURT.— I overrule the objection. 

Mr. BOARDMAN. — I will take an exception. 
(The letter is marked "U. S. Exhibit No. 2.") 

Mr. McKINLEY.— At this time I will read the 
letters admitted in evidence. This letter which was 
admitted as "U. S. Exhibit No. 1" is as follows: 

Goshen, Ind. Jan. 2, '05. 
Dr. E. Brooke Sterling, 1140 Market St. San Fran- 
cisco. 
Dear Doctor: Your advertisement in the Chronicle 
appeals to me just now as I cannot come there, do 



70 B. Brooks Lee vs. 

(Testimony of I. O. Dodge.) 

you send a medicine or anything that will relieve 
a woman so she wont have a child if she is only 
about 2y 2 months pregnant — If you do what does 
it cost and may I hear from you quick — 

Address 

JENNIE MEREDITH, 
R. R. 8 Goshen Ind. 

The reply is as follows : 
Telephone South 946. 

Office Hours 10 A. M. to 12 M. 
2 to 5 and 7 to 8 P. M. 
R. BROOKE STERLING, M. D. 
Specialist for Diseases of Women, 
1140 Market Street. 

San Francisco, Jan. 9th, 1905. 
Jennie Meredith, R. R. 8 Goshen, Ind. 

Dear Miss: — In answer to yours of the 2nd inst. 
will say that upon receipt of Ten ($10.00) Dollars 
from you, I will send per express necessary treat- 
ment with full instructions. 

Respectfully, 
R. BROOKE STERLING, M. D. 

pr. L. 

(Envelope): "R. B. Sterling, Return to 997 Mar- 
ket Street, San Francisco. Miss Jennie Meredith, 
Goshen, Ind. R. R. 8." 






The United States of America. 71 

(Testimony of I. O. Dodge.) 

Q. That is the only communication you had, Mr. 
Dodge? A. Yes, sir. 

Cross-examination. 

Mr. BOARDMAN.— Q. You reside in Goshen, 
Indiana? 

A. Yes, sir. 

Q. You are Secretary of the National League for 
the Prevention of Vice? A. Yes, sir. 

Q. How long have you been acting in that capac- 
ity? A. About eight years. 

Q. In any other business? 

A. No regular business. I sometimes sell books 
at times when I am not busy at this. 

Q. Are you paid a salary by the League? 

A. No stated salary. 

Q. You are not connected with the postoffice de- 
partment, are you? A. No, sir. 

Q. You state that you wrote the original of the 
letter which has been introduced here and signed 
"Cora Dillingham,' ' is that the name, or "Jennie 
Meredith"? 

The COURT.— "Jennie Meredith." 

Mr. BOARDMAN.— Q. You signed that name, 
didn't you? 
A. Yes, sir. 



72 B. Brooks Lee vs. 

(Testimony of I. O. Dodge.) 

Q. Is there any such person at that place or else- 
where, to your knowledge, by that name? 

Mr. McKINLEY.— Objected to as wholly irrele- 
vant and immaterial. 

The COURT.— I overrule the objection. 

Mr. BOARDMAN.— Q. Please answer, Mr. 
Dodge. 

A. No, sir, there is no such person. 
Q. You do not know Jennie Meredith? 
A. No, sir, there is no such person. 

Q. You knew that when you wrote the letter, 
did you not? A. Yes, sir. 

Q. What prompted you to write this letter, Mr. 
Dodge? 

A. An advertisement in one of the San Fran- 
cisco papers, I don't remember which; I think it 
is stated on the back. It was brought to my notice. 

Q. When was that brought to your notice? 

A. Some time in December or January last. 

Q. Do you know when that advertisement ap- 
peared in the paper? 

A. I don't remember. I think it is noted with 
the advertisement there. I could tell if I saw it. 

Q. Could you state by reference to the paper 
which you mentioned? A. I think I could. 



The United States of America. 73 

(Testimony of I. O. Dodge.) 

Mr. BOARDMAN.— Will you show it to him, Mr. 
McKinley? 

Mr. McKINLEY.— Certainly. 

Q. Is that the advertisement which you saw, Mr. 
Dodge (handing)'? A. Yes, sir. 

Q. And the one in answer to which you sent that 
letter? 

Mr. BOARDMAN.— That is all, Mr. McKinley. 
That is my examination. 

The COURT. — Let the counsel proceed. 

Mr. BOARDMAN.— Q. How did you get that ad- 
vertisement? 

A. It was sent to me by Postoffice Inspector 
O'Connell, of this city. 

Q. Do you know in what paper it appeared? 

A. I do not, further than the statement on the 
slip he sent me. 

Q. You do not know when it appeared beyond 
that information? A. No, sir. 

Q. Now, in this letter, you say "your advertise- 
ment in the Chronicle appeals to me just now." 
Was that statement true, or was it false? 

Mr. McKINLEY.— I object to the question as 
wholly immaterial. 



74 B. Brooks Lee vs. 

(Testimony of I. O. Dodge.) 

The COURT. — I will sustain the objection upon 
this ground: That the witness has already stated 
that he signed the name " Jennie Meredith" to the 
letter. So far as he knows, there is no such per- 
son living. It was purely a fictitious person — a ficti- 
tious name adopted by him, and that being so, why, 
it naturally follows that it cannot be true that Jen- 
nie Meredith was in the state of pregnancy, and 
everything in the letter about Jennie Meredith is 
false and not true. That is apparent. 

Mr. BOARDMAN — I wanted him to say so. 

Q. How many of these kinds of letters have you 
written in your experience as secretary of this in- 
stitution for the prevention of vice? 

Mr. McKINLEY. — I object to the question as im- 
material and irrelevant. 

I will allow that question to be answered. He 
may state generally. He probably may not be able 
to state the exact number. 

Mr. BOARDMAN.— Approximately— that is all I 
want to know, to see how it works. 

A. How many have I written — is that the ques- 
tion? 

Q. Yes, about how many. Cannot you take a 
guess at it? 



The United States of America. 75 

(Testimony of I. O. Dodge.) 

The COURT. — If you can state approximately 
whether you have written many or a few, do so. 

A. I cannot say how many I have written; per- 
haps three hundred, more or less. 

Mr. BOARDMAN.— Q. Sent them all over the 
country, did you'? 

The COURT.— That is not material. 

Mr. BOARDMAN. — There is no objection to it. 

Mr. McKINLEY. — I object to the general line 
of questions. I do not think it has anything to do 
with this case whether he wrote five thousand. 

Mr. BOARDMAN.— That is your opinion. Note 
an exception. 

Q. Do you know Dr. Lee ? A. I do not. 

Q. Do you know who wrote this letter here that 
you received? A. No, sir. 

Q. You do not know who wrote it? 

A. No, sir. 

Q. You simply know that you got it through the 
mail? 

A. That I received it through the mail. 

Q. After you received this letter, what did you 
do with it? 

A. Sent it to the Chief Postoffice Inspector at 
Washington, I believe. I do not remember whether 



76 B. Brooks Lee vs. 

(Testimony of I. O. Dodge.) 

I sent it to him, or to Mr. O'Connell here in San 
Francisco. 

Q. Did you have anything to do with this case 
after that? 

A. I do not know whether I wrote any further 
letters of that kind to the doctor or not. I could 
not tell without reference. 

Q. I did not ask you about that. I said what 
did you do regarding this case after you received this 
letter? 

A. I sent it to some postoffice officer. 

Q. Did you have anything to do with the subse- 
quent proceedings, indictment, or arrest of this al- 
leged defendant, Dr. Lee? 

A. I was here before the Grand Jury. 

Q. You were? A. Yes, sir. 

Q. You submitted your evidence, did you, in re- 
gard to this matter to the Grand Jury? 

A. I did. 

Q. Did you at that time have any reason to be- 
lieve that this defendant was the person who wrote 
the letter or against whom you were aiming your 
efforts? 

Mr. McKINLEY. — Objected to as incompetent. 

The COURT.— I sustain the objection. The wit- 
ness testified he did not know who wrote the letter; 
that all he knows is that he received that letter. 



The United States of America, 11 

(Testimony of I. O. Dodge.) 

Mr. BOARDMAN.— I will take an exception. I 
want to get at his good faith, to see how much he 
must be informed before he is before the Grand Jury. 
I want to see how careful he is about carrying people 
into court by indictment. 

Mr. McKINLEY. — I objected to counsel arguing 
his case before the jury. 

The COURT. — The objection has been sustained. 
Proceed with the witness. 

Mr. BOARDMAN.— I will take an exception. 
Q. What did you do after you appeared before 
the Grand Jury regarding this case, if anything? 

Mr. McKINLEY.— The same objection. 

The COURT. — I will overrule the objection. He 
may prove that he employed counsel to prosecute 
the case. 

Mr. McKINLEY. — I withdraw the objection. 
A. I did nothing further. 

Mr. BOARDMAN.— Q. Nothing more until you 
came here to give your testimony'? 
A. No, sir. 
Q. Do you get any money out of these cases? 

Mr. McKINLEY. — Objected to as immaterial, ir- 
relevant and incompetent. 



78 B. Brooks Lee vs. 

(Testimony of I. O. Dodge.) 

The COURT.— I overrule the objection. 
A. Nothing more than an ordinary witness in any 
case. 

Mr. BOARDMAN — Q. You do not get any pre- 
mium on conviction? 

A. No, sir. 

Q. Except your own satisfaction, I suppose. 
You get no monetary consideration? 

A. No, sir. 

Q. Who pays your expenses from Goshen, In- 
diana? A. I do. 

Q. You confess that you are considerably in the 
dark as to the identity of the defendant in this case ? 

Mr. McKINLEY.— I object to the question on the 
ground that a similar question has been answered 
half a dozen times. 

The COURT.— The objection is sustained. The 
witness has already testified that he does not know 
that the defendant wrote that letter. 

Mr. BOARDMAN.— I will take an exception. 

Redirect Examination. 

Mr. McKINLEY. — Q. You came here under a 
regular subpoena to appear before the Grand Jury 
and also to appear in this case ? 

A. I did. 



The United States of America. 79 

Mr. BOARDMAN.— I object to that. 

The COURT.— I overrule the objection. 

Mr. BOARDMAN.— I will take an exception. 

Mr. McKINLEY.— Counsel has called for this ad- 
vertisement, and I offer it in evidence as part of 
the Government's case. 

Mr. BOARDMAN. — Objected to as not proper re- 
direct examination. Let it go in. We do not ob- 
ject. It does not concern us at all. 

Said advertisement was and is as follows : 
"Dr. R. Brooke Sterling. 1140 Market St. 
Old and Reliable Specialist for Women. 

Thirty Years' experience in the treatment of dis- 
eases of women exclusively, without a single fail- 
ure or unpleasant result. Dr. Sterling offers his 
services and waits for his fee until the promised 
results are accomplished. It will cost you nothing 
to have a talk with the Doctor and may save you 
many hours of suffering and many dollars uselessly 
spent. I am a regularly qualified physician, devot- 
ing my time exclusively to the treatment of female 
diseases of every character, and you can rest as- 
sured of courteous attention and desired results if 
you will consult me. I positively guarantee imme- 
diate results, and only one visit is necessary. No 
humiliating examinations or injurious drugs. A 



80 B. Brooks Lee vs. 

(Testimony of Pierre J. Whelan.) 

private sanitarium is connected with office, which 
is private and devoted exclusively to ladies. My 
large practice enables me to charge moderate fees, 
seldom exceeding $10. If you cannot call, write; all 
correspondence sacredly confidential. Office hours 
10 A. M. until 8 P.M.; Sunday 10 to 12 only. 

Dr. R. Brooke Sterling, 1140 Market." 

PIERRE J. WHELAN, called for the United 
States, sworn. 

Mr. McKINLEY.— Q. Do you reside in San 

Francisco ? 

A. Yes, sir. 

Q. And you are a letter-carrier, are you not, em- 
ployed in the postoffice establishment of the United 
States at San Francisco? A. Yes, sir. 

Q. How long have you been employed as a letter- 
carrier? A. About twenty years. 

Q. Do you know this defendant here? 

A. Yes, sir. 

Q. Are you the carrier who has been carrying 
the route embracing his office or place of business? 

A. I did carry mail. 

Mr. BOARDMAN. — I object to that as being too 
indefinite. 

The COURT.— I overrule the objection. 



The United States of America. 81 

(Testimony of Pierre J. Whelan.) 

Mr. BOARD MAN. — I will take an exception. 
A. (Continuing.) I carried mail to 1140 Mar- 
ket Street for the gentleman. 

Mr. McKINLEY.— Q. He was at 1140 Market 
Street? 

A. Yes, sir. 

Q. How long ago did he cease to be at 1140 Mar- 
ket Street? 

Mr. BOARDMAN.— I object to that as being very 
leading. 

The COURT. — I overrule the objection. 

Mr. BOARDMAN. — I will take an exception. 

The COURT. — Of course, if you come directly to 
the point and find out whether this defendant was at 
this place at the date of that letter, it would be bet- 
ter. 

Mr. McKINLEY.— All right, I will do that. 

A. He has been away from my district about six 
or seven months — about that time. 

Q. By what name did you know him when he 
was at 1140 Market Street? 

Mr. BOARDMAN.— What did you say? 
A. He w r as away from my district about six or 
seven months. 
Q. Off your line? 



82 B. Brooks Lee vs. 

(Testimony of Pierre J. Whelan.) 
A. Yes, sir. 

Mr. McKINLEY.— Q. By what name did you 
know him at 1140 Market Street? 

A. B. B. Lee and Brooke Sterling. 

Q. Did you ever know him as R. Brooke Ster- 
ling? A. Yes, sir. 

Q. He was R. Brooke Sterling at 1140 Market 
Street? A. Yes, sir. 

Q. And mail for R. Brooke Sterling was de- 
livered at 1140 Market Street by you ? 

A. Yes, sir. 

Mr. BOARDMAN. — I cannot hear your answers 
at all, and I object to the question as being leading 
and suggestive. 

The COURT. — The objection will be overruled. 
Mr. BOARDMAN.— I will take an exception. 

Mr. McKINLEY.— Q. I show you what pur- 
ports to be an order for a change of address or for- 
warding, dated the 23d day of December, 1904, and 
signed "B. B. Lee," and ask you whether or not 
that was furnished you by this defendant at the 
time of his change of address from 1140 Market 
Street to another place (handing) ? 

A. I cannot recollect it being handed to me, but 
to the best of my knowledge that is his signature. 



The United States of America. 83 

(Testimony of Pierre J. Whelan.) 

Mr. BOARDMAN.— I object to that. If he does 
not know anything about it he cannot testify. 

Mr. McKINLEY — Q. You are familiar with 
the signature of the defendant? 

A. To the best of my knowledge, yes. 

Q. You have seen him sign his name ? 

A. Yes, sir. 

Q. On different occasions? A. Yes, sir. 

Q. I call your attention now to the signature 
at the bottom of "TT. S. Exhibit No. 2," the brown 
colored letter, "R. Brooke Sterling, M. D., per L.," 
and ask you to state, from your familiarity with 
his signature, as to whether or not that is the hand- 
writing and signature of this defendant? 

A. To the best of my knowledge, yes. 

Mr. BOARDMAN.— I object to that and move to 
strike it out. 

The COURT.— The motion will be denied. 

Mr. BOARDMAN.— I will take an exception. 

Cross-examin ation. 

Mr. BOARDMAN.— Q. How long have you 
known Dr. Lee? 

A. I should say in the neighborhood of about 
two years. 



84 B. Brooks Lee vs. 

(Testimony of Pierre J. Whelan.) 

Q. You were delivering letters to 1140 Market 
Street at what time last — up to what time were you 
delivering letters at 1140 Market Street? 

A. I delivered letters at 1140 Market Street 
last Saturday. 

Q. Were you delivering letters as mail carrier 
at 1140 Market Street in January, 1905? 

A. Yes, sir. 

Q. Did you deliver any letters to Dr. Lee at 1140 
Market Street in January of this year? 

A. No, sir, not to my knowledge, because for 
the simple reason that if a letter came addressed to 
Dr. Lee at 1140 Market Street I have the order on 
file to forward it from 1140 Market Street to 997 
Market Street — room 108, I think it is. 

Q. Did you ever know Dr. Lee as Dr. Sterling? 

A. Yes, sir. 

Q. How and where? 

A. Because he told me so himself. 

Q. When? 

A. Upstairs at 1140 Market Street. 

Q. At 1140 Market Street? A. Yes, sir. 

Q. Do you know about when? A. No, sir. 

Q. Could you say whether or not it was this 
year? 

A. He has not been at 1140 Market Street this 
year. 






The United States of America. 85 

(Testimony of Pierre J. Whelan.) 

Q. So it must have been prior to the first day 
of January of this year? A. Yes, sir. 

Q. Did you know him by any other name ? 

A. B. B. Lee. 

Q. Any other names besides that? 

A. No, sir, not that I know of. At that time 
there were a half a dozen people having their mail 
addressed to 1140 Market Street. 

Q. Who did you deliver the mail to at 1140 
Market Street? 

A. Dr. Talcott, Frank Laury, W. E. Raymond, 
R. Brooke Sterling, B. B. Lee, and at that time 
the change of address came. 

Q. I did not ask you about that. 

Mr. McKINLEY. — I insist upon his finishing. 

Mr. BOARDMAN. — It was not responsive. 

Mr. McKINLEY.— Go on. 

A. (Continuing) At that time there was some 
trouble came up, I believe. 

Mr. BOARDMAN. — I take an exception to the 
District Attorney interfering. 

The COURT.— The objection will be sustained. 
One counsel at a time. 

Mr. BOARDMAN.— You are satisfied that you 
delivered no letter to Dr. Lee at 1140 Market Street 
in the month of January of this year? 



86 B. Brooks Lee vs. 

(Testimony of Pierre J. Whelan.) 

A. Not to my knowledge or belief. 

Q. How much of the writing of Dr. Lee have 
you seen? 

(A recess was here taken until 2 o'clock P. M.) 
Cross-examination Resumed. 

Mr. BOARDMAN.— At the time of the adjourn- 
ment, I think I called your attention to a letter 
here. Can you say that you are familiar with the 
handwriting of Dr. Lee ? A. I did not say so. 

Q. You cannot say that? 

A. I know his signature. 

Q. You have seen his signature? 

A. Yes, sir. 

Q. Have you ever seen any of his writing ex- 
cept his signature which appeared upon the re- 
ceipt cards through the mail which you handled 
from time to time? 

A. Not to my knowledge, outside of my register 
book, that is all. 

Q. Nothing appeared in your register book ex- 
cept his signature? A. That is all. 

Q. How did he sign those cards, Mr. Whelan? 

A. In indelible pencil. 

Q. In what name? A. B. B. Lee. 

Q. Now, in looking, you do not find "B. B. 
Lee" on that letter anywhere, do you (handing "U. 
S. Exhibit No. 2" to the witness)? 



The United States of America. 87 

(Testimony of Pierre J. Whelan.) 

A. No. sir. 

Q. How had you any informtaion or belief upon 
which you can base any statement that Dr. Lee 
wrote that letter or that it is his handwriting? 

A. I stated that, to the best of my knowledge 
and belief, I thought that was his handwriting. 

Q. Have you any knowledge and belief about 
the matter? 

A. I have got his signature on my person now. 
Q. Will you please pull it out and compare it. 
Maybe that will help you out in your recollection 
and belief. 

A. Yes, sir, the "L" is the same in his signature. 
Q. Never mind about that. Just one letter, you 
say? A. Yes, sir. 

Q. Can I look at it? 
A. Yes, sir (handing book to counsel). 
Q. Is that the basis of your knowledge and be- 
lief? A. No, sir. 

Q. What is the basis of your knowledge and 

belief? 

A. As far as that signature is concerned, that 
is the basis of my knowledge and belief. 

Q. You have not any other information ex- 
cept what you have given here from which to give 
an opinion as to who wrote that letter, or whether 
it is Dr. Lee's handwriting? 



88 B. Brooks Lee vs. 

(Testimony of Pierre J. Whelan.) 

A. I could not swear that that man wrote that 
letter. 

Q. You would not attempt to do it on your 
knowledge and belief ? 

A. No, sir, only according to that "Per L." I 
take that "L" as his writing. 

Q. You just guess at it. (Addressing the 
Court.) I move to strike out the testimony of 
the witness in which he states that, to the best of 
his knowledge and belief, that is Dr. Lee's hand- 
writing; his knowledge and belief now being before 
the Court, it is merely an opinion, which is not 
competent. 

The COURT.— I think that the motion is well 
taken. 

Mr. McKINLEY. — I should like to ask a ques- 
tion before the motion is disposed of. 

The COURT. — I do not think it would make any 
difference. The witness says that all he knows is 
the signature "B. B. Lee." 

Mr. McKINLEY.— I only asked him about the 
signature. 

The COURT. — There is no such signature there, 
and he is not an expert. I am satisfied that a man 



The United States of America. 89 

(Testimony of Pierre J. Whelan.) 

does not know the signature of R. Brooke Sterling 
and is not an expert, has no right to give his opinion. 

Mr. McKINLEY.— Inasmuch— 

The COURT. — There is no use in arguing it. 

Mr. McKINLEY. — Inasmuch as counsel has re- 
ferred to that book, may I offer that book in evi- 
dence? I should like the jury to examine it if the 
counsel is not satisfied with it. 

Mr. BOARDMAN. — You can introduce it. 

The COURT. — That is not competent evidence. 

Mr. McKINLEY. — It was brought out by coun- 
sel on the other side. I did not attempt to do it. 

The COURT. — This man's testimony goes out. 

Mr. McKINLEY. — If your Honor strikes it out, 
I have no recourse. I ask that it be permitted to 
remain. 

The COURT.— I am satisfied that it is not com- 
petent. 

W. P. SCUDDER, called for the United States, 
sworn. 

Mr. McKINLEY.— Q. You reside in San Fran- 
cisco? A. I do. 



90 B. Brooks Lee vs. 

(Testimony of W. F. Scudder.) 

Q. You are a letter-carrier employed in the post- 
office establishment of the United States at San 
Francisco? A. Yes, sir. 

Q. How long have you been such letter carrier? 

A. About 14 years. 

Q. Do you know this defendant? 

A. Yes, sir. 

Q. Under what name do you know him? 

A. Dr. B. Brooks Lee. 

Q. Do you know him under the name of R. 
Brooke Sterling? 

Mr. BOARDMAN.— Objected to as leading. 

The COURT. — I overrule the objection. 

Mr. BOARDMAN. — I will take an exception. 
A. To the best of my knowledge, I do, yes. 

Mr. BOARDMAN. — I object, and move to strike 
it out as not responsive to the question, and no 
proper foundation having been laid. 

The COURT.— The motion is denied. 

Mr. BOARDMAN.— I will take an exception. 

Mr. McKINLEY. — Q. Does your route cover the 
premises at 997 Market Street in this city? 
A. Yes, sir. 

Q. Whose office is that or place of business? 
A. It is an office building. 



The United States of America. 91 

(Testimony of W. F. Scudder.) 

Q. Is that the office building occupied by the de- 
fendant? A. Yes, sir, he has an office there. 

Q. Now let me ask you this question: Do you 
deliver mail matter addressed to R. Brooke Ster- 
ling at the defendant's office? A. Yes, sir. 

Q. Do you know a Dr. R. Brooke Sterling other 
than the defendant? A. No, sir. 

Q. You do not? A. No, sir. 

Q. He is the occupant of that office, is he? 

Mr. BOARDMAN.— Objected to as leading. All 
these questions are leading. 

The COURT.— I overrule the objection. 

Mr. BOARDMAN. — I will take an exception. 
A. Yes sir. 

Mr. McKINLEY.— Q. And all letters addressed 
to Dr. R. Brooke Sterling are delivered by you in 
due course of mail at the office of this defendant? 

A. Yes, sir. 

Mr. BOARDMAN. — I object to the question as 
leading, and no proper foundation having been 
laid. 

The COURT.— I overrule the objection. 
Mr. BOARDMAN.— I will take an exception. 



92 B. Brooks Lee vs. 

(Testimony of W. P. Scudder.) 

Mr. McKINLBT-Before the cross-examination 
commences, I would like to ask, I do not under- 
stand your Honor struck out the entire testimony 
of the last witness ? 

The COURT.— Only that portion where he gives 
his opinion that that signature was written by this 
defendant. 

Mr. McKINLEY.— I do not want to have any 
question arise about that. The other testimony he 
gave is still in the record. 

The COURT. — Yes, everything except the ex- 
pression of his opinion in regard to that signature. 

Mr. McKINLEY. — Very well, so that that may 
be understood. 

Cross-examination. 

Mr. BOARDMAN. — Q. You are a mail carrier? 

A. Yes, sir. 

Q. How long have you been such? 

A. About 14 years. 

Q. How long have you been on this particular 
route ? 

A. Three years on the first of the coming July. 

Q. What side of Market Street, or what portion 
of Market Street, does your route embrace? 



The United States of America. 93 

(Testimony of W. F. Scudder.) 

A. The nine hundred odd block of Market 
Street, between 5th and 6th Streets. 

Q. How long have you been delivering mail 
there? A. Three years the first of July. 

Q. You have delivered certain mail addressed 
to Dr. Sterling, you say? A. Yes, sir. 

Q. At 997 Market Street? A. Yes, sir. 

Q. Did you ever deliver any mail to the defend- 
ant here, Dr. Lee, under that name ? 
A. To him personally? 
Q. Yes. 

A. No, sir. As a rule, Dr. Lee is not in his 
office, and all his mail is delivered in his visiting 
room that is for the public. 

Q. Did you ever deliver any mail or letters ad- 
dressed to Dr. Sterling to Dr. Lee personally? 
A. To him personally? 
Q. Yes. 

A. I could not answer that question, because, 
handling so much mail matter every day, I have 
handed mail to Dr. Lee personally, but I could not re- 
member now what name was on it. There was no 
occasion to remember it. 

Q. You deliver all mail addressed to Dr. B. 
Brooks Lee at 997 Market Street, do you? 
A. Yes, sir. 



94 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 

Q. Do you have anything to do with the mail 
delivered at 1140 Market Street? A. No, sir. 

Q. You do not know anything about that? 

A. No, sir. 

Q. How long have you been, if you can state, 
delivering mail addressed to Dr. R. Brooke Sterling 
at 997 Market Street? 

A. I know the entry in my order book — we have 
an order book in which we enter all removal or- 
ders, and my entry for Dr. Sterling's and Dr. Lee's 
mail to be forwarded from 1140 to 997 was on the 
19th of December, 1904. 

Mr. McKINLEY.— That is the case for the Gov- 
ernment. 

Dr. B. B. LEE, the defendant, sworn. 

Mr. BOARDMAN.— Q. What is your name? 
A. Benjamin Brooks Lee. 
Q. Where were you born ? 
A. South Carolina. 

Q. How long have you lived in San Francisco? 
A. Twenty-two years. 

Q. What is your business, Doctor, and what has 
been your business for the last 22 years? 
A. Physician and surgeon. 

Q. Are you a graduated physician and surgeon? 
A. I am. 



The United States of America. 95 

(Testimony of Dr. B. B. Lee.) 

Q. From what college? 

A. The Medical College of the State of South 
Carolina. 

Q. Are you a registered and licensed physician 
under the laws of the State of California? 

A. I am. 

Q. Are you a member of the State Medical 
Society? A. No, sir. 

Mr. McKINLEY. — I object to that as immaterial, 
what society he is a member of. 

The COUET.— He says he is not. 

Mr. BOARDMAN. — Q. Are you a member of 
the local medical society of San Francisco ? 

A. No, sir. 

Mr. McKINLEY. — I do not think that is material 
either. 

Mr. BOARDMAN. — Q. During the course of 
your residence and business in San Francisco have 
you at all times practiced your profession ? 

A. The majority of the time, yes. 

Q. What is the nature of your business, particu- 
larly speaking — what branch of the profession, if 
any, do you follow? 

A. Venereal troubles, principally. 

Q. Do you consider yourself an expert in that 
line? A. I do. 



96 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 
Mr. McKINLEY.— I do not think that is material. 
The COURT.— The objection is sustained. 

Mr. BOARDMAN.— I will take an exception. 

Q. During the latter part of the year 1904, 
Doctor, where was your place of business — last year? 

A. I had no place of business. 

Q. Were you employed by anyone in your ca- 
pacity as physician and surgeon? A. I was. 

Q. At what place? 

A. At 1140 Market street. 

Q. By whom were you employed? 

A. Dr. Talcott & Co., an incorporation. 

Q. How long did you remain in such employ- 
ment? A. About six weeks. 

Q. Can you state now approximately when that 
was? 

A. About the first of October to the middle of 
December. 

Q. Did you have occasion at the latter date to 
change your place of business? A. I did. 

Q. And under what circumstances? 

Mr. McKINLEY.— I do not see that that is 
material. 

Mr. BOARDMAN.— It is part of your case. You 
are following this man across the street, or trying to. 

The COURT. — I will sustain the objection to that. 



The United States of America. 97 

(Testimony of Dr. B. B. Lee.) 

Mr. BOARDMAN.— I will take an exception. 

Q. Did you cease to be in the employ of the Dr. 
Talcott Company when you left their place at 1140 
Market street? 

A. No, sir, I remained there under another firm 
name for one week until Dr. Talcott sold his business 
out. 

Q. Did you become possessed of any part of the 
business of the Dr. Talcott Company at the time the 
doctor's company sold out? 

Mr. McKINLEY.— Objected to as immaterial. 

The COURT.— I sustain the objection. 

Mr. BOARDMAN.— I will take an exception. 

Q. Did you know a Dr. Sterling positively, or by 
reputation? 

Mr. McKINLEY. — Objected to as immaterial, un- 
less it is R. Brooke Sterling. 

The COURT. — The objection is sustained unless 
that is the particular person you are talking about. 

Mr. BOARDMAN.— That is the person I am in- 
quiring about. 

The COURT.— Then just ask him whether he 
knew R. Brooke Sterling. 

Mr. BOARDMAN.— We are not bound by the 
name that is included in this indictment. This is all 



98 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 

a matter of implication. There is no direct testi- 
mony here, as I understand it. 

Q. I will ask the question if you knew a Dr. 
Sterling? 

Mr. McKINLEY.— The same objection. 

The COURT. — I sustain it for the reason stated. 
If counsel desire to ask defendant whether he knows 
Dr. R. Brooke Sterling, he may ask that question. 

Mr. BOARDMAN.— I will take an exception. 

Q. Did you know, either personally or by reputa- 
tion, R. Brooke Sterling? 

A. I knew him by reputation. 

Q. Do you know where he did business or with 
whom he was connected during the year 1904, if at 
all? 

Mr. McKINLEY.— I object to that as plainly 
hearsay, inasmuch as the witness says he only knows 
him by reputation. 

The COURT. — The objection is sustained. 

Mr. BOARDMAN. — I will take an exception. 

Q. Do you know where the office of Dr. Sterling- 
was during the year 1904, particularly the latter 
part of it? 

Mr. McKINLEY.— The same objection, for the 
same reason. 



The United States of America. 99 

(Testimony of Dr. B. B. Lee.) 

The COURT.— The same ruling. 

Mr. BOARDMAN.— I will take an exception. 
Now, I would like to say this in respect to this phase 
of the case. Dr. Lee is charged with having done 
some act under the name of Dr. Sterling. There is 
no testimony at all before this Court that Dr. Lee 
did this act, or any part of it. We think it is per- 
fectly competent on our part to show this act may 
have been done, in fact was done, or present to the 
Court and to the jury a state of circumstances under 
which this act may have been done, to lay a founda- 
tion for the inference that the Doctor did not do it — 
that the other man did do it. 

The COURT.— You would be permitted to put Dr. 
Sterling on the stand, or you would be permitted to 
prove by anyone who knows Dr. Sterling, if you can 
prove that fact. If there is any person in the world 
who knows where Dr. Sterling's office is, who ^as 
seen Dr. Sterling, put him on the stand and prove it. 

Mr. BOARDMAN.— I have just asked the ques- 
tion if he knew him. 

The COURT.— This defendant says that all he 
knows about Dr. Sterling is what he has heard. 

Mr. BOARDMAN. — But he might know where his 
office is. 



100 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 

The COURT.— I think not. 

Mr. BOARDMAN. — I know men by reputation in 
San Francisco and know where their offices are, but 
I am not acquainted with them. 

The COURT. — That is not evidence, what you 
heard. 

Mr. BOARDMAN. — I will take an exception. 

The COURT. — If there is such a person, it is the 
easiest thing in the world to find some one who knows 
him. 

Mr. BOARDMAN. — Sometimes not, particularly 
if he is this kind of an individual. 

Q. You state that you do not know, or did not 
know personally, Dr. Sterling. A. I do. 

Q. You state as a fact that he was formerly con- 
nected with the firm of Dr. Talcott & Company, do 
you? 

Mr. McKINLEY.— He did not testify to anything 
of the sort, and your Honor ruled that out. I object 
to it on the same grounds as I have already stated. 
This witness has shown that he cannot know any- 
thing about this because he does not know the man 
or anything about him. 

The COURT.— Proceed with the witness. 



The United States of America. 101 

(Testimony of Dr. B. B. Lee.) 

Mr. BOARDMAN.— Q. I will ask you if you 
know as a matter of fact that during the year 1904 
Dr. Sterling was connected with the firm of Dr. Tal- 
cott & Company at 1140 Market street? 

A. I do. 

Mr. McKINLEY. — Just a moment. I move to 
strike out the answer, first; secondly, I make the 
same objection and the additional objection that the 
question is leading, but I think the objection I have 
already made is sufficient. 

The COURT. — The answer cannot be stricken out. 
That is a matter for argument. It is legitimate argu- 
ment for you to make to the jury that the man does 
not know Dr. Sterling; all he knows about him is 
what he heard about him. You may argue to the 
jury whether it is possible for him to know as a 
matter of fact that he was in partnership with Dr. 
Talcott & Co. That is a matter for argument. 

Mr. McKINLEY. — I appreciate the point that you 
make. I should like to ask you in all fairness to 
instruct this witness not to answer until I have a 
chance to make an objection when so advised. 

The COURT.— Yes. (Addressing the witness.) 
Wait until the question is asked before you answer 
it. If the District Attorney is making an objection 
do not answer it. 



102 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 

Mr. BOARDMAN. — Q. Doctor, do you get any 
mail at 1140 Market street, at all? 

Mr. McKINLEY. — Objected to as incompetent, ir- 
relevant and immaterial. 

The COURT.— I do not think that question is 
material. The District Attorney has put in a letter 
which the witness Dodge testified that he addressed 
to R. Brooke Sterling. If you want to, you can ask 
the defendant whether he ever received such a letter 
as that. 

Mr. BOARDMAN.— I submit the question. He 
never had anything to do with 1140 Market street, 
and I desire to show it, and has not now. Will your 
Honor rule on that question? 

The COURT.— Certainly. The objection is sus- 
tained. 

Mr. BOARDMAN.— I will take an exception. 

The COURT.— Whether he received mail at 1140 
Market street is not material. There are two very 
material questions in this case : One is, whether this 
defendant received the first letter introduced by the 
Government; and the second one is, whether he de- 
posited that letter in the postoffice. These are the 
questions. 



The United States of America. 103 

(Testimony of Dr. B. B. Lee.) 

Mr. BOARDMAN.— We are confronted with a 
series of circumstances which are undertaken by the 
prosecution to be shown to be implicating and in- 
criminating. How can we combat a direct fact which 
is not proven by any word of testimony before this 
Court except by denial and combating these alleged 
circumstances? There is nothing here but some 
vague circumstances which undertake to implicate 
Dr. Lee under this communication. I think we 
ought to have the same latitude as to our examin- 
ation. 

The COURT. — I want you to have the same lati- 
tude. The District Attorney has proven by testi- 
mony of witnesses that this defendant had offices in 
two different places at a certain time and at certain 
dates, and that they delivered letters addressed to 
him at those addresses between those dates. If you 
want to show by this defendant he never was in 
either of those offices and that he never received any 
letter at either of those offices at that time between 
those dates, you may do that. 

Mr. BOARDMAN. — Q. Where was your office in 
the month of January, 1905? 

A. 997 Market street. 

Q. Were you doing business as Doctor B. Brooks 
Lee at 997 Market street? A. I was. 



104 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 

Q. Did you carry on any other business there at 
that time? 

A. I was attending to business for another party. 

Q. Now, I will ask you if you received any mail 
at 1140 Market street under the name of B. Brooks 
Lee or R. Brooke Sterling during the month of Jan- 
uary, 1905 ? A. I did not. 

Q. You ceased your connection with 1140 Market 
street in the month of December, did you say, 1904 ? 

A. Yes, sir. 

Q. I will ask you, Doctor, if you ever saw that 
paper which purports to be a letter — 

Mr. McKINLEY.— A copy of a letter. 

Mr. BOARDMAN.— Q. (Continuing.) —prior 
to the time that it was introduced in court here — or, 
I will ask you, when did you first see that letter — 
that paper? (Handing "U. S. Ex. 1.") 

A. I saw it when it was introduced as testimony. 
Q. Here to-day? A. Yes, sir. 

Q. Did you ever see it any other time? 
A. I never did. 

Q. Did you ever see it at 1140 Market street in 
San Francisco? 

Mr. McKINLEY.— I suggest that that is not the 
letter which it was contended was sent to 1140 Market 
street. 



The United States of America. 105 

(Testimony of Dr. B. B. Lee.) 

The COURT. — Let the counsel ask the question. 
You will have an opportunity to cross-examine the 
witness. 

Mr. McKINLEY. — I want to set counsel right. 

Mr. BOAEDMAN. — I can take care of myself. 

Q. Did you ever see that letter at 997 Market 
street, San Francisco? A. I did not. 

Q. Did you ever receive that letter through the 
mail in any capacity? A. No, sir. 

Q. Or under any name whatever? 

A. No, sir. 

Q. I show you, now, a letter produced here, which 
purports to be a copy of the letter which I have just 
shown to you. (Handing "IT. S. Exhibit No. 2" to 
the witness.) 

Mr. McKINLEY.— I object to that on the ground 
that it does not purport to be anything of the sort- 
Mr. BOAEDMAN.— That is your case. 

Mr. McKINLEY.— That purports to be the letter 
set forth in the indictment which the witness is now 
looking at. 

The COUET. — Let him ask the question in his own 
way. If he does not see fit to designate the letter 
properly, that is his lookout. 

A. I never saw that letter. 



106 B. Brooks Lee vs. 

(Testimony of Dr. B. B. Lee.) 

Mr. BOARDMAN.— Q. Did you ever see that let- 
ter before you were brought into court here ? 
A. No, sir. 

Q. Did you write that letter ? A. I did not. 

Q. Is that your handwriting? A. It is not. 

Mr. BOARDMAN.— If your Honor will permit 
me, I am going to ask this witness to copy that letter 
and submit the copy to the jury right here. It will 
only take a minute. 

Mr. McKINLEY.— I am going to object to his 
copying it. He can write it without it being in front 
of him. 

Mr. BOARDMAN.— We say it is not his hand- 
writing. 

Mr. McKINLEY. — I withdraw the objection un- 
der the circumstances. 

Mr. BOARDMAN.— I should think you would. 

Q. Do you write with a stub pen, Doctor? 

A. I write with a pen the same as this. This is 
not a stub pen, I don't think. 

Q. Now, let us see you write that. Write it off 
in your handwriting. 

A. Do you want me to copy it verbatim? 

Q. Yes, a copy of it. 

Q. Or do you want a specimen of my handwrit- 
ing? 



The United States of America. 107 

(Testimony of Dr. B. B. Lee.) 

Q. Copy it right off. 

(The witness proceeds to do as requested.) 

The COURT.— How long a time will this take up? 

Mr. BOARDMAN. — It will not take up more than 
two minutes. 

The COURT. — Inasmuch as it does not have any- 
thing to do with the case, I should like to have you 
get through with it as quickly as you can. 

Mr. BOARDMAN. — We will take an exception. 
I hardly think that is a fair inference on a matter 
of fact. This is the case against the defendant. 

The COURT.— That is enough. 
(The witness writes the letter.) 

Mr. BOARDMAN.— I should like to introduce 
this in evidence as a specimen of the handwriting of 
the defendant. 

Mr. McKINLEY.— No objection. 

(The paper is marked " Defendant's Exhibit No. 
l.») 

The original of the said Defendant's Exhibit No. 
1, together with the other original exhibits in this 
cause are transmitted to the Circuit Court of Ap- 
peals by order of the United States District Court. 



108 B. Brooks Lee vs. 

(Testimony of Dr. D. P. Ragan.) 

Mr. BOARDMAN. — Q. Did you have any knowl- 
edge of the writing of that letter at the time that it 
purports to have been written ? 

A. None whatever. 

Q. Did you have any knowledge of the letter at 
all? A. None at all. 

Q. During the month if January, 1905, or prior 
to the commencement of this action? 

A. I did not. 

Cross-examination. 

Mr. McKINLEY. — Q. Were you ever associated 
with Dr. R. Brooke Sterling at 997 Market Street? 
A. No, sir. 

Dr. D. F. RAGAN, called for the defendant, 
sworn. 

Mr. BOARDMAN.— Q. You live in San Francis- 
co, do you? A. I do. 

Q. How long have you lived here? 

A. Twenty-one years. 

Q. What is your business or profession? 

A. Physician and surgeon. 

Q. How long have you been such? 

A. Seventeen years. 

Q. Do you hold any official position at the present 
time in San Francisco? 

A. I am health officer of the city and county. 



The United States of America, 109 

(Testimony of Dr. D. F. Ragan.) 

Q. Do you know Doctor Lee, the defendant here ? 
A. I do. 

Q. How long have you known him? 
A. Some ten years. 

Q. Do you know his character as a physician and 
surgeon in this city and county ? 

Mr. McKINLEY.— I object to the question as 
wholly irrelevant to any issue in this case — what his 
character as a physician may be. 

The COURT.— I will sustain the objection. 

Mr. BOARDMAN. — I will take an exception. 
Q. Do you know how long Dr. Lee has been prac- 
ticing as a physician and surgeon in San Francisco ? 

Mr. McKINLEY.— That is not relevant. 

The COURT.— Let it be answered. 
A. Only within the time I have indicated — ten 
years. 

Mr. BOARDMAK— Q. Can you state, from 
your acquaintance and knowledge of Dr. Lee, what 
his reputation is in the city and county of San Fran- 
cisco, for honesty and integrity? You can say yes 

or no. 

A. Do I know his reputation? 
Q. Yes. 



110 B. Brooks Lee vs. 

(Testimony of Dr. D. F. Ragan.) 

The COURT. — Q. Do you know his general repu- 
tation in this city for honesty and integrity? 

A. Let me see — that is, as to the general opinion ? 

Q. Yes. 

A. And as to a discussion of his reputation and 
character and all that — does that include that? 

Mr. BOARDMAN.— Q. Yes, the general esti- 
mate which is given of him. 

The COURT.— Q. What people say of him who 
know him, who talk about him. 

A. As an individual, not as a physician? 

Q. As an individual, for honesty and integrity. 

Mr. BOARDMAN.— In all capacities. 
A. Yes, sir. 

Q. What do you say, is it good or bad? 
A. I should say it was good. 

Mr. McKINLEY — No questions. 

JOHN H. WISE, called for the defendant, sworn. 

Mr. BOARDMAN.— Q. How long have you lived 
in San Francisco, Mr. Wise? 

A. Since 1853, the 12th of May, 1853, 1 have lived 
here. 

Q. Do you know Dr. Lee, the defendant here? 

A. Yes, sir. 

Q. How long have you known him? 



The United States of America. Ill 

(Testimony of John H. Wise.) 

A. Seven or eight years — maybe ten years — I 
forget. I am not exactly certain about the time. 
Something like that. 

Q. Have you known him during his business ca- 
reer in San Francisco during that period of time ? 

A. Yes, sir. 

Q. What would you say as to his reputation for 
honesty and integrity during the period that you 
have known him ? 

A. It is good. 

Q. Have you ever had any business relations with 
him? A. Yes, sir. 

Mr. McKINLEY.— I do not think that is material. 
The question has been answered. 

Mr. BOARDMAK— That is all. 

Mr. McKINLEY.— No questions. 

Mr. BOARDMAN.— That is the case for the de- 
fendant. 

Thereupon, and on the 15th day of May, 1905, the 
evidence in said case having been completed and the 
arguments of the respective counsel having been 
made to the jury, the Court, upon its own motion, 
gave to the jury the following instructions : 

"The COURT (Orally).— Gentlemen of the Jury: 
It is not a ground of defense that the letter which the 



112 B. Brooks Lee vs. 

indictment charges the defendant with depositing in 
the United States mails was written in answer to a 
test letter or decoy letter from the Secretary of the 
National Society for the Prevention of Vice, or from 
any other person. In other words, the only questions 
for you to consider here are, Did the defendant de- 
posit, or cause to be deposited, in the United States 
mail the letter set out in the indictment, and did that 
letter give information as to where, or of whom, or 
by what means articles and things for the prevention 
of conception or for the procuring of abortion might 
be obtained. If you find these facts to be true to a 
moral certainty and beyond all reasonable doubt, it 
will be your duty to return a verdict of guilty as 
charged. 

"You are further instructed that it is not neces- 
sary for the Government to prove by direct testimony 
that the defendant either deposited or caused to be 
deposited in the postoffice the letter in question. It 
will be sufficient if these facts, or either of them, be 
established by circumstantial evidence. 

"The rule of law in regard to proving a fact by 
circumstantial evidence is, that it is not sufficient that 
the circumstances proved coincide with, account for, 
and therefore render probable, the hypothesis sought 
to be established by the prosecution, namely, the guilt 
of the defendant, but the circumstances must exclude 
to a moral certainty any other reasonable hypothesis 



The United States of America, 113 

than the simple one of guilt, and if they do not reach 
that degree of proof and do not satisfy your minds to 
that extent, the defendant will be entitled to a verdict 
of not guilty. 

"The presumption of law, independent of proof, is 
that the defendant is innocent, and to the benefit of 
that presumption he is entitled until the evidence 
shall satisfy you beyond all reasonable doubt that 
he is guilty. 

"Evidence has also been offered on behalf of the 
defendant tending to show that his character for hon- 
esty and integrity is good. That, gentlemen, is a 
fact, if proven to your satisfaction, that you will con- 
sider in connection with all of the other circumstances 
in the case ; but if you are satisfied beyond all reason- 
able doubt that the defendant is guilty as charged, 
then it will be your duty to return a verdict of guilty, 
notwithstanding you may believe that he has hitherto 
and now bears a good reputation for honesty and 
integrity. 

"With these instructions you may retire." 

Whereupon, on the 15th day of May, 1905, the jury 
retired to deliberate on a verdict, and on the same 
day the jury came into open court with a verdict as 
follows : 

"We, the jury, find B. Brooks Lee, alias R. Brooke 
Sterling, the prisoner at the bar, guilty as charged." 



114 B. Brooks Lee vs. 

To which verdict the defendant then and there ex- 
cepted. 

Thereafter, on May 29, 1905, defendant filed his mo- 
tion for a new trial, of which motion the following is 
a copy : 

In the District Court of the United States, in and for 
the Northern District of California. 

No. 4271. 

THE UNITED STATES OP AMERICA 

vs. 

B. BROOKS LEE. 

Motion for a New Trial. 

The defendant above named, B. Brooks Lee, now 
comes into court, with his counsel, and this being the 
time heretofore fixed by the Court for the passing 
of sentence and pronouncing of judgment, said de- 
fendant moves the Court for a new trial herein, upon 
the following grounds, to wit : 

1. That the said Court committed manifest errors 
in the rulings made at the trial, adversely to defend- 
ant's objections and exceptions ; 

2. That the evidence is wholly insufficient to jus- 
tify the verdict in said action, whereby defendant is 
found guilty as charged in the said indictment herein ; 

3. That the verdict is against law, to the extent 



The United States of America. 115 

4. That there exists a fatal variance between the 
proofs herein and the allegations contained in said 
indictment ; 

5. That defendant did not have a fair and impar- 
tial trial by a fair and impartial jury, as guaranteed 
by law. 

Wherefore, defendant prays that he may be 
granted a new trial of this action. 
Dated May 29th, 1905. 

LOUIS P. BOARDMAN, . 
Attorney for Defendant. 
Which motion for new trial is endorsed: Filed 
May 29, 1905. Jas. P. Brown, Clerk. By J. S. 
Manly, Deputy Clerk. 

LOUIS P. BOARDMAN, 
Attorney for Defendant. 
Thereupon, on said 29th day of May, 1905, defend- 
ant's said motion for new trial was argued and sub- 
mitted, and considered by the Court and by it denied 
on said day, to which ruling the defendant then and 
there excepted. 

Thereupon, on the 29th day of May, 1905, the de- 
fendant filed his motion that the judgment on the 
aforesaid verdict be arrested, of which motion the 
following is a copy : 



116 B. Brooks Lee vs. 

In the District Court of the United States, in and for 
the Northern District of California. 

No. 4271. 
THE UNITED STATES OP AMERICA, 

Plaintiff, 
vs. 
B. BROOKS LEE, 

Defendant. 

Motion to Arrest of Judgment. 

The defendant above named, B. Brooks Lee, having 
come into court with his counsel, and this being the 
time heretofore fixed by the Court for pronouncing 
sentence and judgment, and said defendant being now 
arraigned for judgment, by his counsel now moves the 
Court to arrest the judgment herein, upon the follow- 
ing grounds, to wit : 

1. That the indictment herein does not state facts 
sufficient to constitute an offense, and charges no 
crime; 

2. That said indictment does not state facts suffi- 
cient to constitute an offense under section 3893 of the 
Revised Statutes of the United States, as amended by 
Act of Congress of September 26, 1888 ; 

3. That said indictment is double, charges more 
than one offense without stating the same in separate 
counts, and is null and void by reason of such duplic- 
ity; 



The United States of America. 117 

4. That said indictment is wholly insufficient to 
state a crime, in that it does not show nor is it alleged 
therein, and it does not appear therefrom, what arti- 
cle of thing is meant or referred to in said indictment, 
or in the letter or card set forth therein, and no arti- 
cle or thing whatever is mentioned in said indictment 
or the said letter or card therein contained, concern- 
ing which any letter or card containing any informa- 
tion relative thereto and sent through the mails or 
deposited in the United States postoffice, would con- 
stitute any violation of said Section 3893 of the Re- 
vised Statutes of the United States, or any crime 
whatever ; 

5. That there is a fatal variance between the 
proofs and the allegations contained in said indict- 
ment; 

6. That said indictment is multifarious, in this: 
it appears therefrom that said defendant is charged 
with the commission of two offenses under section 
3893 of the Revised Statutes of the United States, as 
amended by Act of Congress, September 26, 1888 : 

7. That it appears from the record herein that 
the plea of misnomer to said indictment made, en- 
tered and filed by the defendant in this action was 
and is good and sufficient, and well founded in point 
of law, and that the order of the Court striking said 
plea from the records and files herein, was without 



118 B. Brooks Lee vs. 

power, authority or jurisdiction of the Court so to 
do, and contrary to law. 

8. That the trial of defendant, and the verdict 
herein were and are without jurisdiction, and void, 
and the Court has no power, authority or jurisdiction 
to enter any judgment herein or pass sentence upon 
defendant, for the reason that no valid plea of de- 
fendant to the merits of said indictment, upon which 
to base an issue of fact for trial before a jury, was at 
any time made or entered by the defendant herein. 

Wherefore, defendant prays that judgment herein 
may be arrested, and that he go hence according to 
law. 

Dated May 29th, 1905. 

LOUIS P. BOARDMAN, 
Attorney for Defendant. 

Which motion in arrest of judgment is endorsed : 
Filed May 29, 1905. Jas. P. Brown. By J. S. 
Manly, Deputy Clerk. 

The Court having heard said motion in arrest of 
judgment, on said 29th day of May, 1905, made an 
order on said day denying said motion, to which order 
denying said motion in arrest of judgment the de- 
fendant by his counsel then and there duly excepted. 

Whereupon, upon the day last aforesaid said cause 
came on for judgment and the Court then and there 
pronounced and entered judgment on the verdict as 
follows : 



The United States of America. 119 

At a stated term of the District Court of the United 
States, for the Northern District of California, 
held at the courtroom in the City and County of 
San Francisco, on Monday the 29th day of May, 
A. D. 1905. Present, the Hon. JOHN J. DE 
HAVEN, Judge. 

No. 4271. 

THE UNITED STATES OF AMERICA 

vs. 

B. BROOKS LEE, alias R. BROOKE STERLING, 

Defendant. 

Judgment on Verdict of Guilty. 

Benjamin L. McKinley, Assistant United States 
Attorney, the defendant and his counsel, L. P. Board- 
man, came into court. The defendant was duly in- 
formed by the Court of the nature of the indictment 
filed on the 4th day of March, 1905, charging him with 
the crime of giving information as to where, an abor- 
tif acient could be procured ; and his arraignment and 
plea of not guilty; of his trial and verdict of the jury 
on the 15th day of May, 1905, to wit: "We the jury 
find B. Brooks Lee, alias R. Brooke Sterling, the 
prisoner at the bar, guilty as charged." 

The defendant was then asked if he had any legal 
cause to show why judgment should not be pro- 
nounced against him, and no sufficient cause being 



120 B. Brooks Lee vs. 

shown or appearing to the Court, thereupon the Court 
rendered its judgment: That, whereas, the said B. 
Brooks Lee, alias R. Brooke Sterling, having been 
duly convicted in this Court of the crime of giving 
information as to where an abortifacient could be 
procured, it is therefore, ordered, adjudged and de- 
creed that the said B. Brooks Lee, alias R. Brooke 
Sterling, be and he is hereby sentenced to pay a fine 
of five hundred (500) dollars; and in default of pay- 
ment of said fine of five hundred (500) dollars, the 
said B. Brooks Lee, alias R. Brooke Sterling, be im- 
prisoned until said fine be paid, or until he be other- 
wise discharged by due process of law ; and it is fur- 
ther ordered that said judgment of imprisonment be 
executed upon the said B. Brooks Lee, alias R. 
Brooke Sterling, by imprisonment in the County Jail 
of the City and County of San Francisco, State of 
California. 

JOHN J. DE HAVEN, 
United States District Judge, Northern District of 
California. 

On said 29th day of May, 1905, at the time said 
judgment was pronounced, the defendant by his coun- 
sel excepted to said judgment and to each and every 
division and portion thereof. 

Thereupon on said 29th day of May, 1905, the Court 
made an order staying execution of the judgment for 
a period of five days from and after said day and 



The United States of America. 121 

granted the defendant ten days within which to pre- 
pare and serve his proposed bill of exceptions in this 
case upon the United States Attorney. And there- 
after on the 3d day of June, 1905, the Court made an 
order further extending the time of the defendant to 
prepare and serve his proposed bill of exceptions in 
this case upon the United States Attorney for a fur- 
ther period of fifteen days. 

Thereafter, to wit, on the 19th day of June, 1905. 
Wm. H. H. Hart, Esq., was substituted as counsel for 
the defendant in the above-entitled action and case. 

Now comes the said defendant by his counsel and 
proposes the foregoing bill of exceptions in this case, 
in accordance with the rules of the aforesaid Court, 
and prays the same be allowed, certified and signed, 
and made a part of the record in this case. 

B. B. LEE, 
Defendant. 
WM. H. H. HART, 
Attorney or Defendant. 
The foregoing bill of exceptions is hereby stipu- 
lated to be correct and may be allowed. 

Attorney for Defendant. 

Asst. United States Attorney. 

And now, on the 16th day of October, 1905, 1, John 

J. De Haven, the United States District Judge who 

presided at said trial of the above-entitled case, 

wherein the United States is plaintiff, and B. Brooks 



122 B. Brooks Lee vs. 

Lee, alias R. Brooke Sterling, is defendant, do hereby 
certify that the above and foregoing bill of excep- 
tions was served upon United States Attorney in ac- 
cordance with the rules of the aforesaid District 
Court in and for the Northern District of California, 
and within the time fixed by the order of said court 
and of the Judge thereof, and said bill of exceptions 
having been settled by me, and the same having been 
correctly engrossed, I hereby certify that said bill of 
exceptions is a correct and true bill of exceptions in 
said case, and the same is by me allowed and signed, 
and ordered to be filed and made a part of the record 
in said case. 

JOHN J. DE HAVEN, 

Judge. 

[Endorsed] : Service of the within by copy ad- 
mitted 19th June, 1905. 

United States Attorney. 

[Endorsed] : Service of the within by copy ad- 
mitted June 19, 1905. 

ROBT. T. DEVLIN, 

United States Attorney. 
By BENJ. L. McKINLEY, 

Asst. United States Attorney. 

Piled Oct. 16, 1905. Jas. P. Brown, Clerk. By 
J. S. Manley, Deputy Clerk. 



The United States of America. 123 

Writ of Error (Copy). 
UNITED STATES OF AMERICA— ss. 

The President of the United States, to the Honorable, 
the Judge of the District Court of the United 
States for the Northern District of California, 
Greeting : 
Because, in the record and proceedings, as also in 
the rendition of the judgment of a plea which is in the 
said District Court before you, or some of you, be- 
tween B. Brooks Lee, plaintiff in error, and the 
United States of America, defendant in error, a mani- 
fest error hath happened, to the great damage of the 
said B. Brooks Lee, plaintiff in error, as by his com- 
plaint appears. 

We, being willing that error, if any hath been, 
should be duly corrected, and full and speedy justice 
done to the parties aforesaid in this behalf, do com- 
mand you, if judgment be therein given, that then 
under your seal, distinctly and openly, you send the 
record and proceedings aforesaid, with all things con- 
cerning the same, to the United States Circuit Court 
of Appeals for the Ninth Circuit, together with this 
writ, so that you have the same at the city of San 
Francisco, in the State of California, on the 26th day 
of December, next, in the said Circuit Court of Ap- 
peals, to be then and there held, that the record and 
proceedings aforesaid being inspected, the said Cir- 



124 , B. Brooks Lee vs. 

cuit Court of Appeals may cause further to be done 
therein to correct that error, what of right, and ac- 
cording to the laws and customs of the United States, 
should be done. 

Witness, the Honorable MELVILLE W. FUL- 
LER, Chief Justice of the Supreme Court of the 
United States, the 28th day of November, in the year 
of our Lord one thousand nine hundred and five. 

(Sgd.) JAS. P. BROWN, 
Clerk U. S. District Court, Northern District of Cal- 
ifornia. 
Allowed by 

(Sgd.) JOHN J. DE HAVEN, 

U. S. District Judge. 

[Endorsed] : Copy of Writ of Error lodged for 
Deft, in Error in the Clerk's Office U. S. Dist. Court, 
Nn. Dist. of California, this 28th day of Nov. 1905. 
Jas. P. Brown, Clerk U. S. District Court, Northern 
District of California. 



Clerk's Certificate to Transcript. 

United States of America, 
Northern District of California, — ss. 

I, James P. Brown, Clerk of the District Court of 
the United States for the Northern District of Cali- 
fornia, do hereby certify and return to the Honor- 
able, the United States Circuit Court of Appeals, for 



The United States of America. 125 

the Ninth Circuit, that the foregoing volume, con- 
sisting of ninety-one (91) pages, numbered from 1 
to 91, inclusive, is a true and complete transcript of 
the records, proceedings, pleadings, orders, judg- 
ment and other proceedings in said case, and of the 
whole thereof, as appears from the original records 
and files of said court, made up pursuant to praecipe 
filed by plaintiff in error. And I further certify and 
return that have annexed to said transcript, and in- 
clude within said paging the original citation, writ of 
error, and proof of service thereof. 

I further certify that the cost of said record, 
amounting to fifty-five and 30/100 dollars ($55.30), 
has been paid by appellant. 

In witness whereof, I have hereunto set my hand 
and affixed the seal of said court at San Francisco, in 
the Northern District of California, this 7th day of 
February, A. D. 1906, and of the Independence of the 
United States the one hundred and thirtieth. 

[Seal] JAS. P. BROWN, 

Clerk. 



126 B. Brooks Lee vs. 

[Endorsed]: No. 1306. United States Circuit 
Court of Appeals for the Ninth Circuit. B. Brooks 
Lee, Plaintiff in Error, vs. The United States of 
America, Defendant in Error. Transcript of Rec- 
ord. Upon Writ of Error to the United States Dis- 
trict Court for the Northern District of California. 
Filed February 8, 1906. 

F. D. MONCKTON, 

Clerk. 



United States Exhibit No. 1. 

Goshen Ind. Jan 2, 05 

Dr E. Brooke Sterling 
1140 Market St 

San Francisco — 

Dear Doctor . 

Your advertisement in the Chronicle appeals to 
me just now, as I can not come there, do you send 
a medicine or anything that will relieve a woman so 
she wont have a child if she is only about 2 1 / <> months 
pregnant. If you do what does it cost and may I 
hear from you quick — 
Address 

JENNIE MEREDITH, 
R R 8 

Goshen Ind 



The United States of America. 127 

[Endorsed] : No. 4271. U. S. vs. B. Brooks Lee. 
U. S. Exhibit No. One. J. S. Manley, Deputy Clerk. 

No. 1306. U. S. Circuit Court of Appeals for the 
Ninth Circuit. U. S. Exhibit No. One. Received 
Feb. 8, 1906. F. D. Monckton, Clerk. By Meredith 
Sawyer, Deputy Clerk. 



United States Exhibit No. 2. 

Telephone South 946 

Office Hours 10 A. M. to 12 M., 2 to 5 and 7 to 8 P. M. 

R. BROOKE STERLING, M. D. 

Specialist for the Diseases of Women 

1140 Market Street 

San Francisco, Jan. 9th 1905. 
Jennie Meredith, 
R, R. 8. 

Goshen, Ind. 
Dear Miss: 

In answer to yours of the 2nd inst will say that 
upon receipt of Ten ($10.00) Dollars from you, I 
will send per express necessary treatment with full 
instructions. 

Respectfully 

R, BROOKE STERLING M. D. 
Pr. L. 

[Endorsed] : No. 4271. U. S. vs. B. Brooks Lee. 
U. S. Exhibit No. 2. J. S. Manley, Deputy Clerk. 



128 B. Brooks Lee vs. 

No. 1306. U. S. Circuit Court of Appeals for the 
Ninth Circuit. U. S. Exhibit No. 2. Received Feb. 
8, 1906. P. D. Monckton, Clerk. By Meredith Saw- 
yer, Deputy Clerk. 

(Envelope.) 

Return to 
R. B. Sterling 
997 Market Street 
San Francisco 

Miss Jennie Meredith 
Goshen, 
R. R. 8. Ind. 

[Endorsed] : No. 4271. U. S. vs. B. Brooks Lee. 
U. S. Exhibit No. 2. J. S. Manley, Deputy Clerk. 

No. 1306. U. S. Circuit Court of Appeals for the 
Ninth Circuit. IT. S. Exhibit No. 2. F. D. Monck- 
ton, Clerk. By Meredith Sawyer, Deputy Clerk. 



United States Exhibit No. 3. 

Case No. — Dr. R. Brooke Sterling, Sec. 497. 

POSTOFFICE DEPARTMENT, 

Office of Postoffice Inspector, 

San Francisco Division. 

San Francisco, Cal., December 16th, 1904. 

Respectfully 

Clipping from San Francisco (Cal.) " Chronicle," 

December 15th, 1904. 



The United States of America. 129 

AA— Dr. R. Brooke Sterling, 1140 Market st. 

Old and Reliable Specialist for Women. 
Thirty years' experience in the treatment of 
diseases of women exclusively, without a single fail- 
ure or unpleasant result. Dr. Sterling offers his ser- 
vices and waits for his fee until the promised results 
are accomplished. It will cost you nothing to have a 
talk with the doctor and may save you many hours of 
suffering and many dollars uselessly spent. I am a 
regularly qualified physician, devoting my time ex- 
clusively to the treatment of female diseases of every 
character, and you can rest assured of courteous at- 
tention and desired results if you consult me. I 
positively guarantee immediate results, and only one 
visit is necessary. No humiliating examinations or 
injurious drugs. A private sanitarium is connected 
with office, which is private and devoted exclusively 
to ladies. My large practice enables me to charge 
moderate fees, seldom exceeding $10. If you cannot 
call, write; all correspondence sacredly confidential. 
Office hours 10 A. M. until 8 P.M.; Sunday 10 to 12 
only. 

DR. R. BROOKE STERLING, 1140 Market. 
JAMES O'CONNELL, 

Postoffice Inspector. 

[Endorsed] : No. 4271. U. S. vs. B. Brooks Lee. 
U. S. Exhibit No. 3. J. S. Manley, Deputy Clerk. 



130 B. Brooks Lee vs. 

No. 1306. U. S. Circuit Court of Appeals for the 
Ninth Circuit. U. S. Exhibit No. 3. Received Feb. 
8, 1906. P. D. Monckton, Clerk. By Meredith Saw- 
yer, Deputy Clerk. 



Defendant's Exhibit No. 1. 

Jennie Meredeth 
R R 8 

Goshen Ind 
Dear Miss 

In answer to yours of the 2nd inst. will say that 
upon 

B. B. LEE 

R. BROOKE STERLING 

[Endorsed] : No. 4271. U. S. vs. B. Brooks Lee. 
Deft. Exhibit No. 1. J. S. Manley, Deputy Clerk. 

No. 1306. U. S. Circuit Court of Appeals for the 
Ninth Circuit. Deft. Exhibit No. 1. Received Feb. 
8, 1906. P. D. Monckton, Clerk. By Meredith Saw- 
yer, Deputy Clerk. 



No. 



l*5ofe. 



IN THE 

Untfrn States (Etmttt (tart of Appeals 

FOR THE NINTH CIRCUIT. 



B. BROOKS LEE, 

Plaintiff in Error, 
vs. 

THE UNITED STATES OF AMERICA, 

Defendant in Error. 



BRIEF FOR PLAINTIFF IN ERROR. 



WM. H. H. HART, 

Attorney for Plaintiff in Error. 



f'UESS OJ 1HH JAM1S U. BA3R7 CO. 
S12-314 I.IlAVIiJ2SrWOnTH ST. 



FILED 



IN THE 

Inttf h States (Etrrmt (tart of Appeals 

FOR THE NINTH CIRCUIT. 



B. BROOKS LEE, 

Plaintiff in Error, 
VS. 

THE UNITED STATES OF AMER- 
ICA, 

Defendant in Error. 



BRIEF ON BEHALF OF PLAINTIFF IN ERROR. 



STATEMENT OF FACTS. 

On March 4th, 1905, the Grand Jury presented an 
indictment, which was filed on said day and which was 
in words and figures following, to wit (Tr., pp. 12-14) 
(Bill of Exceptions, Tr. 45-47) : 

"In the District Court of the United States, in and for 
the Northern District of California. 

INDICTMENT. 

"Sect. 3893 R. S. as amended by Act of Sept. 26, 1888. 

"At a stated term of said court, begun and holden 
at the City and County of San Francisco, in the State 



and Northern District of California, on the first Mon- 
day in November, in the year of our Lord one thousand 
nine hundred and four. 

"The Grand Jurors of the United States of Amer- 
ica, within and for the district aforesaid, on their oath 
present that, 

B. Brooke Lee, 

alias 'R. Brooke Sterling,' whose true name is to the 
Grand Jurors aforesaid unknown, late of the Northern 
District of California, heretofore, to wit, on the ninth 
day of January, in the year of our Lord one thousand 
nine hundred and five, at the City and County of San 
Francisco, in the State and Northern District of Cali- 
fornia, then and there being, did then and there 
willfully, unlawfully, knowingly and feloniously de- 
posit and cause to be deposited in the postoffice estab- 
lishment of the United States of America, at said City 
and County of San Francisco, in said State and North- 
ern District of California, for mailing and delivery, 
by and through and by means of the said postoffice 
establishment of the United States of America, a cer- 
tain written letter, which said written letter was en- 
closed in a sealed envelope upon which the postage had 
been prepaid, and addressed to 'Miss Jennie Meredith, 
Goshen, Ind., R. R. 8/ and which said written letter 
then and there gave information where and how, and 
of whom, and by what means, divers articles and 
things designed and intended for the prevention of 



conception and for the procuring of abortion, might be 
obtained; and which said written letter was in the 
words and figures following, to wit: 

" Telephone South 946. Office Hours 10 A. M. to 
12 M., 2 to 5 and 7 to 8 P. M., R. Brooke Sterling, M. 
D., Specialist for the Diseases of Women, 1140 Mar- 
ket Street, San Francisco, Jan. 9th, 1905. 
" 'Jennie Meredith, R. R. 8, Goshen, Ind. 

" 'Dear Miss: In answer to yours of the 2nd inst. 
will say that upon receipt of Ten ($10.00) Dollars from 
you I will send per express necessary treatment with 
full instructions. 

" 'Respectfully, 
" 'R. Brooke Sterling, M. D., 

" 'Per L.' 

"Against the peace and dignity of the United States 
of America, and contrary to the form of the statute of 
the said United States of America, in such case made 
and provided. 

"MARSHALL B. WOODWORTH, 

"United States Attorney." 

On April 1st, 1905, the plaintiff in error, B. Brooks 
Lee, having been arrested, was brought into Court and 
through his attorney, Louis P. Boardman, filed a mo- 
tion to quash, set aside and dismiss the indictment, the 
grounds of which motion were in words following, to 
wit (Tr., pp. 48-53): 

"First: That it appears upon the face of said in- 
dictment that there are two alleged offenses charged in 



said indictment in one count only, and not separately 
stated in separate counts, viz. : 

"ist. An alleged offense on the part of the defend- 
ant by reason of alleged acts complained of giving in- 
formation where, how, and of whom, and by what 
means divers articles and things designed and intended 
for the prevention of conception might be obtained; 
with 

"2d. An alleged offense on the part of the defend- 
ant by reason that the acts complained of give infor- 
mation where, and how, and of whom, and by what 
means divers articles and things designed and intended 
for the procuring of abortions might be obtained. 

"Second: Said indictment should be quashed and 
dismissed for the reason that it charges two offenses in 
one count, viz: 

"One offense alleged to have been committed by the 
defendant in having willfully, unlawfully, knowingly 
and feloniously deposited and caused to be deposited 
in the postofRce establishment of the United States of 
America, at said City and County of San Francisco, in 
said State and Northern District of California, for 
mailing and delivery by and through and by means of 
the said postoffice establishment of the United States 
of America, a certain written letter, which said writ- 
ten letter was enclosed in a sealed envelope upon which 
the postage had been prepaid, and addressed to the 
person and in the manner stated in said indictment and 
which said written letter then and there gave infor- 



mation where and how and of whom and by what 
means divers articles and things designed and intended 
for the prevention of conception might be obtained, is 
joined in the same count with a second offense alleged 
to have been committed by the defendant at said city, 
county, State and District aforesaid, by then and there 
willfully, unlawfully, knowingly and feloniously de- 
positing and causing to be deposited in the postoffice 
establishment of the United States of America, at said 
City and County of San Francisco, in said State and 
Northern District of California, for mailing and de- 
livery by and through and by means of the said post- 
office establishment of the United States of America, 
a certain written letter, which said written letter was 
enclosed in a sealed envelope upon which the post- 
age had been prepaid and addressed to the person and 
in the manner stated in said indictment, and which said 
written letter and there gave information where, how, 
and of whom, and by what means divers articles and 
things designed and intended for the procuring of 
abortion might be obtained. 

"Third: That said one offense of which the defend- 
ant is charged, viz: of giving information where and 
how, and of whom, and by what means, divers articles 
and things designed and intended for the prevention 
of conception might be obtained, is improperly 
joined in the same count with an alleged offense, al- 
leged to have been committed by the defendant, in giv- 
ing information where and how, and of whom, and by 



what means, divers articles and things designed and 
intended for the procuring of abortion might be ob- 
tained. 

"Fourth: That the second offense of which the de- 
fendant is charged, viz: giving information where 
and how, and of whom, and by wheat means, divers 
articles and things designed and intended for the pro- 
curing of abortion might be obtained, is improperly 
joined in the same count with the other offense alleged 
against said defendant, of giving information where 
and how, and of whom, and by what means, divers ar- 
ticles and things designed and intended for the pre- 
vention of conception might be obtained; and said two 
alleged offenses cannot be joined in the same count in 
the same indictment. 

"Fifth: Said indictment should be quashed, set 
aside and dismissed because it alleges the commission 
by the defendant of two separate offenses, each of 
which is stated and set forth in the same count of said 
indictment; and said offenses are improperly joined 
and cannot now be separated. 

"Sixth: That the written letter, set forth in said in- 
dictment, fails to show that the articles referred to 
were intended to be used, or ever had been used, for the 
purpose of preventing conception, and there is vari- 
ance between the allegations of said indictment which 
alleges that the divers articles and things were designed 
and intended for the prevention of conception, and said 
indictment should be quashed and dismissed. 



"Seventh: That said indictment does not charge an 
offense coming within the provisions of section 3893 
of the Revised Statutes of the United States, as amend- 
ed by act of Congress, September 26, 1888. 

"Eighth: Said indictment should be quashed, set 
aside and dismissed on the ground that it is multifari- 
ous, in this: that two separate offenses are charged in 
said indictment, which, if charged, should be charged 
in separate counts, for under the law they cannot be 
charged in one count of an indictment. 

"Ninth: Said defendant also objects to, and moves 
to quash and set aside and dismiss said indictment upon 
the ground that the grand jurors constituting the jury 
which found said indictment were sworn in and said 
grand jury was impaneled previous to the commission 
of the alleged offenses charged in said indictment, and 
this defendant did not have opportunity to challenge 
said grand jury, or its formation, or opportunity to 
challenge the individual members thereof. 

"Tenth: That the said indictment is void and in- 
sufficient in point of law in this: that said indictment 
does not contain any subject matter, or the copy or de- 
scription, of any letter alleged to have been deposited 
in the postoffice establishment of the United States by 
the defendant, giving any information where, or from 
whom, the said contraband articles and things therein 
mentioned could be obtained or made, but that the 
copy of the letter alleged to have been deposited in the 
postoffice establishment of the United States by said de- 



8 

fendant, as alleged in said indictment, contains no sub- 
ject matter in violation of the laws or postal regula- 
tions of the United States, or of the section of the Re- 
vised Statutes of the United Staes, hereinabove particu- 
larly referred to, and purports to be an answer to a let- 
ter alleged to have been written by the defendant to the 
person therein mentioned, but that no copy of said orig- 
inal letter constituting the real basis of said indict- 
ment and said charge and to which the letter set forth 
in said indictment alleged to have been so deposited by 
said defendant, is an answer, is contained or described 
in, or in any manner made a part of, said indictment, 
as by law required. 

"Wherefore, defendant asks that this motion be sus- 
tained and the indictment dismissed. 

"LOUIS P. BOARDMAN, 
"Attorney for Defendant." 

[Endorsed] : Filed April ist, 1905. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 

Said objection to, and motion to quash, came on reg- 
ularly for hearing on the ist day of April, 1905, and 
the same having been argued and submitted, and duly 
considered by the Court, said motion was by the Court 
on the 15th day of April, 1905, denied, to which ruling 
the defendant then and there duly excepted. 

On the 19th day of April, 1905, the defendant filed 
a plea of misnomer, of which the following is a copy: 



9 

"In the District Court of the United States in and for 
the Northern District of California. 

"No. 4271. 

"THE UNITED STATES OF AMERICA 

"vs. 
"B. BROOKS LEE. 



"PLEA OF MISNOMER. 

"Benjamin Brooks Lee, who is indicted by the name 
of B. Brooke Lee, alias 'R. Brooke Sterling,' in his own 
proper person now comes into Court, and having 
heard the said indictment read, says that he was named 
by the name of Benjamin Brooks Lee, to wit: At the 
city of Columbia, in the State of South Carolina, and 
by the Christian name of Benjamin Brooks, and has 
also, since his naming, been called and known by the 
name of Benjamin Brooks Lee; without this, that he, 
the said Benjamin Brooks Lee, is not now, nor at any 
time hitherto, has been called or known by the Chris- 
tian name of B. Brooks, or by the said alias name of 'R. 
Brooke Sterling,' as by the said indictment is alleged, 
and that this, the said Benjamin Brooks Lee is ready to 
verify. 

"Wherefore, he prays judgment of the said indict- 
ment and that the same may be quashed, and that he be 

permitted to go hence without day. 

"B B I EE 
"LOUIS P. BOARDMAN, 

"Attorney for Defendant." 



IO 

Which plea was duly subscribed and sworn to before 
Adeline Copeland, a Notary Public in and for the City 
and County of San Francisco, State of California, by 
said Lee on the 19th day of April, 1905, and endorsed. 
Filed April 19th, '05. Jas. P. Brown, Clerk. By J. S. 
Manley, Deputy Clerk (Tr., 54). 

On April 20, 1905, plaintiff the United States filed 
a demurrer to plea of misnomer, of which the follow- 
ing is a copy: 

"In the District Court of the United States, in and for 
the Northern District of California. 

"No. 4271. 

"THE UNITED STATES OF AMERICA 



"vs. 



<B. BROOKS LEE. 



"DEMURRER TO PLEA OF MISNOMER. 

"Now comes the United States of America and de- 
murs to the plea of misnomer interposed on behalf of 
the defendant herein, upon the following ground, to 
wit: 

"That said plea does not set forth facts sufficient to 
constitute a plea of misnomer. 

(Signed.) "BENJ. L. McKINLEY, 

"Asst. United States Attorney." 



II 

Which demurrer to plea of misnomer is endorsed: 
Filed April 20, 1905. Jas. P. Brown, Clerk. By J. 
S. Manley, Deputy. Robert T. Devlin, U. S. Atty. 
(Tr.,56). 

The demurrer of the Government to defendant's plea 
of misnomer came on regularly for hearing on the 28th 
day of April, IQO$, and the same being argued and 
submitted and duly considered by the Court, it was or- 
dered that said demurrer be overruled (Tr., fol 56). 

Thereupon, on the next day, April 29, 1905, the 
District Attorney filed a motion to strike said plea of 
misnomer from files, of which the following is a copy: 

"In the District Court of the United States, in and for 
the Northern District of California. 

"No. 4271. 

"THE UNITED STATES OF AMERICA 

"vs. 
"B. BROOKS LEE, alias R. BROOKE STERLING. 



"MOTION TO STRIKE PLEA OF MISNOMER 
FROM FILES. 

"Now comes Robert T. Devlin, United States At- 
torney for the Northern District of California, and 
moves the Court to strike from the files the plea of mis- 
nomer heretofore filed by the defendant herein, upon 



12 

the ground that said plea was not presented to the 
Court at the proper time and that the right of said de- 
fendant to file said plea was waived by his previous 
motion to quash the indictment herein. 

(Signed.) "ROBT. T. DEVLIN, 

"United States Attorney." 

[Endorsed]: Filed April 29th, 1905. Jas. P. 
Brown, Clerk. By J. S. Manley, Deputy Clerk. 
Robert T. Devlin, U. S. Atty. (Tr., 57). 

Thereafter, on the 2d day of May, 1905, the Gov- 
ernment's motion to strike the defendant's said plea of 
misnomer from files came on regularly to be heard by 
the Court, and the same having been argued and sub- 
mitted and duly considered by the Court, it was by 
the Court ordered that said motion be sustained and 
granted ; whereupon the defendant then and there duly 
excepted to the ruling of the Court thereon (Tr., 58). 

Thereafter on May 2, 1905, the defendant de- 
murred to said indictment, of which said demurrer the 
following is a copy (Tr., 58-62) : 



*3 

"In the United States District Court, in and for the 
Northern District of California. 

"No. 4271. 

"THE UNITED STATES OF AMERICA, 



"vs. 
"B. BROOKS LEE, 



Plaintiff, 



Defendant. 



"DEMURRER TO INDICTMENT. 

"The defendant in the above-entitled action having 
heretofore made and filed his motion to quash and dis- 
miss the indictment filed against him herein, and said 
motion having come on regularly to be heard, and the 
Court having overruled said motion, to which ruling 
the defendant has excepted, said defendant further ap- 
pearing in said cause and without admitting any of the 
allegations set forth in said indictment, does hereby file 
this his demurrer to said indictment, and as grounds of 
demurrer specifies: 

"I. That said indictment does not state facts suf- 
ficient to constitute an offense. 

"II. That said indictment does not state facts suf- 
ficient to constitute an offense under section 3893 of the 
Revised Statutes of the United States, as amended by 
Act of Congress of September 26th, 1888. 



"III. That said indictment is multifarious, in this: 
it appears therefrom that said defendant is charged 
with the commission of two offenses under section 3893 
of the Revised Statutes of the United States, as amend- 
ed by Act of Congress September 26, 1888; that said 
indictment consists of but one count and said two of- 
fenses are set forth in said one count, whereas said of- 
fenses should be separately stated in separate counts, if 
at all. That is to say, there is a charge that the defend- 
ant in the manner specified in said indictment gave in- 
formation, where and how, and of whom, and by what 
means divers articles and things designed and intended 
for the prevention of conception might be obtained, 
and also a charge that in the manner specified in said 
indictment the defendant gave information where and 
how, and of whom, and by what means divers articles 
and things intended for the procuring of abortion 
might be obtained. 

'TV. That said indictment is double and charges 
more than one offense without stating the same in sep- 
arate counts, in this: 

"1st. An offense of giving information in the man- 
ner alleged in the indictment where and how, and of 
whom, and by what means, divers articles and things 
designed and intended for the prevention of conception 
might be obtained, and 

"2d. An offense for giving information in the man- 
ner alleged in said indictment where and how, and of 
whom and by what means divers articles and things 



is 

designed and intended for the procuring of abortion 
might be obtained. 

"V. That said indictment does not state facts suf- 
ficient to constitute the offense of giving information 
to the person therein named, or to any person, where 
and how, and of whom, and by what means divers ar- 
ticles and things designed and intended to prevent con- 
ception might be obtained, for said written letter does 
not contain any statement referring to any article or 
thing designed or intended to prevent conception or 
for the procuring of abortion. 

"VI. Defendant further demurs to said indictment 
on the ground of duplicity, in that said indictment 
charges in one count two distinct offenses under section 
3893 of the Revised Statutes of the United States, as 
amended by Act of Congress, September 26, 1888. 

"VII. That said indictment is uncertain, in this: 
that it states that said written letter, alleged to have 
been deposited by the defendant in the postoffice estab- 
lishment of the United States gave information where 
and how, and of whom, and by what means, divers ar- 
ticles and things designed and intended for the pre- 
vention of conception or for the procuring of abortion 
might be obtained, but it fails to state what articles or 
things for such purpose might be obtained; and said 
alleged offenses are not charged with precision and 
certainty in not showing what the articles or things 
were, or how or in what manner the same were to be 



i6 

used, nor does it allege that the defendant intended the 
same to be used for either of the purposes alleged. 

"VIII. The said indictment is ambiguous, in this: 
that it fails to state what articles or things were to be 
furnished or used, or the manner of their use, in order 
to accomplish either the prevention of conception or 
the procuring of abortion. 

"IX. That the said indictment is void and insuf- 
ficient in point of law, in this: that said indictment 
does not contain any subject matter, or the copy or de- 
scription of any letter alleged to have been deposited in 
the postoffice establishment of the United States by the 
defendant, giving any information where, or from 
whom, the said contraband articles and things therein 
mentioned, could be obtained or made, but that the 
copy of the letter alleged to have been deposited in the 
postoffice establishment of the United States by said 
defendant, as alleged in said indictment, contains no 
subject matter in violation of the laws or postal regula- 
tions of the United States, or of the section of the Re- 
vised Statutes of the United States, hereinabove par- 
ticularly referred to, and purports to be an answer to 
a letter alleged to have been written by the defendant 
to the person therein mentioned, but that no copy of 
said original letter constituting the real basis of said 
indictment and said charge, and to which the letter set 
forth in said indictment alleged to have been so deposit- 
ed by said defendant, is an answer, is contained or de- 



17 

scribed in, or in any manner made a part of, said in- 
dictment, as by law required. 

"Wherefore, defendant asks that this demurrer be 
sustained and the indictment dismissed. 

"LOUIS P. BOARDMAN, 

"Attorney for Defendant." (Tr. 58-62.) 

[Endorsed]: Filed May 2d, 1905. Jas. P. Brown, 
Clerk. By J. S. Manley, Deputy Clerk. 

On the 2d day of May, 1905, the Court made an or- 
der overruling the demurrer of the defendant to the 
indictment. To which ruling the defendant then and 
there duly excepted (Tr., 63). 

On the 2d day of May, 1905, the defendant stood 
mute, relying upon his plea of misnomer, and the 
Court entered the plea of not guilty to said indictment 

(Tr.,63). 

On the 15th day of May, 1905, this case came on for 
trial (Tr., 63.) 

A jury was impaneled and evidence taken (Tr., 63- 
111). The Court thereupon charged the jury (Tr., 
111-113). The jury on the same day returned a ver- 
dict, "We, the jury, find B. Brooks Lee, alias R. 
Brooke Sterling, the prisoner at the bar, guilty as 
charged" (Tr., 113), to which verdict, the defendant 
then and there excepted (Tr., 114) and thereupon a 
motion for a new trial was made on the grounds that 
errors were committed in the ruling of the Court at 
the trial; that the evidence was wholly insufficient to 



i8 

justify the verdict in the action. That the verdict was 
against law to the extent that there exists a fatal vari- 
ance between the proofs therein and the allegations 
contained in said indictments (Tr., 114-115). 

On May 29, 1905, defendant's said motion for a new 
trial was argued and submitted and denied, to which 
ruling the defendant then and there excepted. And, 
thereafter, on the 29th day of May, 1905, the defend- 
ant filed his motion, praying that the judgment on 
the aforesaid verdict be arrested (Tr., 115). 

This motion was made upon various grounds as fol- 
lows (Tr., 116-118) : 

"1. That the indictment herein does not state facts 
sufficient to constitute an offense, and charges no 
crime; 

"2. That said indictment does not state facts suffi- 
cient to constitute an offense under Section 3893 of the 
Revised Statutes of the United States, as amended by 
Act of Congress of September 26, 1888; 

"3. That said indictment is double, charges more 
than one offense without stating the same in separate 
counts, and is null and void by reason of such duplic- 
ity; 

"4. That said indictment is w r holly insufficient to 
state a crime, in that it does not show nor is it alleged 
therein, and it does not appear therefrom, what arti- 
cle or thing is meant or referred to in said indictment, 
or in the letter or card set forth therein, and no arti- 
cle or thing whatever is mentioned in said indictment 



19 

or the said letter or card therein contained, concern- 
ing which any letter or card containing any informa- 
tion relative thereto and sent through the mails or 
deposited in the United States Postoffice, would con- 
stitute any violation of said Section 3893 of the Re- 
vised Statutes of the United States, or any crime what- 
ever; 

"5. That there is a fatal variance between the 
proofs and the allegations contained in said indict- 
ment; 

"6. That said indictment is multifarious, in this: 
it appears therefrom that said defendant is charged 
with the commission of two offenses under Section 
3893 of the Revised Statutes of the United States, as 
amended by Act of Congress, September 26, 1888; 

"7. That it appears from the record herein that 
the plea of misnomer to said indictment made, en- 
tered and filed by the defendant in this action was 
and is good and sufficient, and well founded in point 
of law, and that the order of the Court striking said 
plea from the records and files herein, was without 
power or jurisdiction of the Court so to do, and con- 
trary to law; 

"8. That the trial of defendant, and the verdict 
herein were and are without jurisdiction, and void, 
and the Court has no power, authority or jurisdiction 
to enter any judgment herein or pass sentence upon 
defendant, for the reason that no valid plea of de- 
fendant to the merits of said indictment, upon which 



20 

to base an issue of fact for trial before a jury, was at 
any time made or entered by the defendant herein. 

"Wherefore, defendant prays that judgment herein 
may be arrested, and that he go hence according to 
law. 

"Dated May 29, 1905. 

"LOUIS P. BOARDMAN, 

"Attorney for Defendant." 

Which motion in arrest of judgment is endorsed: 
Filed May 29, 1905. Jas. P. Brown. By J. S. Manly, 
Deputy Clerk. 

The Court having heard said motion in arrest of 
judgment, on said 2Qth day of May, IQ05, made an 
order on said day denying said motion, to which order 
denying said motion in arrest of judgment the de- 
fendant by his counsel then and there duly excepted. 

Thereupon, on the 29th day of May, 1905, the Court 
entered its judgment on the verdict of guilty (Tr., 1 19- 
120), sentencing the defendant to pay a fine of Five 
Hundred Dollars ($500), and in default of payment of 
said fine to be imprisoned until said fine be paid or until 
he be otherwise discharged by due process of law, and 
that the judgment of imprisonment be executed upon 
said B. Brooks Lee, alias R. Brooke Sterling, by im- 
prisonment in the County Jail of the City and County 
of San Francisco, State of California (Tr., 120). At 
the time of the pronouncing of said judgment the de- 



21 

fendant, by his counsel, excepted thereto and to each 
and every division and portion thereof (Tr., 120). 

Thereafter, Wm. H. H. Hart was substituted as at- 
torney (Tr., 121), bill of exceptions prepared, writ of 
error granted to this Court, and the same is regularly 
reached for consideration. 

In preparing this brief I have copied the foregoing 
from the record for the purpose of enabling the Court 
to see the record and the errors complained of with- 
out referring to the Transcript, and thus save the time 
of the Court. 

The statements in the papers copied point out the 
errors complained of by the plaintiff in error and it 
will not be necessary to reiterate the same or call the 
Court's attention specifically to each one other than 
as aforesaid set forth. 

POINTS AND AUTHORITIES. 

First: The plea of misnomer — demurrer thereto 
and motion to strike plea of misnomer from files. 

The plea of misnomer filed April 19th, 1905 (Tr., 
54) was a good and sufficient plea. 

The demurrer of the government filed April 20th, 
1905 (Tr., 56) was heard on April 28th, 1905 (Tr., 56) 
and was overruled on the same day. Thereupon the 
question of identity as between R. Brooke Sterling and 
B. Brooke Lee on the one part and Benjamin Brooks 



22 

Lee on the other part was a matter to be determined 
and settled by a jury to be called for that purpose. 

Allen vs. Ogden, 12 Vermont, page 12. 
Seibert vs. State, 95 Indiana, 472. 
Commonwealth vs. Coponi, 155 Mass., 534. 

The Supreme Court of the United States in the case 
of West vs. Cabell, 153 U. 8., 85, at page 85, held: 

"By the common law a warrant for the arrest of 
a person charged with crime must truly name him, 
or describe him sufficiently to identify him. If it 
does not the officer making the arrest is liable to an 
action for false imprisonment; and if, in attempting 
to make the arrest the officer is killed, this is only 
manslaughter in the person whose liberty is invad- 
ed." (Citing authorities.) "Likewise, a warrant of 
arrest in a civil action, which does not name or de- 
scribe the person to be arrested, is no justification 
of the officer." (Citing authorities.) 

And again, at page 86 of the same opinion, the Court 
said: 

"The principle of the common law, by which 
warrants of arrest, in cases criminal or civil, must 
specifically name or describe the person to be ar- 
rested, has been affirmed in the American Constitu- 
tions; and by the great weight of authority in this 
country a warrant that does not do so will not jus- 
tify the officer making the arrest." * * * 



23 

And again, at page 87, the Court further said: 

"The 4th article of amendment of the Constitu- 
tion of the United States declares that 'the right of 
the people to be secure in their persons, houses, pa- 
pers and effects, against unreasonable searches and 
seizures shall not be violated; and no warrant shall 
issue, but upon probable cause, supported by oath 
or affirmation, and particularly describing the place 
to be searched and the persons or things to be 
seized.' 

"The provision of Section 1014 of the Revised 
Statutes, which authorizes an offender against the 
laws of the United States to be arrested and impris- 
oned or bailed, by a Judge of the United States or a 
Commissioner of the Circuit Court, in any State 
where the offender may be found, 'and agreeably to 
the usual mode of process against offenders in such 
State,' is necessarily subordinate to the declaration 
of the Constitution that all warrants must particu- 
larly describe the person to be seized." * * * 

"In the case at bar the effect of the ruling and in- 
structions of the Court was to give the jury to un- 
derstand that the private intention of the magistrate 
was a sufficient substitute for the constitutional re- 
quirements of a particular description in the war- 
rant. For this reason the judgment is reversed, and 
the case remanded with directions to set aside the 
verdict and to order a new trial." 

The warrant in the case at bar no doubt followed the 
indictment, and for the facts pointed out by the plea of 



24 

misnomer the Court should have submitted the question 
to the jury independent of a trial on the merits. 

The government's demurrer (Tr., 56) took issue 
with the plea of misnomer filed by the plaintiff in error 
on the ground that said plea did not set forth facts suffi- 
cient to constitute a plea of misnomer; the same was ar- 
gued eight (8) days after filing the same, and the Dis- 
trict Court held that the plea was good and overruled 
the demurrer. That ruling was never set aside, and 
therefore is still in force. The fact that the government 
thereafter, on April 29th, 1905, filed a motion to strike 
the plea of misnomer from the files ought not to be con- 
sidered as proper, for the government^ by filing its de- 
murrer as aforesaid, waived its right to file a motion 
to dismiss on the ground that the plea was not filed in 
time, the government claiming that the motion to quash 
the indictment filed April 1st, 1905 (Tr., 48-53), which 
was denied on April 15th, 1905 (Tr., 53-54) was a 
waiver of the right of the plaintiff in error to file the 
plea of misnomer. I contend such is not the case; a 
motion to quash the indictment is not answering to the 
merits of the indictment, and is in the nature of a de- 
mand for a bill of particulars. 

In the case of Oates vs. Clendenard, 87 Ala., 735, it 
is held that a demand for a bill of particulars should 
not be held a waiver of the defense of misnomer. A 
notice of such a demand is not a plea nor in any sense 
a defense on the merits. It is, at most, a step prepara- 



25 

tory to defense, should the same become necessary under 
the rulings of the Court on the plea in abatement. 

In Elliott vs. Hart, 7 How., Pr. (N. Y. Supreme 
Court), 25, it was held that a misnomer of the defend- 
ant could be taken advantage of by motions to set 
aside the summons and complaint, and that, as it was 
doubtful whether, under the Code, there was any rem- 
edy for such a defect by answer, there should be some 
remedy. 

I respectfully submit that the District Court erred in 
sustaining the government's motion to strike the plea of 
misnomer from the files ; to this action on the part of the 
Court, which occurred on May 2nd, 1905, the defend- 
ant then and there duly excepted (Tr., 58), in conse- 
quence of which no trial has ever been had on the plea 
of misnomer, and for this reason the case should be re- 
versed. 

Second: The motion to quash the indictment should 
have been sustained. 

The grounds specified in the motion to quash, set 
aside and dismiss the indictment are set forth in this 
brief and in the Transcript at pages 48 to 53, inclusive. 
This motion was filed on April 1st, 1905 (Tr., 53) and 
was on said day argued and submitted (Tr., 53), and 
thereafter, on April 15th, 1905, the motion was denied, 
to which ruling the defendant (now plaintiff in error) 
then and there duly excepted (Tr., 54). The action of 
the District Court in this matter is assigned as an error 



26 

under paragraph i in the assignment of errors (Tr., 
28), and I submit the District Court committed error 
in not granting said motion, for it appears from the in- 
dictment (Tr., 45-47) that B. Brooke Lee, alias R. 
Brooke Sterling, was therein and thereby accused of 
two offenses in and by depositing in the postofHce estab- 
lishment of the United States in said district a certain 
letter, which it is alleged said written letter then and 
there gave information where and how, and of whom, 
and by what means divers articles and things designed 
and intended for the prevention of conception and for 
the procuring of abortion might be obtained; this 
charges two offenses, one for the prevention of concep- 
tion and the other for the procuring of abortion. 

Then, again, said indictment is subject to the objec- 
tions raised by the motion in that the letter copied in 
said indictment refers to another letter which the indict- 
ment does not set forth, and no excuse for not setting the 
same forth; nor does said indictment specify what the 
articles or things were, or by what means said articles 
or things were to be used, or how used, and that said in- 
dictment was multifarious, and the same was found by 
a grand jury called and impaneled previous to the time 
of the alleged commission of the alleged offense set 
forth in said indictment, and that by reason thereof the 
plaintiff in error did not have an opportunity to chal- 
lenge said Grand Jury or its formation, or an opportun- 
ity to challenge the individual members thereof, and 
that said letter set forth in said indictment did not and 



27 

does not set forth by any language which would indicate 
or point out or designate or give any information where 
and how or of whom or by what means divers articles 
and things designed and intended for the purposes men- 
tioned in said indictment could be obtained; and said 
indictment shows that said letter copied therein pur- 
ports to be an answer to a letter said to have been 
written by said Jennie Meredith, and does not set forth 
said letter of said Jennie Meredith, and fails to show 
any reason for not setting forth said letter. For these 
reasons, I think the motion to quash and set aside said 
indictment on the various grounds set forth in said mo- 
tion should have been granted, and the action of the 
trial Court in its adverse ruling on said motion is as- 
signed as error as specified in paragraph i of the as- 
signment of errors (Tr., 28-29). 

There being two offenses charged in the indictment, 
they should have been set forth in separate counts. (See 
authorities cited under "Third," next subdivision of 
this brief.) 

Third: The demurrer to the indictment should 
have been sustained (Tr., 15-19; 58-62). 

Section 3893 of the Revised Statutes of the United 
States as amended September 26th, 1888, so far as it 
applies to the case at bar, reads as follows: 

"Every * * * letter, and every article or 
thing designed or intended for the prevention of 
conception, or the procuring of abortion * * * 



28 

and every written * * * letter of any kind giving 
information, directly or indirectly, where or how or 
of whom, or by what means, any of the hereinbefore 
mentioned matters, articles or things may be ob- 
tained or made, whether sealed as first-class matter 
or not, are hereby declared to be non-mailable mat- 
ter and shall not be conveyed in the mails, nor deliv- 
ered from any Postoffice, nor by any letter carrier; 
and any person who shall knowingly deposit, or 
cause to be deposited for mailing or delivery, any- 
thing declared by this section to be non-mailable 
matter, * * * or of aiding in the circulation 
or disposition of the same, shall, for each and every 
offense, be fined upon conviction thereof not more 
than Five Thousand Dollars, or imprisoned at 
hard labor for not more than five years, or both, at 
the discretion of the Court." 

The Court will notice that the gist of the offense con- 
sists of the mailing of the letter and depositing the 
same in the Postoffice establishment of the United 
States, giving information either directly or indirectly 
where or how or of whom articles or things designed 
or intended for the prevention of conception or the pro- 
curing of abortion, and that the form of the statute is 
such that if a party should give information where the 
article or thing so designed or intended for the preven- 
tion of conception would constitute an offense, or if you 
did the same thing in reference to an article or thing 
designed or intended for the procuring of an abortion 



29 

would also be an offense. In other words, the language 
of the section in this regard creates two offenses. 

Now turning to the indictment in question, a perusal 
of the letter contained therein does not disclose or set 
forth that any article or thing was intended to accom- 
plish either purpose or either condition under the stat- 
ute. It is true the letter says: 

"Dear Miss: 

"In answer to yours of the 2nd inst. will say that 
upon receipt of $10.00 from you I will send per ex- 
press necessary treatment with full instructions. 
"Respectfully, 
"R. BROOKE STERLING, M. D., 

"per L." 

Now, there is nothing at all designated in this let- 
ter nor in the indictment to show w 7 hat these articles 
or things were or what they were intended for. It is 
not sufficient for the government to charge that the let- 
ter then and there gave information where and how 
and by whom and by what means divers articles and 
things designed and intended for the prevention of 
conception and the procuring of abortion might be ob- 
tained, because the Court will notice that it is the letter 
itself which must contain the information where and 
how and of whom and by what means divers articles 
and things, etc., can be obtained. In other words, the 
indictment by its language cannot supply a substan- 
tive basis and necessary ingredient of the offense. 



3o 

These must be contained in the letter and it is so de- 
clared by the statute aforesaid cited. 

When the pleader in behalf of the government un- 
dertook to include both offenses in the indictment, he 
should have been specific enough to have set them forth 
in separate counts, and in order to have in said counts 
or in said indictment sufficient to show an offense, it 
was necessary for the pleader to set forth the facts, at 
least sufficient facts, to show that the alleged defendant 
had committed one of the offenses under the statute. 
The letter pleaded is innocent upon its face, and if, in 
fact, it was not innocent, that fact could only be shown 
in the indictment by including therein the letter which 
was written by Miss Jennie Meredith to the alleged 
defendant; then if the language in her letter was of 
such import that when construed in connection with 
the answer an offense was committed, then it would be 
for the Court to so determine whether upon the two let- 
ters the alleged defendant had committed the offense, 
or one of the offenses provided for by Section 3893 as 
cited, and the failure to insert her letter, in order to un- 
derstand the meaning of the alleged defendant's letter, 
cannot be supplied by the allegations contained in said 
indictment. In other words, the offense must appear 
from the language used in the two letters when the lan- 
guage in the letter set forth in the indictment is not of 
itself sufficient to constitute an offense, and as the other 
letter to which it is an answer is not inserted in the in- 



3i 

dictment, it is not for the Court to say that an offense 
was committed, for the letter contained in the indict- 
ment is of itself innocent, for no article or thing is there- 
in described or referred to that would consummate 
either of the results mentioned in this section. We 
therefore contend that the indictment is subject to all 
of the objections made and specified in the demurrer to 
the indictment and that the demurrer should have 
been sustained by the lower court. 

Fourth. The motion for new trial (Tr., 114-115) 
should have been granted. 

The Court should have granted a new trial for and 
on account of the errors committed by the Court as as- 
signed in specifications 1, 3, 4, 5, 6, 7 ,8, 9, 10, n, 12, 
13) H, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 of the 
assignment of errors (Tr., 28-39). 

Fifth. The motion to arrest the judgment (Tr., 1 16- 
118) should have been sustained. 

We consider that the argument and observations 
made in the former points herein show conclusively 
that the motion in arrest of judgment should have 
been sustained for the grounds in said motion specified. 

Sixth. Assignment of errors (Tr., 28-39). 

The assignment of errors in this case are specific and 
sufficient to raise all the points against the indictment 
proceedings and trial in this case, and for the errors so 






32 

assigned and committed as aforesaid referred to, I re- 
spectfully submit that the judgment should be reversed 
and the defendant discharged, or that a new trial should 
be granted. 

WM. H. H. HART, 
Attorney for Plaintiff in Error. 
925 Golden Gate Avenue, San Francisco, California. 



No. 1306 



IN THE 



7 



United States Circuit Court of Appeals 



For the Ninth Circuit. 



B. BROOKS LEE, 



Plaintiff in Error, 



vs. 



THE UNITED STATES OF AMERICA, 

Defendant in Error. 



BRIEF FOR DEFENDANT IN ERROR, 



Robert T. Devlin, 

United States Attorney, 

Benjamin L. McKinley, 

Assistant United States Attorney, 

Attorneys for Defendant in Error. 



Filed this. 



By. 



day of August, A. D. 1907. 

FRANK D. MONCKTON, Clerk- 

■ ■;- —i Deputy Clerk. 



PBBNAU PUBLISHING CO. 



No. 1306 

IN THE 

United States Circuit Court of Appeals 

For the Ninth Circuit. 



B. BROOKS LEE, 

Plaintiff in Error, 

vs. 

THE UNITED STATES OF AMERICA, 

Defendant in Error. 



BRIEF FOR DEFENDANT IN ERROR 



Counsel for plaintiff in error has set forth his 
" Statement of Facts" at great length in his brief 
(pp. 1-21), and we shall not consume space in repe- 
tition, but shall only quote from the record in the 
case when it is deemed necessary. Taking up coun- 
sel's "Points and Authorities" (pp. 21 et seq. of his 
brief) , we shall consider the matters therein treated 
in the order in which they appear. 



The first point considered arises upon the plea of 
misnomer filed by plaintiff in error in the court be- 



2 



low, which was stricken from the files by said court 
upon the ground stated in the motion of the Govern- 
ment to strike the same from the files "that said plea 
" was not presented to the court at the proper time, 
" and that the right of said defendant to file said 
" plea was waived by his previous motion to quash 
"the indictment herein" (p. 57, Trans. Rec). In 
discussing the plea of misnomer it must be borne in 
mind that such a plea being a dilatory plea, is not 
favored by the courts, and must therefore be correct 
in form and substance and be filed at the proper 
time, otherwise it will not be considered. 

"A ground of abatement existing at the com- 
mencement of an action, and not going to the 
jurisdiction of the court over the subject-mat- 
ter, must be interposed, at common law, where it 
is not waived by appearance, before pleading to 
the merits, or it will not be available. As a gen- 
eral demurrer is considered as a plea to the 
merits, it follows that a defendant cannot plead 
such matter in abatement after filing a general 
demurrer. ' ' 

Cyc, Vol. I, pp. 130-131, and cases cited. 

In the case at bar, not only was the plea of mis- 
nomer filed after a plea to the merits in the shape of 
a Motion to Quash, Set Aside, and Dismiss the In- 
dictment, but in that very Motion to Quash said in- 
dictment, filed April 1st, 1905, eighteen days before 
the filing of the plea of misnomer, occurs the follow- 
ing language (p. 48, Trans. Rec.) : 



"In the District Court of the United States, in and 
for the Northern District of California. 

No. 4271. 



The United States of America, 

Plaintiff, 

vs. 

B. Brooks Lee, 



Defendant. 



" Motion to Quash, Set Aside and Dismiss the 
Indictment in the Above-Entitled Case. 
" Now comes the defendant above named , by Louis 
" P. Boardman, his attorney, and objects to the in- 
" dictment in the above-entitled action, and moves 
" the Court to quash, set aside and dismiss said in- 
" dictment upon the following grounds, to wit:" 

It will thus be seen that, eighteen days before 
filing his plea of misnomer, the defendant in so 
many words admitted that his name was B. Brooks 
Lee. The plea of misnomer (pp. 54-55, Trans. 
Rec.) seeks to deny that defendant w^as ever known 
by the Christian name of U B. Brooks" or by the 
alias name of "R. Brooke Sterling". After hav- 
ing caused the Court to examine the indictment as 
to its sufficiency, upon the motion to quash, and 
after having obtained an adverse ruling upon that 
motion, it was too late to urge a plea of misnomer, 
especially after having, in said motion to quash, ad- 
mitted that his true name was "B. Brooks Lee". 



In the case of Lowdon v. United States, 149 Fed. 
673, the Circuit Court of Appeals for the Fifth Cir- 
cuit decided that a plea in abatement attacking an 
indictment by reason of some irregularity in the 
drawing of the Grand Jury, came too late when 
filed nineteen days after the return of the indict- 
ment. 

In the case of Agnew v. United States, 165 U. S. 
36, 41 L. Ed. 624, the Supreme Court of the United 
States held that a plea in abatement alleging certain 
irregularities in drawing Grand Jurors, filed two 
weeks after the Court opened, and five days after 
the indictment was returned, was too late where it 
did not allege any reason for the delay. 

In the case of United States v. Greene, 113 Fed. 
683, it was held that where defendants by unneces- 
sarily resisting the processes of the Court, and re- 
sorting to dilatory expedients of various kinds, 
have delayed the trial for more than two years, they 
had waived their right to plead in abatement. 

A plea to an indictment because of improper 
drawing of Grand Jury, must be taken as soon as 
practicable. 

Harrington v. State, 83 Ala. 9 ; 3 South. 425. 

A plea in abatement because of misnomer, is prop- 
erly disallowed when interposed the third term after 
the arraignment of the accused, and he has pleaded 
to the indictment and asked for a continuance. 

Grimes v. State, 105 Ala. 86; 17 South. 184. 



After the overruling of a demurrer to the com- 
plaint in a Justices' Court, and appeal to the County 
Court, a plea in abatement on the ground that the 
person who preferred the complaint and who acted 
as a Grand Juror, was not a Grand Juror, comes too 
late. 

Smith v. State, 19 Conn. 493. 

A plea in abatement must be taken before a plea 
in bar. 

Ellis v. State, 25 Fla. 702; 6 South. 768. 

An order striking out a plea in abatement in a 
criminal case, will not be disturbed unless it affirm- 
atively appears that it was filed before arraignment. 
Mosley v. State, 74 Ga. 404. 

Where a defendant waives arraignment, or, when 
arraigned, fails to give his right name, he cannot 
afterwards object that -he was not indicted by his 
right name. 

State v. Winstrand, 37 la. 110. 

A plea in abatement because of the misnomer of 
defendant, is waived by the subsequent interposi- 
tion of a demurrer or other plea, which in effect ad- 
mits that defendant is the person charged. 
Haley v. State, 63 Ala. 89. 

Bearing in mind the holding of the last mentioned 
case, we find (pp. 58-62, Trans. Rec), that defend- 
ant's counsel in the Court below after the plea of 
misnomer had been disposed of, filed a demurrer to 



the indictment which was entitled in the same man- 
ner as the Motion to Quash hereinbefore referred to. 
This demurrer recites that 

" The defendant in the above-entitled action hav- 
ing heretofore made and filed his motion to 
quash and dismiss the indictment filed against 
him herein, and said motion having come 
on regularly to be heard, and the Court having 
overruled said motion, to which ruling the de- 
fendant has excepted, said defendant further ap- 
pearing in said cause and without admitting any 
of the allegations set forth in said indictment, does 
hereby file this his demurrer to said indictment, 
and as grounds of demurrer specifies:" etc. 

Here again the defendant pleads to the indictment 
under the name by which he is indicted; and it is 
significant that while in the demurrer he makes ref- 
erence to the motion to quash and dismiss, which 
has heretofore been noticed, and to his exception to 
the order denying said motion, he makes no refer- 
ence whatever to the plea of misnomer which has 
just been disposed of, indicating that he does not 
desire at that time to further rely upon said plea. 

On the general proposition that pleas in abate- 
ment are waived if not filed at the earliest practi- 
cable moment, see also the cases of 

McQuillen v. State, 16 Miss. (8 Smedes & M.) 

587; 
State v. Farr, (S. C.) 12 Rich. L. J. 24; 
United States v. Gale, 109 U. S. 65; 27 L. Ed. 
857. 



For still another reason, the striking of the plea 
of misnomer from the files in this case cannot avail 
to disturb the judgment herein. There is no allega- 
tion in the plea that any prejudice to the defendant 
has been caused by his indictment under the names 
mentioned, and an examination of the record shows 
that no prejudice could have resulted because the 
testimony afterwards taken in the case, shows af- 
firmatively that the plea of misnomer was in fact 
false, for the reason that the defendant was actually 
known by the name of "R. Brooke Sterling", the 
" alias" name which is used in the indictment (p. 82, 
Trans. Rec). 

On page 24 of Brief of Plaintiff in Error, counsel 
contends that the Government, by demurring to the 
plea of misnomer, waived the right to move to strike 
it from the files. No authority is cited for such a 
position, because in fact no such authority exists. 
We might answer counsel by observing that no such 
reason was urged in the Court below against the 
motion to strike from the files, and it cannot there- 
fore be urged for the first time here. However, 
even if the plea in abatement were sufficient in form, 
the right to file it was, as w 7 e have shown, waived by 
the delay of defendant in the Court below, in filing 
the same. It was not necessary, according to our 
view, that the Government should file any motion to 
strike from the files whatsoever. We believe that 
the Court, of its own motion, would have been justi- 
fied in striking this plea from the files upon the 



8 



grounds already noted. Such being the case, the 
motion to strike from the files was certainly in order 
at the time at which it was made. 

In connection with the argument on this point, we 
desire to call to the Court's attention Section 1025 
of the Revised Statutes, which provides as follows: 

"Sec. 1025. No indictment found and pre- 
sented by a grand jury in any district or circuit 
or other court of the United States shall be 
deemed insufficient, nor shall the trial, judg- 
ment, or other proceeding thereon be affected by 
reason of any defect or imperfection in matter 
of form only, which shall not tend to the preju- 
dice of the defendant." 



II. 

The next point made by counsel is on the motion 
to quash the indictment, and the first ground of ob- 
jection urged under this head is that defendant is 
accused in the indictment of two offenses in the same 
count. An examination of the indictment (pp. 12- 
14, Trans. Rec), will show that it contains a charge 
of depositing only a single letter. The gist of the 
offense charged is the depositing of certain pro- 
hibited matter in the United States mail. It might 
be conceded that if four or five letters had been 
similarly addressed, and deposited in the mails on 
four or five different days, such acts, being entirely 
separate transactions, could not be joined together 
in a single count; but in this case the indictment 



clearly charges the deposit of one letter, enclosed in 
a single envelope. The letter is set out in the indict- 
ment so that it can be certainly seen that it refers 
to but one transaction, and therefore there is but one 
charge contained in the indictment. 

It is objected that the indictment charges that the 
letter gave information as to two distinct forbidden 
subjects. It is difficult, we confess, to follow the 
reasoning of counsel, who would have this Court 
determine that because a letter may give two classes 
of information, a person who deposits it in the mails 
commits two offenses, although only one letter is 
sent. 

In the case of United States v. Hull, 14 Fed. 324, 
it is held that an indictment which charges that the 
defendant made and caused to be made a false 
voucher, certificate or claim, and that he "presented 
and caused to be presented' ' is not bad for duplicity 
because the statute employs the disjunctive "or" 
instead of "and". 

The case of United States v. Noelke, 1 Fed. 426, 
holds that a count in an indictment charging the 
mailing of a "letter and circular" in violation of 
section 3897, Eevised Statutes, is not bad for 
duplicity. 

The case of United States v. Corbin, 11 Fed. 238, 
holds that the expression "writing and affidavit" 
standing alone in an indictment, may mean two doc- 
uments, but when accompanied by a recital of the 



10 



writing and affidavit, it is clearly shown to be but 
one instrument, and the pleading is not double. 

In the case at bar, if two separate letters had been 
sent at separate times, one giving information of one 
character forbidden by the statute, and the other 
giving information of another forbidden character, 
the mailing of each of these letters would be a sepa- 
rate and distinct offense, to be charged separately 
against the defendant. But where only one letter 
is charged to have been mailed, and that letter is set 
out, showing plainly that there is but one letter re- 
ferred to, the indictment cannot be held bad for 
duplicity. 

See also United States v. Fero, 18 Fed. 901, which 
was an indictment for violation of section 5484 of 
the Revised Statutes, providing that " every person 
" who shall receive any money or other valuable 
" thing under a threat of informing, or as a consid- 
" eration for not informing, against any violation 
" of any Internal Revenue Law, shall, on conviction 
" thereof, be punished", etc. On a motion for ar- 
rest of judgment, on the ground that the indictment 
charging the violation of the statute is bad for du- 
plicity in that it alleges that the defendant received 
money " under a threat of informing, and as a con- 
" sideration for not infomiing", against a party 
who had violated the Revenue Law, it being argued 
that two independent offenses are charged, that of 
receiving money " under a threat of informing", and 
also receiving mone}^ as a consideration for not in- 



11 



forming: Held, that in this case, the two offenses 
as alleged, siiould be regarded as successive acts in 
one transaction, thus making really but one offense, 
and hence that the pleading was good. Where a 
statute makes either of two or more distinct acts con- 
nected with the same offense, and subject to the 
same measure and kind of punishment, indictable 
separately and as distinct crimes when committed 
by different persons, or at different times, they may, 
when committed by the same person, at the same 
time, be coupled in one count as constituting one 
offense. The court in the above case cites also the 
case of Byrne v. State, 12 Wis. 577. 

In the case of United States v. Byrne, 44 Fed. 188, 
it was held that although under Section 5467, Re- 
vised Statutes, "embezzling a letter" and "stealing 
its contents" are separate offenses and may be 
charged as such, the offenses are of the same grade, 
and subject to the same penalty, and hence they may 
both be charged in a single count of the indictment, 
stating the latter transaction as a single offense 
when both acts are committed by the same person at 
the same time, and constitute a single continuous act. 

From the above observations and citations, it will 
be readily seen that this indictment is not bad for 
duplicity. 

The next point urged under the second subdivi- 
sion of counsel's brief with reference to the motion 
to quash, is that the indictment is subject to the ob- 
jection that the letter copied in the indictment refers 



12 



to another letter which the indictment does not set 
forth, and no excuse is given for not setting it forth. 
The statute under which this indictment is drawn, 
Section 3893 of the Eevised Statutes, as amended by 
the Act of September 26th, 1888, provides, in sub- 
stance, that every letter giving information directly 
or indirectly, where, or how, or of whom, or by what 
means any of the matters, articles or things men- 
tioned in the statute may be obtained or made, 
whether sealed as first class matter or not, are de- 
clared to be non-mailable matter and shall not be 
conveyed in the mails, nor delivered from any Post 
Office nor by any letter carrier. And it is further 
provided that 

"any person who shall knowingly deposit or 
cause to be deposited for mailing or delivery, 
anything declared by this section to be non-mail- 
able matter, * * * shall, for each and" every 
offense, be fined, upon conviction thereof, not 
more than five thousand dollars, or imprisoned, 
at hard labor, for not more than five years, or 
both, at the discretion of the court." 

The depositing of the letter in the mails, then, is 
the offense denounced by the statute, and it is utter 
nonsense to contend that because some other person 
wrote to the defendant a letter, to which the one 
charged in the indictment is an answer, the first let- 
ter should be set forth in the indictment. No 
authority is cited by counsel for this strange propo- 
sition. We had supposed that the only acts with 
which a man could be charged were those which 



13 



were committed by himself, or at his instigation. 
No charge could be based upon the fact that defend- 
ant received a letter requesting certain forbidden 
information. His only offense would consist in 
imparting the information by means of the mails. 
The indictment, we submit, sufficiently charges that 
he did so impart such information, and therefore is 
sufficient under the statute. In fact, we contend 
that if the letter or notice consisted simply of a name 
or an address which would be without meaning to a 
third person, if it were shown that such name and 
address was intended to convey the information for- 
bidden by such statute by means of the mail, the 
charge would be made out. 

The other points raised by counsel under the sec- 
ond subdivision of his brief, are not discussed at any 
length by him, and we do not deem it necessary to 
notice them. 



III. 

Under this head, counsel contends that the de- 
murrer to the indictment should have been sustained. 
The substance of his argument is that the letter 
which is set forth in the indictment, being innocent 
on its face, further words should have been added to 
show how such a letter could have given the infor- 
mation which is forbidden by the statute, and which 
is charged by said indictment to have been given. 
In this connection the Court will notice that the 



14 



statute denounces the sending of any letter of any 
kind " giving information directly or indirectly, 
" where, or how, or of whom, or by what means" 
any of the things therein mentioned might be 
obtained. If this letter gave such information 
indirectly, it would be sufficient under the statute. 
No authority is cited, and none can be found, which 
holds that a pleader is obliged to set forth all his evi- 
dence in his indictment. The indictment charges 
the mailing of a specific letter. The letter is set 
forth in haec verba, and it is charged that this letter 
' ' then and there gave information where, and how, 
" and of whom, and by what means, divers articles 
" and things designed and intended", etc., might be 
obtained. That is the offense denounced by the stat- 
ute. The defendant was advised by said indictment 
that he was charged with having sent through the 
United States Post Office a certain letter enclosed in 
a sealed envelope, addressed to a certain person, both 
the letter and the address being fully set forth for 
his information ; he was further advised that this let- 
ter, the mailing of which, it is admitted by counsel 
for plaintiff in error, is the gist of the offense, gave 
certain information which was forbidden by the 
statute to be given by means of the Post Office of the 
United States. He was entitled to no further infor- 
mation. If, as admitted by counsel for plaintiff in 
error (p. 28 of his brief), the gist of the offense con- 
sists of the mailing of the letter and depositing the 
same in the Post Office establishment of the United 



15 



States, giving the information referred to, either 
directly or indirectly, then the defendant is suffi- 
ciently advised as to the charge against him when the 
letter is set out, when the fact of its mailing is suf- 
ficiently and fully charged, and when it is further 
charged that said letter gave information forbidden 
by law. We have before remarked in the discussion 
of the second point, that no authority is given for the 
proposition that the letter, to which the one charged 
in the indictment was a reply, had not been set forth. 
Our remarks under that head will apply here, and we 
think that no further discussion of the third point is 
necessary. 



IV. 

The motion for new trial is taken up under this 
head and counsel contents himself with the mere 
statement that it should have been granted on 
account of errors committed by the Court as 
assigned in certain specifications. It has been held 
over and over again by this Court, by the Supreme 
Court of the United States, and by Federal Courts 
in almost every jurisdiction in the United States, 
that the refusal to grant a new trial is not assignable 
as error. We therefore content ourselves with that 
observation. 



16 



We believe that this disposes effectually of all of 
the contentions urged on behalf of plaintiff in error, 
and we respectfully submit that judgment herein 
should be affirmed. 

Respectfully, 

Robert T. Devlin, 

United States Attorney, 

Benjamin L. McKinley, 

Assistant United States Attorney, 

Attorneys for Defendant in Error. 



No. 1306 



IN THE 

Htttfrft j^tafra (Etrortt Court of Appeala 

FOR THE NINTH CIRCUIT 



B. BROOKS LEE, 

Plaintiff in Error, 



THE UNITED STATES OF AMERICA, 

Defendant in Error. 



PETITION FOR REHEARING. 



WM. H. H. HART, 

Attorney for Plaintiff in Error. 



Filed this day of December, 1907. 

FRANK D. MONCKTON, Clerk. 

By — Deputy Clerk. 

-GEORGE ARMSTRONG, Printer 



.FILED, 

DEC - 5 1307 



IN THE 



Unit? h States Ctrrmt (Eourt at Appeals 

F"OR THE NINTH CIRCUIT 



B. BROOKS LEE, 

Plaintiff in Error, 
vs. 

No. 1306 
THE UNITED STATES OF AMER- 
ICA, 

Defendant in Error. 



PETITION FOR REHEARING. 

To the Honorable Judges of the United States Circuit 
Court of Appeals for the Ninth Circuit, and to said 
Court : 

Said plaintiff in error prays that a rehearing and 
new trial be granted him in this case on the following 
grounds : 

I. 

That the Honorable District Court erred in over- 
ruling the demurrer of said plaintiff in error to the in- 
dictment. 

A copy of the demurrer is in the record, pages 58-62. 

Among the specifications in the demurrer of the in- 
sufficiency of the indictment are the following: 



"I. That said indictment does not state facts suf- 
ficient to constitute an offense. 

"II. That said indictment does not state facts 
sufficient to constitute an offense under Section 3893 
of the Revised Statutes of the United States, as 
amended by Act of Congress of September 26th, 
1888. 

"V. That said indictment does not state facts 
sufficient to constitute the offense of giving informa- 
tion to the person therein named, or to any person, 
where and how, and of whom, and by what means 
divers articles and things designed and intended 
to prevent conception might be obtained, for said 
written letter does not contain any statement refer- 
ring to any article or thing designed or intended to 
prevent conception or for the procuring of abortion. 

"VII. That said indictment is uncertain, in this: 
that it states that said written letter, alleged to have 
been deposited by the defendant in the Post Office es- 
tablishment of the United States, gave information 
where and how, and of whom, and by what means, 
divers articles and things designed and intended 
for the prevention of conception or for the procur- 
ing of abortion might be obtained, but fails to state 
what articles or things for such purpose might be 
obtained; and said alleged offenses are not 
charged with precision and certainty in not showing 
what the articles or things were, or how or in what 
manner the same were to be used, nor does it allege 
that the defendant intended the same to be used for 
either of the purposes alleged. 

"VIII. The said indictment is ambiguous, in 
this: that it fails to state what articles or things 



were to be furnished or used, or the manner of their 
use, in order to accomplish either the prevention 
of conception or the procuring of abortion. 

"IX. That the said indictment is void and in- 
sufficient in point of law, in this: that said indict- 
ment does not contain any subject matter or the copy 
or description of any letter alleged to have been de- 
posited in the Post Office establishment of the 
United States by the defendant, giving any infor- 
mation where, or from whom, the said contraband 
articles and things therein mentioned, could be ob- 
tained or made, but that the copy of the letter al- 
leged to have been deposited in the Post Office es- 
tablishment of the United States by said defendant, 
as alleged in said indictment, contains no subject 
matter in violation of the laws or postal regulations 
of the United States, or the section of the Revised 
Statutes of the United States hereinabove particu- 
larly referred to, and purports to be an answer to 
a letter alleged to have been written by the defend- 
ant to the person therein mentioned, but that no 
copy of said original letter constituting the real basis 
of said indictment and said charge, and to which 
the letter set forth in said indictment alleged to 
have been so deposited by said defendant, is an an- 
swer, is contained or described in, or in any manner 
made a part of, said indictment, as by law required." 

It is respectfully submitted that the objections made 
in these specifications to the indefinite character of the 
indictment and to its not stating facts sufficient to con- 
stitute an offense are well taken. 



The case of United States vs. Pupke, 133 Fed., R., 
243, is directly in point, and amply sustains the objec- 
tions to the indictment raised by the demurrer. 

The defective character of a similar indictment is 
so clearly stated in the opinion in that case, that the 
indulgence of this Honorable Court is asked for giving 
herein a somewhat lengthy extract therefrom, as fol- 
lows : * 

"The accused is charged under this section (3893, 
Rev. Stat.) after appropriate averments of time and 
place, in the following language: 'Did then and 
there unlawfully and feloniously deposit and cause 
to be deposited (in the St. Louis postoffice for mail- 
ing and delivery) a certain letter and writing giv- 
ing information to one Miss Effie Williams, where, 
how, and of whom, and by what means, an article 
or thing designed and intended for the prevention 
of conception might be obtained.' 

"The letter is then set out with appropriate aver- 
ments as to the time of its mailing and its destina- 
tion, but the letter in no wise states what the particu- 
lar article or thing consisted of. It refers to the 
fact that the accused has inclosed to the addressee a 
copy of 'Our Hydro System.' The sufficiency of 
this indictment is challenged by demurrer, and the 
point made against it is that the pleader does not 
disclose what the particular 'article or thing' is, 
about which the defendant gives information to the 
addressee. 

"The language of the section in question/already 
set out, makes 'any article or thing designed or in- 



tended for the prevention of conception' unmailable, 
and it is first made an offense against the United 
States to mail any such 'article or thing.' 

"Suppose the indictment had charged the defend- 
ant with having mailed 'an article or thing designed 
or intended for the prevention of conception,' with- 
out any specification as to what that article or thing 
was, could it be contended for a moment that the 
defendant was thereby duly informed of the nature 
and cause of the accusation against him, within the 
meaning of the constitutional guaranty to that ef- 
fect? Could it be successfully contended that he 
was thereby so furnished with such a description of 
the charge against him as would enable him to make 
his defense, or avail himself of his conviction or ac- 
quittal as a protection against further prosecution for 
the same cause, within the meaning of the leading 
case on that subject, of United States vs. Cruikshank, 
92 U. S., 542523 L. Ed., 588? 

"These questions seem to answer themselves. The 
statutes of the Union make the larceny of personal 
property an offense. Surely it would not be suffi- 
cient to charge a defendant in an indictment with 
'stealing personal property,' without specifying 
what this property was. Now, if it is not sufficient 
pleading to aver that a defendant 'mailed an article 
or thing designed or intended to prevent conception,' 
without any specification as to what that article or 
thing was, the same reasoning would, in my opinion, 
conduce to the conclusion that it would not be suffi- 
cient to allege that the defendant mailed a letter 
informing the addressee where, how, or from whom 
she might obtain such an article or thing, without 



specifying what the article or thing was. 

"The Act of Congress in question first prohibits 
the mailing of any article or thing designed or in- 
tended to prevent conception, and in the same con- 
nection, and as a part of the same clause, prohibits 
the mailing of any letter, etc., giving information 
how or where any of 'the hereinbefore mentioned 
articles or things may be obtained.' The existence 
of the prescribed article or thing is just as essential 
to constitute an offense under the second clause, re- 
lating to giving information, as under the first 
clause, relating to mailing the same thing; and it 
seems to me, it is just as important to describe the 
article or thing in an indictment against a person for 
violating the second clause as for violating the first. 
The offense does not consist merely in giving infor- 
mation generally, nor does it consist of giving infor- 
mation how to prevent conception, but it consists of 
these two elements and one more, namely, giving in- 
formation about a certain thing. The offense, there- 
fore, has three elements : ( i ) The giving of infor- 
mation, (2) about a certain thing, and (3) that 
thing must be one designed or intended to prevent 
conception. Obviously, therefore, the article or 
thing must be as specifically described as the fact of 
giving information. " 

In the indictment in this case the charge is much more 

general and indefinite than in United States vs. Pupke. 
There, the indictment charged the mailing of a letter 
giving information where, how, and of whom, and by 
what means, an article or thing designed and intended 
for the prevention of conception might be obtained, thus 






limited to the one use, that of prevention of conception ; 
here, the charge is of mailing a letter which gave in- 
formation where and how, and of whom, and by what 
means, divers articles and things designed and intended 
for the prevention of conception and for the procuring 
of abortion, might be obtained; including articles and 
things that might be used for either purpose, the pre- 
vention of conception or the procuring of abortion; 
and of such number and diversity as to constitute divers 
articles and things, without designating or giving the 
slightest description of any article or thing designed 
or intended for either purpose. 

It is not stated in the indictment whether the articles 
and things consisted of instruments or of medicines, and 
no description is given to identify any such supposed ar- 
ticle or thing or to show that it existed. 

If the letter written was only a false pretense to ob- 
tain money from the addressee when there was no ar- 
ticle or thing to be obtained, the writing of such a letter 
would not be an offense under the statute. As explained 
in the opinion in United States vs. Pupke, the statute re- 
lates to a real article or thing designed or intended to 
prevent conception or procuring abortion, and pro- 
hibits the mailing of any such article or thing, or giv- 
ing information where, how, or from whom it might 
be obtained. A sweeping charge of using the mails to 
give information relative to divers articles and things 
designed and intended for the two uses, and not desig- 
nating anything is certainly going to the extreme of 



8 

indefiniteness, and it is respectfully submitted that such 
an indictment can not be sustained. 

Furthermore, as explained in United States vs. 
Grimm, 45 Fed. R., 558, the omission from the indict- 
ment of a copy of the letter to which that copied into 
the indictment was an answer, has left the indictment 
ambiguous, and its allegations repugnant. 

The following is an extract from the opinion in that 
case : 

"When one part of an indictment alleges that a 
document gives or contains certain information, and 
the document is then set out in full, and nothing 
therein shows that it conveyed the information 
averred, there is certainly great force in the objec- 
tion that such an indictment is too uncertain to be 
upheld. Now it is true that the allegations of 
this indictment are not absolutely repugnant. While 
the letters on their face do not purport to convey 
any information concerning obscene pictures, it 
may possibly be shown by extrinsic evidence that 
they do convey such information; that they were 
written in answer to letters making inquiries where 
such pictures could be obtained. But it is not nec- 
essary that the allegations of an indictment should 
be absolutely repugnant to render it bad. It is suf- 
ficient to render it vulnerable on demurrer that the 
averments are so far inconsistent as to make it un- 
certain, from an inspection of the bill, whether an 
offense has or has not been committed. It appears 
to the Court that the averments of the indictment 
are to that extent contradictory and uncertain. . . . 



The difficulty in the present case is that the pleader 
did not content himself with declaring in the gen- 
eral language of the statute, even if that would suf- 
fice. He has set out the letters in full, and thereby 
thrown discredit on the allegation that they give 
information where obscene pictures can be obtained. 
If it was deemed essential to set out the letters in 
full, then, as they do not on their face purport to 
give information such as the statute prohibits, the 
pleader should have set out the other extrinsic facts 
upon which the government relies to show that they 
conveyed information denounced by the statute. 
Such seems to have been the mode of pleading 
adopted in U. S. vs. Whittiker, 5 Dill., 35, and I 
think it is correct." 

The demurrer in that case to the indictment was 
sustained. 

That is precisely the condition of this case. 

The indictment in that case charged the mailing of 
a letter and notice giving information "where, how, 
and of whom, and by what means" obscene and lewd 
pictures could be obtained. In the letter, a copy of 
which is in the indictment, and which shows it was 
written in answer to a letter received, it is stated "I will 
" let you have them for $2.00 per doz., and $12.50 per 
" 100. I have about 200 negatives of actresses." 

The letter written in the case at bar states: "In 
" answer to yours of the 2nd inst. will say that upon 
"receipt of Ten ($10.00) Dollars from you, I will 
" send per express necessary treatment with full in- 
" structions." 



IO 

This letter on its face no more purports to convey 
information concerning articles and things to be used 
in preventing conception or procuring abortion, than 
did the letter in the Grimm case purport to convey 
information concerning obscene pictures; and it is re- 
spectfully submitted that the demurrer in this case 
should also be sustained on the same ground upon 
which the demurrer was sustained in that case. 

After that decision in 45 Fed., 558, another indict- 
ment was found against Grimm on the same letter men- 
tioned in that case. In this indictment a copy of the 
letter written him was set out, and it was also charged 
that he had in his possession the character of photo- 
graphs concerning which the indictment charged he 
by his letter gave information. This case is reported 
as Grimm vs. United States, 156 U. S., 604. 

The decision in U. S. vs. Grimm, 45 Fed., 558, is 
recognized as authority in De Gignac vs. U. S., 113 
Fed., 197 (C. C. A. 7th Circuit), it being stated in 
the opinion in the latter case, page 209, that certain 
cases including that case were in point upon the ques- 
tion there under consideration. 

The strictness of the rule in criminal cases requiring 
the charges to be specific is stated in U. S. vs. Cruik- 
shank, 92 U. S., 542, referred to in the opinion in 
U. S. vs. Pupke, supra, the following being extracts 
from the opinion in U. S. vs. Cruikshank: 

"The general charge in the first eight counts is 
that of 'banding,' and in the second eight, that of 



II 

'conspiring' together to injure, oppress, threaten 
and intimidate Levi Nelson and Alexander Till- 
man, citizens of the United States, of African de- 
scent and persons of color, with the intent thereby 
to hinder and prevent them in their free exercise 
and enjoyment of rights and privileges granted and 
secured to them in common with all other good 
citizens of the United States by the constitution and 
laws of the United States" (page 548). 

"Everything essential must be charged positively 
and not inferentially" (page 556). 

"In criminal cases prosecuted under the laws of 
the United States, the accused has the constitutional 
right to be informed of the nature and cause of the 
accusation. Amend. VI. In United States vs. 
Mills, 7 Pet., 142, this was construed to mean that 
the indictment must set forth the offense 'with clear- 
ness and all necessary certainty to apprise the ac- 
cused of the crime with which he stands charged,' 
and in United States vs. Cook, 17 Wall., 174, that 
'every ingredient of which the offense is composed 
must be accurately and clearly alleged.' It is an' 
element of principle of criminal pleading, that 
where the definition of an offense, whether it be 
at common law or by statute, 'includes generic 
terms, it is not sufficient that the indictment shall 
charge the offense in the same generic terms as in 
the definition,' but it must state the species, — it 
must descend to particulars. 1 Arch. Cr. Pr. and 
Pin., 291. . . . It is a crime to steal goods and 
chattels, but an indictment would be bad that did 
not specify with some degree of certainty the arti- 
cles stolen. This, because the accused must be ad- 



12 

vised of the essential particulars of the charge 
against him, and the Court must be able to decide 
whether the property taken was such as was the sub- 
ject of larceny." 

In concluding the opinion it is stated: 

"The conclusion is irresistible, that these counts 
are too vague and general. They lack the certain- 
ty and precision required by the established rules 
of criminal pleading. It follows that they are not 
good and sufficient in law. They are so defective 
that no judgment of conviction should be pro- 
nounced upon them." 

An extract from the opinion in United States vs. 
Cruikshank is given in United States vs. Hess, 124 U. 
S., 483, where the indictment charged the devising of a 
scheme to be effected by communication through the 
postoffice. It is said in the latter case, page 487: 

"Undoubtedly the language of the statute may be 
used in the general description of an offense, but it 
must be accompanied with such a statement of the 
facts and circumstances as will inform the accused 
of the specific offense, coming under the general 
description with which he is charged." 

In Dalton vs. U. S., 127 Fed., 544 (C. C. A. 7th 
Circuit), an indictment was held insufficient, the facts 
constituting the particular scheme to defraud by use of 
the mails, not being stated. 



13 

In U. S. vs. Simmons, 96 U. S., 360, one count of 
the indictment was held bad because it did not give 
the name of the person that the indictment charged the 
accused caused and procured to use a still in violation of 
statutes relating to distilled spirits, or state that his name 
was unknown to the grand jurors (pp. 362-363) . 

In the indictment in this case it is not stated that the 
articles and things as to which it is charged the letter 
gave information were unknown to the grand jurors, 
nor any reason stated for not giving some description 
to identify them. 

The prosecution has also omitted to include in the 
indictment a copy of the letter to which the letter cop- 
ied into the indictment was an answer, and has thus dis- 
regarded the well-understood rule of evidence that the 
letter answered is essential to a correct understanding 
of the letter thereby elicited. No excuse is given for 
this omission. It is not stated that a copy could not 
be given. 

It is stated in the learned counsel's brief, page 12: 

"It is utter nonsense to contend that because some 
other person wrote to the defendant a letter to 
which the one charged in the indictment is an an- 
swer, the first letter should be set forth in the indict- 
ment. No authority is cited by counsel for this 
strange proposition. We had supposed that the 
only acts with which a man could be charged were 
those which were committed by himself, or at his 
instigation. No charge could be based upon the 



'4 

fact that defendant received a letter requesting 
certain forbidden information." 

But by omitting from the indictment a copy of the 
letter to which the letter referred to in the indictment is 
an answer, the prosecution has added additional uncer- 
tainty to the charge in the indictment, as it might ap- 
pear from the two letters considered together that it 
would be impossible to maintain a charge of any of- 
fense against the plaintiff in error, and be declared as 
a matter of law that there could not have been a vio- 
lation of the statute. 

As explained in U. S. vs. Grimm, 45 Fed., 558, the 
indictment has been thereby rendered uncertain, am- 
biguous and its allegations repugnant. 

It is said in the brief of the learned counsel, pages 
13-14: 

"In this connection the Court will notice that 
the statute denounces the sending of any letter of 
any kind, 'giving information directly or indirectly, 
where, or how, or of whom, or by what means,' any 
of the things therein mentioned might be obtained. 
If this letter gave such information indirectly it 
would be sufficient under the statute." 

Whether the information was given directly or in- 
directly, indictments should charge directly and par- 
ticularly what the things are. 



15 
II. 

It is respectfully submitted, that for the reasons 
hereinabove stated, the motion to arrest the judgment 
should have been sustained. 

It is respectfully submitted that the indictment is 
bad and that the demurrer should have been sustained. 

Wherefore, said plaintiff in error prays that a new 
trial be granted him and for such further order as 
may be meet in the premises. 

WM. H. H. HART, 

Attorney for Plaintiff in Error. 



I, « H. HARtf the attorney 

for the plaintiff in error and the peti- 
tionsr in the foregoing petition for re- 
hearing, do hereby certify j tbert is 
judgment tmid jat.it ion ia v/ell founded^ 
ana" that 11 not intexpoeed for delay* 



Attorney' Tor Bald FlalH- 
tiff in Frror and *eti- 
t loner • 






No. 1311 



UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE NINTH CIRCUIT. 



GEORGE F. MILLER and 
LOCKIE McKINNON, 



Appellants, 



vs. 



D 



E. J. MARGERIE, 



MAR -3 ibi 



Appellee. 



TRANSCRIPT OF RECORD. 



Upon Appeal from the United States District Court 

for the District of Alaska, 

Division No. I. 



Filmer Bros. Co., Printers, 424 Sansome St., S. F. 



No. 1311 



UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE NINTH CIRCUIT. 



GEORGE F. MILLER and 
LOCKIE McKINNON, 

Appellants, 

vs. 

E. J. MARGERIE, 

Appellee. 



TRANSCRIPT OF RECORD, 



Upon Appeal from the United States District Court 

for the District of Alaska, 

Division No. J. 



INDEX 



Page 
Amended Complaint, Demurrer to Plaintiffs' Sec- 
ond... ... ........ 7 

Amended Complaint, Second , 2 

Assignment of Errors , 10 

Bill of Exceptions 18 

Bond on Appeal. . . ..,.., 15 

Certificate, Clerk's, to Transcript 19 

Citation.. 20 

Clerk's Certificate to Transcript. , 19 

Complaint, Amended, Demurrer to Plaintiffs' Sec- 
ond. ., ...... — ,. ,| ... .. . . i 7 

Complaint, Second Amended...... ...... .. 2 

Demurrer to Plaintiffs' Second Amended Com- 
plaint ,. . 7 

Exceptions, Bill of . . . . 18 

Judgment......... 9 

Notice of Appeal. 14 

Order Allowing Appeal. ... .. ,..).. 13 

Order Permitting Interlineation . 8 

Petition for Appeal 12 

Praecipe for Transcript — . . 1 

Second Amended Complaint 2 



Distinct Court, District of Alaska, Division No. 1. at 

Juneau. 



MILLER & McKINNON 

vs. 
E. J. MARGEBIE. 



^> 



Praecipe for Transcript. 
To C. C. Page, Clerk. 

Kindly send up on appeal a transcript of the follow- 
ing papers : 

Second amended complaint. 

Demurrer to second amended complaint. 

Order sustaining demurrer. 

Bill of exceptions. 

Judgments. 

Assignment of errors. 

Petition for appeal. 

Order allowing appeal. 

Notice of appeal. 

Citation. 

Bond on appeal. 

E. M. BARNES, 
Atty. for Plffs. 



2 George F. Miller and Lockie McKmnan 

[Endorsed] : No. 479-A. District Court, for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and 
Lockie McKinnon, Plaintiffs, vs. E. J. Margerie, Defend- 
ant. Praecipe. Filed Feb. 5, 1906. C. C. Page, Clerk. 
By A. L. Collison, Asst. E. M. Barnes, Attorney for 
Plffs. Office: Juneau, Alaska, Valentine Bldg. 



District Court, District of Alaska, Division No. 1, at 

Juneau. 

GEORGE MILLER and LOCKEY Mc- 
KINNON 

vs. 

E. J. MARGRIE. 

Second Amended Complaint. 
And now come plaintiffs and for their second amended 
complaint, leave having been granted therefore, allege: 

That at all times since 1885, plaintiffs and their gran- 
tors have been and now are (the paramount title of the 
United States alone intervening), the owners of and in 
the actual and exclusive possession of, until hereinafter 
named, and at all times since said year 1885 have been, 
and now are entitled to the immediate and exclusive pos- 
session of lot 4, block B of the town of Juneau, District 



rs. E. J. Manjvric. 3 

of Alaska, according to the recorded map or plat of said 
town, now recorded in the recorder's office at Juneau, 
Alaska. 

II. 

That at all the times hereinafter named, Thomas R. 
Lyons has been, and now is, the duly appointed, qualified 
and acting trustee of the townsite of Juneau, appointed 
by the Secretary of the Interior under the provisions of 
sees. 11 and 15, inclusive, of the Act of Congress, ap- 
proved March 3, 1891, entitled, "An Act to Repeal Timber 
Culture Laws, and for other purposes" (26 Statutes, 1905), 
and qualified and acting as such as provided in said act 
and the regulations of the Secretary of the Interior, dated 
June 3, 1893. 

III. 

That on the 13th day of October, 1893, Thomas R, Lyons, 
as such trustee, entered on the tract of land upon which 
the townsite of Juneau is situate, being survey No. 1, of 
Public Surveys in Alaska, under said act, executed by 
George W. Garside, U. S. Deputy Surveyor, under in- 
structions from the United States Marshal of the District 
of Alaska, who was ex-officio Surveyor General for said 
District of Alaska, bearing date March 8th, 1892, ap- 
proved by said United States Marshal, ex-officio Surveyor 
General, the 21st day of October, 1892. 

IV. 

That the defendant on the day of May, 1903, falsely 

and fraudulently, and with intent to impose upon said 



4 George F. Miller and Lockie McKwmon 

trustee, represented to the trustee of the town of Juneau, 
aforenamed, that he, the defendant, and his grantors were 
the owners of and in possession of, and entitled to the 
possession of said lot on the 13th day of October, 1893, 
ever since had been, and then were such owners, and 
were at all said times in the possession of said lot, and 
at all said times entitled to the possession of said lot. 

V. 

That said statements and each of them were wholly 
false, and made solely by this defendant to impose upon, 
and to wrongfully and fraudulently obtain from said 
trustee, his, the said trustee's deed for said lot. 

| VI. 

That said trustee believed, and acted on said false and 
fraudulent statements so made by said defendant, and 

acting on said belief did on said day of May, 1903, 

issue to said defendant his deed for said lot, thereby con- 
veying to said defendant the legal title thereto. 

VII. 

That said false and fraudulent statements affected the 
determination of said trustee, and did impose upon said 
trustee, and but therefore said trustee would not have 
issued said deed as aforesaid or at all. 

VIII. 

That said trustee did, on said day of May, 1903, at 

his office in Juneau, Alaska, actually hear, and determine 



vs. E. J. }fargcrie. 5 

on said false statements as aforesaid, the said questions 
of said occupancy and ownership of said lot, which said 
lot was at all times herein named and now is of the 
value of |600. 

IX. 

That plaintiffs nor either of them had any knowledge 
of said hearing or any opportunity to learn of said hear- 
ing or any opportunity to deny said false statements or 
any part thereof, or to prove said statements or any part 
thereof false, at any time or place. 

X. 

That on said — — day of May, 1903, these plaintiffs 
were, ever since have been, and now are, entitled to said 
deed. 

Wherefore, plaintiffs pray: 

I. 

That said trustee's deed be decreed to be void and of 
no effect. 

II. 
For plaintiffs' costs and disbursements herein. 

III. 

For such other and further relief as to the Court may 
seem meet and equitable. 

E. M. BARNES, 
Atty. for Plffs. 



6 George F. Miller and LocMe McKvrmon 

United States of America, 
District of Alaska, — ss. 

I, George Miller, being, first duly sworn, on oath say: 
That I am one of the plaintiffs in the above-entitled ac- 
tion; that I have read the foregoing complaint and know 
the contents thereof, and believe the same to be true. 

GEO. F. MILLER. 

Subscribed and sworn to before me this 18th day of 
Jany., 1906. 

[Seal] GUY McNAUGHTON, 

Notary Public for Alaska. 

Due service of a copy of the within is admitted this 
20th day of Jany., 1906. 

MALONY & COBB, 
Attorneys for Deft. 

[Endorsed] : No. 479-A. District Court for the Dis- 
trict of Alaska, Division No. 1, at Juneau. George Mil- 
ler and Lockie McKinnon, Plaintiffs, vs. E. J. Margrie, 
Defendant. Second Amended Complaint. Filed Jan. 20, 
1906. C. C. Page, Clerk. By A. L. Collison, Asst. E. M. 
Barnes, Attorney for Plff. Office: Juneau, Alaska, Val- 
entine Bldg. 



vs. E. J. MargeHe. 



Division No. 1, at Juneau, in the District Court for Alaska. 

GEORGE F. MILLER and LOCKIE Mc* 
KINNON, 



vs. 



Plaintiffs,] 

No. 479-A. 



E. J. MAEGRIE, 

Defendant. 

Demurrer to Plaintiffs' Second Amended Complaint. 
Now comes the defendant and demurs to the second 
amended complaint, and says the same does not state 
facts sufficient to constitute a cause of action, in this: 
There are no allegations of fact showing how, or the means 
whereby, the plaintiffs were prevented from having knowl- 
edge of the hearing before the townsite trustee, and there 
litigating the right of possession of the lot sued for; nor 
is it shown that such want of knowledge, or want of op- 
portunity to be heard before said townsite trustee was 
induced or caused by the defendant; of all of which de- 
fendant prays judgment of the Court 

MALONY & COBB, 
Attorneys for Defendant. 

Service of the above and foregoing demurrer is admitted 
to have been made this 25th day of January, 1906. 

E. M. BARNES, 
Attorney for Plff. 



8 George F. Miller and Lock'tv McKmnon 

[Endorsed] : Original No. 479- A. In the District Court 
for Alaska, Division No. 1, at Juneau, George F. Miller 
et al., Plaintiffs, vs. E. J. MargTie, Defendant. Demurrer 
to Second Amended Complaint. Filed Jan. 25, 1906. C. 
C. Page, Clerk. Malony & Cobb, Attorneys for Deft. 



In the District Court for the District of Alaska, Division 
No. 1, at Juneau. 

GEORGE F. MILLER and LOCKY Mc-< 

KINNON, j 

Plaintiffs/ 
vs. \ No. 479-A. 

E. J. MARGRIE, 

Defendant. 

Order Permitting Interlineation. 
Now on this day it is ordered that plaintiffs be, and 
they are hereby, permitted to amend by interlineation 
their second amended complaint, said amendment to be 
made as follows, to wit : By annexing to paragraph VIII 
in said second amended complaint, and making the an- 
nexed words a part of said paragraph VIII, the follow- 
ing words, "which said lot was at all times herein named 
and now is of the value of f 600.00." 

Done in open court this 29th day of January, 1906. 

ROYAL A. GUNNISON, 

Judge. 



vs. E. J. Mar (/eric. 



GEORGE F. MILLER and LOOKIE Me-< 

KINNON, 

Plaintiffs, 

vs. 

E. J. MARGRIE, 

Defendant. 

Judgment- 

This cause came on to be heard upon the demurrer of 
the defendant to the second amended complaint of the 
plaintiffs, and was argued by counsel; and the Court be- 
ing fully advised in the premises, finds that the law is for 
the defendant. 

It is therefore considered by the Court and it is so or- 
dered, adjudged and decreed that said demurrer be, and 
the same is hereby, in all things sustained, to which ruling 
of the Court plaintiffs, by their counsel, duly excepted, 
and the exception is allowed. 

And thereupon counsel for plaintiffs stating in open 
court that they did not desire to amend, but elected to 
stand upon said amended complaint. 

It is considered by the Court, and it is so ordered, ad- 
judged and decreed, that this cause be, and the same is 
hereby, dismissed, and that the defendant, E. J. Margrie, 
do have and recover of and from the plaintiffs, George P. 



10 George F. Miller and Lockie McKinnm 

Miller and Lockie McKinnon, his costs herein incurred for 
which let execution issue. 

Done in open court this 29th day of January, 1906. 

ROYAL A. GUNNISON, 

Judge. 

[Endorsed] : No. 479-A. In the District Court, Distj 
of Alaska, Div. No. 1. George F. Miller and Lockie Mc- 
Kinnon vs. E. J. Margrie. Judgment of Dismissal. 
Filed Jan. 29, 1906. C. C. Page, Clerk. By A. L. Colli- 

son, Asst. 



District Court for the District of Alaska, Div. No. i, at 

Juneau. 

GEORGE F. MILLER and LOCKIE Mc \ 
KINNON J 

m S No. 479-A. 

E. J. MARGRIE, / 

Assignment of Errors. 
Comes now the plaintiffs and file the following assign- 
ment of errors upon which they, and each of them, will 
rely on their appeal from the decree made by this Hon- 
orable Court on the 29th day of January, 1906. 

I. 

The Court erred in sustaining the demurrer interposed 
by defendant to plaintiffs' second amended complaint, and 



vs. E. J. Margerie. H 

by holding and deciding that said complaint did not state 
facts sufficient to constitute a cause of action, in that 
"There are no allegations of fact showing how, or the 
means whereby, the plaintiffs were prevented from hav- 
ing knowledge of the hearing before the townsite trustee, 
and there litigating the right of possession of the lot 
sued for; nor is it shown that such want of knowledge, or 
want of opportunity to be heard before said townsite trus 
tee was induced or caused by the defendant." 

II. 

The Court erred in dismissing the said suit and enter- 
ing a final decree herein in favor of the defendant and 
against plaintiffs for said defendant's costs. 

In order that the foregoing assignment of errors may 
be and appear of record, the plaintiffs present the same to 
the Court, and pray that such disposition be made thereof 
as in accordance with law and the statutes made and pro- 
vided, and plaintiffs pray a reversal of the decretal or- 
der and decree of dismissal made and entered by said 
Court. 

E. M. BARNES, 
Atty. for Plffs. 

[Endorsed] : No. 479-A. District Court, for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and Lockie 
McKinnon, Plaintiffs, vs. E. J. Margrie, Defendant. As- 
signment of Errors. Filed Feb. 1, 190C. C. C. Page, 
Clerk. By D. C. Abrams, Deputy. E. M. Barnes, Attor- 
ney for Plffs. 



12 George F. Miller and Lockle McKimnon 



In District Court for the District of Alaska, Die. No. /, at 

Juneau. 

GEORGE F. MIILLER and LOOKIE 
McKINNON 

( 



vs. 

i 
B. J. MARGOEIE, 



Petition for Appeal. 

The above-named plaintiffs considering themselves 
aggrieved by the order and decree made and entered in 
the above-entitled suit on the 29th day of January, 1906, 
wherein and whereby it was ordered, adjudged, and de- 
creed, that plaintiffs' suit herein be dismissed and that 
defendant have judgment against plaintiffs for his costs 

herein, amounting to the sum of dollars, does 

hereby appeal from the said decree to the United States 
Circuit Court of Appeals for the Ninth Circuit, for the 
reasons specified in the assignment of errors herein, 
and they pray that this appeal may be allowed, and 
that a transcript of the record, papers and proceedings 
upon which said decree was made, duly authenticated, 
may be sent up to the United States Circuit Court of 
Appeals for the Ninth Circuit at San Francisco. 

E. M. BARNES, 
Attorney for Plaintiffs. 



rs. E. J. 'fart/air. 13 

[Endorsed]: No. 479-A. District Court for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and 
Lockie McKinnon, Plaintiffs, vs. El. J. Margrie, Defend- 
ant, Petition for Appeal. Filed Feb. 1, 190G. C. C. 
Page, Olerk. By D. 0. Abrams, Deputy. E. M. Barnes, 
Attorney for Plffs. 



District Court for the District of At a ska, Div. No. /, at 

Juneau. 

GEORGE F. MIILLER and LOCKIE \ 
McKINNON ] 

\ 
vs. ( 

IS 

E. J. MARJORIE. 

Order Allowing Appeal. 

At a stated term, to wit, Dec. 1905, of the District 
Court for the District of Alaska, Div. No. 1, at Juneau, 
held in the courtroom of said Court at the city of 
Juneau, Alaska, on the 5th day of Feb'y, 1906. Pres- 
ent, the Honorable Royal A. Gunnison, Judge. 

On motion of E. M. Barnes, attorney for plaintiffs, it 
is ordered that an appeal to the United States Circuit 
Court of Appeals for the Ninth Circuit, from the decree 
heretofore filed and entered herein be and the same is 
hereby allowed, and that a certified transcript of the 
record, and all proceedings herein be forthwith trans- 
mitted to said United States Circuit Court of Appeals 



14 George F. Miller and LocTde McK 'union 

at San Francisco, Cal. It is further ordered that the 
bond on appeal be fixed at the sum of two hundred and 
fifty dollars, the same to act as a supersedeas bond, and 
also as a bond for costs and damages on appeal. 

Dated Feb. 5, 1906. 

ROYAL A. GUNNISON, 

Judge. 

[Endorsed]: No. 479-A. District Court, for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and 
Lockie McKinnon, Plaintiffs, vs. E. J. Margerie, De- 
fendant. Order Allowing Appeal. Filed Feb. 5, 1906. 
0. 0. Page, Clerk. By A. L. Collison, Asst. E. M. 
Barnes, Attorney for Plffs. Office: Juneau, Alaska, 
Valentine Bldg. 



District Court for the District of Alaska, at Juneau, Div. 

No. 1. 

GEORGE F. MILLER and LOCKIE 
McKINNON 

vs. 

E. J. MARJORIE, 

Notice of Appeal. 

To E. J. Margorie and to Malony & Cobb, His Attor- 
neys. 
You are hereby notified that the plaintiffs herein in- 
tend to and do hereby appeal from the final decree of 
the District Court for the District of Alaska, Div. No^ 



vs. E. J. Margerie. 15 

1, at Juneau, entered on the 29th day of January, 1900, 
and from the whole thereof, to the United States Circuit 
Court of Appeals for the Ninth Circuit at San Fran- 
cisco, Oal. 
Dated at Juneau, Alaska, Feb. 5, 1906. 

E. ML BARNES, 
Attorney for Plaintiffs. 

Due service of a copy of the within is admitted this 
5th day of Feb'y, 1906. 

MALONY & COBB, 
Attorneys for Deft. 

[Endorsed] : No. 479- A. District Court, for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and 
Lockie McKinnon, Plaintiffs, vs. B. J. Margerie, Defend- 
ant. Notice of Appeal. E. M. Biarnes, Attorney for 
Plffs. Office: Juneau, Alaska, Valentine Bldg. Filed 
Feb. 5, 1906. C. C. Page, Clerk. By A. L. Collison, 
Asst. 



In District Court for the District of Alaska, Div. No. 1, at 

Juneau. 

GEORGE F. MILLER and LOCKIE \ 
McKINNON ) 

( 

vs. 

E. J. MARJORilE. 

Bond on Appeal. 

Know all men by these presents, that we, George F. 
Miller and Lockie McKinnon, as principals, and George 



16 George F. Miller and Lockie McKinnon 

Kyrage, as surety, are held and firmly bound unto E. 
J. Marjorie, in the full sum of two hundred and fifty 
dollars to be paid to the said E. J. Marjorie, his heirs, 
executors, administrators and assigns, jointly and sev- 
erally, firmly by these presents. 

Sealed with our seals and dated this 5th day of Feb- 
ruary, 1906. Whereas lately at a session of the Dis- 
trict Court of the District of Alaska, Div. No. 1, at 
Juneau, in a suit pending in said Court between said 
George F. Miller and Lockie McMcKinnon, E. M. B. and 
the said E. J. Marjorie E. M. B., and the said George F. 
Miller and Lockie McKinnon, having obtained from 
said Court an order allowing an appeal to the United 
States Circuit Court of Appeals of the Ninth Circuit 
to reverse the decree and a citation directed to the 
said E. J. Mlargorie is about to issue, citing and admon- 
ishing him to be and appear at the United States Cir- 
cuit Court of appeals for the Ninth Circuit to be holden 
at San Francisco, California. 

Now, the condition of the above obligation is such, 
that if the said George F. Miller and Lockie McKinnon 
shall prosecute their said appeal to effect, and shall 
answer all damages and costs that may be awarded 
against them, if they fail to make their plea good, then 
the above obligation is to be void; otherwise to remain 
in full force, virtue and effect. 

GEORGE F. MILLER.. [Seal] 
ALEX M. ROSS. [Seal] 

LOCKIE McKINNON. [Seal] 
By his Attorney in Fact, 

A. M. ROSS, 
GEORGE KYRAGE. [Seal] 



vs. W. J. Margerie. 17 

The interlineation of the words "And the said E. J. 
Marjorie" made before signing. 

E. M. BARNES. 

J. C. SUTDEY. 

United States of America, 
District of Alaska, — ss. 

I, George Kyrage, being first duly sworn, according 
to law depose and say: I am a freeholder resident within 
the District of Alaska. I am in all ways qualified to 
become surety on bail within said District; that I am 
worth the sum of five hundred dollars, over and above 
all my just debts and liabilities, in property situate 
within said district exclusive of property exempt from 
forced sale and execution. 

[Seal] GEORGE KYRAGE. 

Subscribed and sworn to before me this 6th day of 

Feb'y, 1906. 

J. 0. SUTLEY, 

Notary Public for Alaska. 

And I further certify that the within named George 
P. Miller and George Kyrage and F. M. Ross, as attor- 
ney in fact for said Lockie McKinnon, duly severally 
acknowledged to me that they severally executed the 
said bond for the uses and purposes therein mentioned. 
In witness whereof I have hereunto set my hand and 
affixed my seal this 6th day of Feb'y, 1906. 

J. G. SUTLEY, 
Notary Public for Alaska. 



18 George F. Miller and Lockie McKirmon 

[Endorsed] : No. 470- A. District Court for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller 
and Lockie McKinnon, Plaintiffs, vs. E. J. Mar- 
gerie. Bond on Appeal. Filed Feb. 6. 1906. C. 
C. Page, Clerk. By A. L, Collison, Asst. The within 
bond examined and approved by me this 6th day of 
Fob'y, 1006. Royal A. Gunnison, Judge. E. M. Barnes, 
Attorney for Plffs. 



Dibtriel Court for the District of Alaska, Div. No. 1, at 

Juneau. 



GEORGE F. MILLER and LOCKIE 
McKINNON ) 



vs. j 

. 

EL J. MARJORiIE. 

Bill of Exceptions. 

Be it known that on the 29th day of January, 1906, 
the defendant's demurrer to plaintiffs' second amended 
complaint was sustained; the plaintiffs duly excepted 
to the order of the Court sustaining said demurrer, and 
plaintiffs' exceptions were duly allowed, and this bill 
of exceptions is hereby settled, approved and allowed, 
and made a part of the record herein. 

Done in open court this 5th day of Feby, 1906. 

ROYAL A. GUNNISON, 

Judge. 



vs. E. J. Margerie. 19 

[Endorsed] : No. 479-A. District Court for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and 
Lockie McKinnon, Plaintiffs, vs. E. J. Margerie, De- 
fendant. Bill of Exceptions. Filed Feb. 7, 1906. C. 
C. Page, Clerk. By A. L. Collison, Asst. E. M. 
Barnes, Attorney for Plffs. 



Clerk's Certificate to Transcript. 

United States of America, 
District of Alaska, 
Division No. 1, — ss. 

I, C. C. Page, Clerk of the District Court for the Dis- 
trict of Alaska, Division No. 1, do hereby certify that 
the above, foregoing and hereto annexed eighteen (18) 
typewritten pages constitute a full, true and correct 
copy of the record and the whole thereof as per prae- 
cipe on file herein and made a part hereof in a cause 
wherein George F. Miller and Lockie McKinnon are 
plaintiffs and E. J. Margrie is defendant, No. 479-A, as 
the same appears of record and on file in my office. 

I further certify that the cost of preparation, exam- 
ination and certificate, amounting to six and 40/100 
dollars ($6.40), has been paid to me by defendant in 
error. 

In witness whereof, I have hereunto set my hand and 
affixed the seal of this court this 7th day of February, 
1906. 

[Seal] C. C, PAGE, 

Clerk. 



20 George F. Miller and Lockie McKinnon 

Citation, 

UNITED STATES OF AMERICA— ss. 
The President of the United States to E. J. Margerie, 
and to Malony & Cobb, His Attorneys: 
Yon are hereby cited and admonised to be and ap- 
pear at a United States Circuit Court of Appeals for 
the Ninth Circuit to be holden at the city of San Fran- 
cisco, in the State of California, within thirty days 
from the date of this writ, pursuant to an appeal filed 
in the clerk's office of the District Court for the Dis- 
trict of Alaska, at Juneau, wherein George F. Miller 
and Lockie McKinnon are plaintiffs and appellants, and 
you are defendant and respondent, to show cause, if 
any there be, why the decree in the said appeal men- 
tioned should not be corrected, and speedy justice 
should not be done to the parties in that behalf. 

Witness the Honorable MELVILLE W. FULLER, 
Chief Justice of the Supreme Court of the United 
States of America, this 5th day of Feb., A. D. 1906, and 
of the Independence of the United States the one hun- 
dred and thirtieth. 

ROYAL A. GUNNISON, 

Judge. 

Attest: C. 0. PAGE, 

Clerk. 

Due service of a copy of the within is admitted this 
5th day of Feby., 190G. 

MALONY & COBB, 
Attorneys for Deft. 



vs. E. J. Margerie. 21 

[Endorsed]: No. 479- A. District Court, for the Dis- 
trict of Alaska, Division No. 1. Geo. F. Miller and 
Lockie McKinnon, Plaintiffs, vs. E. J. Margerie, De- 
fendant. Citation. 



[Endorsed] : No. 1311. United States Circuit Court 
of Appeals for the Ninth Circuit. George F. Miller and 
Lockie McKinnon, Appellants, vs. E. J. Margerie, Ap- 
pellee. Transcript of Record. Upon Appeal from the 
United States District Court for the District of Alaska, 
Division No. 1. 

Filed February 14, 1906. 

F. D. MONCKTON, 

Clerk. 






NO. 1311 



IN THE 

United States Circuit Court of Appeals 

FOR THE NINTH CIRCUIT. 



GEORGE F. MILLER, and 
LOCKIE McKINNON, 

Appellants, 
vs. 
E. J. MARGERIE, 

Appellee. 



FILE' 

PR 2619QC 



UPON APPEAL FROM THE DISTRICT COURT 

FOR THE DISTRICT OF ALASKA, 

DIVISION NO. 1. 



APPELLANT'S BRIEF 



E. M. BARNES, 

Attorney for Appellant. 



TRANSCRIPT PRINT. JUNEAU. ALASKA. 



NO. 1311 



IN THE 

United States Circuit Court of Appeals 

FOR THE NINTH CIRCUIT. 



GEORGE F. MILLER, and 

LOCKIE McKINNON, 

Appellants, 
vs. 
E. J. MARGERIE, 

Appellee. 



UPON APPEAL PROM THE DISTRICT COURT 

FOR THE DISTRICT OF ALASKA, 

DIVISION NO. 1. 



APPELLANT'5 BRIEF 



E. M. BARNES, 

Attorney for Appellant. 



[3] 



IN THE 

United States Circuit Court of Appeals 

FOR THE NINTH CIRCUIT. 



GEORGE F. MILLER, and 
LOCKIE McKINNON, 

Appellants, 
vs. 
E. J. MARGERIE, 

Appellee. 



APPELLANT'S BRIEF 



This is a suit wherein the appellants seek to set 
aside a trustees deed (Record p. 5 sub. 1), of a lot in 
the city of Juneau, Alaska, (Record p. 2 sub. 1) is- 
sued to the defendant, alleging fraud on the part of 
defendant. (Record p. 3 allegation IV to allegation 
X of p. 5). 

The complaint alleges that at all the times since 



1885 plaintiffs and their grantors have been an'] now 
are (the paramount title of the U. S. alone interven- 
ing) the owners of and in the active possession of and 
entitled to the immediate possession of lot 4 block B, 
town of Juneau, and alleges the appointment of a 
trustee under the provisions of see. 11 & 15 of the act 
of congress approved March 3rd, 1891. entitled An act 
to repeal Timber Culture laws, and for other purpo- 
ses and the entry of the tract of land by said trustee 
upon which the tow r nsite of Juneau is situate, and 
that the defendant on the day of May, 1903, falsely 
and fraudulently, and with intent to impose upon said 
trustee represented to the aforenamed trustee 
of the town of Juneau, that the 
defendant and his grantors were the 

owners of and in possession of and entitled to the pos- 
session of said lot on the 13th day of October, 1893, 
ever since had been and then were such owners, and 
were at all said times in the possession of said lot and 
entitled to said possession and that said statements 
and each of them were wholely false and made solely 
by the defendant to impose, and to wrongfully and 
fraudulently obtain from said trustee his deed for said 
lot and that said trustee believed and acted on said 
false and fradulent statements so made by defendant, 
and acting on said belief did on said day of May, 
1903, issue to said defendant his deed to said lot there- 
by conveying to defendant the legal title thereto and 
that said false and fraudulent statements affected the 






[51 

determination of and did impose upon said trustee and 
but therefor said trustee would not have issued said 
deed and that said trustee did on said day, of May 
1903, actually hear and determine on said false represen- 
tations and statements, the said questions of said oc- 
cupancy and ownership of said lot and the value of 
the lot and that plaintiff nor either of them had any 
knowledge of said hearing or any opportunity to deny 
said false statements or any part thereof at any time 
or place and that on said day of May, 1903, plain- 
tiffs were ever since have been and now are entitled to 
said deed and prayed that said trustees deed be de- 
clared void and for general relief and that the value 
of said lot was six hundred dollars. 

To which the defendant demurred on the ground 
! hat the same does not state facts sufficient to consti- 
tute a cause of action in this. "There are no allega 
; ions of fact showing how or the means whereby, the 
plaintiffs were prevented from having knowledge of 
the hearing before the townsite trustee, and there liti- 
gating the right of possession of the lot sued for; nor 
is it shown that such want of knowledge, or want of 
opportunity to be heard before said townsite trustee 
was induced or caused by the defendant. ,, 

The errors relied on by appellants are : 

I. 

The Court erred in sustaining the demurrer inter- 
posed by defendant to plaintiff's second amended com- 
plaint, and by holding and deciding that said com- 



L«] 

plaint did not state facts sufficient to constitute a 

cause of action in that 

"There are no allegations of fact showing how, or 

the means whereby, the plaintiffs were prevented from 

having knowledge of the hearing before the townsite 

trustee, and there litigating the right of possession of 

the lot sued for; nor is it shown that such want of 

knowledge or want of opportunity to be heard before 

said townsite trustee was induced or caused by the 

defendant." 

II. 
The Court erred in dismissing the said suit and 

entering a final decree herein in favor of defendant 

for defendant's costs. 

Appellants contend the demurrer should have 
been overruled as the only question to be considered 
as raised by the demurrer is the sufficiency of the alle- 
gations of fraud in a suit of this kind. 

The United States vs. American Bell Telephone 
Co. (cited post) is a suit wherein the government ■ 
seeks to set aside a patent for an invention, for fraud, 
and the Court says: 

kk At present we are concerned with a sufficiency 
of the allegations; that is to say, whether the allega- 
tion of this fraud is made with such minuteness and 
sufficiency of detail as to require an answer on the 
part of the defendant, it is sufficient for the present 
case in which on demurrer we wish to decide nothing 
more than is necessary to determine whether the de- 
fendant should be called on to answer the bill. 



m 

"It is a mistake to suppose that in stating the 
facts which constitute a fraud, where relief is sought 
in a bill of equity, all the evidence which may be 
adduced to prove that fraud must be recited in the 
bill. It is sufficient if the main facts or incidents 
which constitute the fraud against which relief is de- 
sired shall be fairly stated, so as to put the defendant 
upon his guard and apprise him of what answer may 
be required of him." 

United States vs. American Bell Telephone Co. 
32 Law ed. 458 Citing Story eq. pi. par. 352 and 
Field vs. Hastings, etc. 65 fed. 280. 

The demurrer to that bill was nearly like this de- 
murrer, idem, supra p. 456. 

The reason for the rule is the same in both cases. 
Copying from the brief of counsel therein, idem supra, 
p. 452. 

"It was held by Judge Wallace that there is no 
distinction between letters patent for an invention and 
for land, as regards the rights and remedies for vaca- 
ting them." 

United States vs. Gunning 18 fed. 511 affirmed in 
22 fed. 653, 23 fed. 668. 

"Patents for land may be set aside for fraud." 
Miller vs. Kerr 20 U. S. 1. 

u In all cases, Courts of Equity will convert the 
legal owner into a trustee for the equitable owner 
when in equity and good conscience it belongs to the 
X^laintiff.'' 



Johnson vs. Towsley 20 L. ed. 486-7. 

Appellants take it that under the language of the 
demurrer. Record p. 7. 

They are not called upon to present authorities 
beyond matters raised in appellee's specification of 
demurrer. 

idem supra. 

Kef erring again to 32 L. ed. 458, appellants here- 
in allege: "That the defendants did on the day of 
May, 1903, falsely and fraudulently and with intent 
to impose upon said trustee represent to the trustee of 
the town of Juneau, that he, the defendant, and his 
grantors were the owners of and in possession of said 
lot on the 13th day of October, 1893, ever since had 
been and then were such owners, and were at all said 
times in the possession of said lot, and at all said 
times entitled to the possession of said lot, and that 
said statements were wholly false and made solely by 
this defendant to impose upon and to wrongfully ob- 
tain from said trusteo, his, the said trustee's deed for 
said lot. " 

Record pp. 3 and 4 

Appellants respectfully represent that in their 
opinion the charge of fraud is made with sufficient ex- 
plicitness to require an answer. 

Does he who admits the truth of such allegations 
come into court with clean hands? 

( an a Court of Equity point to such a man as a 
shining example to follow in the paths of truth and 
justice and honesty? 



[9] 

Appellants counsel has been unable to find any 
warrant threfor in any authority on equity or at all 
and believes none exists; and therefore is of the opin- 
ion the learned and respected District Court erred in 
requiring appellants to allege the fraud along the 
lines demanded by appellee's demurrer. 

Appelle's counsel produced no authority in the 
Court below, the Court gave no reason for its decision 
and appellant's counsel has found neither authority 
nor reason for such decision and sincerely hopes his 
labors have not been in vain. 

Respectfully submitted , 

K. M. BARNES, 

Attorney for Appellants. 



NO. 1311 // 



EN THE 



United States Circuit Court of Appeals 

FOR THE NINTH CIRCUIT 



GEO. F. MILLER and 

LOCKIE McKINNON, 

Appellants, 

VS. 

E. J. MARGRIE, 

Appellee 



rr 1 t 



L MM ^ 



Appeal From the District Court for Alaska, Division No. I. 



BRIEF FOR THE APPELLEE. 



MALONY & COBB, 

Attorneys for Appellee. 



TRANSCRIPT PRINT JUNEAU. ALASKA 



No. 1311 



IN THE 



United States Circuit Court of Appeals 

FOR THE NINTH CIRCUIT 



GEO. F. MILLER and 

LOCKIE McKINNON, 

Appellants, 

VS. 

E. J. MARGRIE, . 

Appellee 



Appeal From the District Court for Alaska, Division No. I. 



BRIEF FOR THE APPELLEE. 



STATEMENT. 

This is an appeal from an order sustaining a De- 
murrer to an amended bill, and the, plaintiffs declin- 
ing to amend, a decree dismissing the bill. 

There is but a single question presented upon the 
record, viz: 

Where a bill saeks to charge the holder of the le- 
gal title to land emanating from the government, as 
trustee, on the ground of fraud in obtaining such title, 
must not the fraud alleged, be such as prevented the 
plaintiff from fairly and fully presenting his case to 
the land department 2 Is an allegation of fraud prac- 
ticed upon the offices of the land department alone 
sufficient' 



ARGUMENT. 

A careful reading of the amended bill in the 
record will show that it amounts merely to this: That 
defendant has procured the legal title to the lot in 
dispute from the government; that he procured it 
by false testimony, thereby misleading the said officers; 
that plaintiffs have had no opportunity to present 
their claim to the department: — That is all. How 
or why plaintiffs had no opportunity to present their 
claim to the land department, when the title to the 
lot was being administered there, is not attempted to 
be explained; and the learned trial judge held that in 
the absence of such showing in the bill it was ob- 
noxious to a general demurrer. In this he followed 
both reasons and the authorities. 

If litigants may open decisions of the land de- 
partment upon such facte as are disclosed by the bill in 
this case, then all a party has to do when the title to a 
town lot he claims, is applied for by another, is to sit 
still, wait till the trustee issues his de 'd, sue the suc- 
cessful applicant, try the question of occupancy in the 
court, and if he succeeds obtain his government title 
at the expense of his adversary. The decision of the 
department would be good only provided there was no 
one who cared to question it. In short the question 
as to who was the prior occupant and entitled to the 
lot, would remain open to question in the courts, 
simply because the adverse claimant did not desire, 
or neglected to litigate it before the department. 

The decisions of a tribunal specially created to 



try these questions cannot be upset, except upon 
grounds which would authorize a Court of Equity to 
open up a judgment at law. 

Counsel cite a number of cases in which the 
government was complainant, and the allegations ol' 
fraud alleged to have been practiced on the officers of 
the government were held sufficient. These cases we 
submit, have no application here, since the govern- 
ment is not a party, and is not complaining of any 
fraud practiced upon it. The plaintiff cannot avai 1 
himself of fraud practiced upon the government, but 
only of fraud practiced upon himself. Indeed th<> 
question here presented has been so well settled that 
no extended argument is deemed necessary or proper. 
The following authorities are directly in point, and 
require an affirmance of the decree: — 

Cummings vs. McDermid, 44 Pac R. 276. 

Twine vs. Casey, 37 Pac. R. 1096. 

Bassett vs. Mitchell, 41 Pac. R. 601. 

King vs. Thompson, 39 Pac. R. 466. 

Sanford vs. Sanford, 139 U. S. 650. 

Durango L. & C. Co., vs. Evans, 80 Fed. 429. 

In the casein 139 U. S. Mr. Justice Field says: 
•And the misrepresentations and fraud mentioned 
necessarily affecting the judgment of the department 
must be such as have prevented the unsuccessful 
party from fully presenting his case, or the officers of 
the government from fully considering it." 

In the case from 80 Fed. Mr. Circuit Judge Thayer 
says. (p. 430): "It was its (the unsuccessful appli- 



cants) duty to have made such showing before the 
land department, and it will not be excused for fail- 
ing to do so unless it alleges and proves that some 
trick, artifice, or deceit was practiced, which prevented 
it from obtaining a full and fair trial of the issues". — 

These authorities cover the very point of the de- 
murrer. The bill merely alleges that plaintiffs had 
no knowledge of the hearing and no opportunity to 
present their case to the townsite trustee. There is 
no allegation that any act of defendant deprived them 
of that opportunity, or prevented them obtaining the 
requisite knowledge. So far as the bill shows the 
fact that they 4 'had no oportunity," may have been 
due to their own deliberate choice or to their own neg- 
ligence. It is not alleged that full and fair notice 
of the hearing was not given by the townsite trustee, 
nor indeed is anything shown which would justify a 
Court of Equity in opening up a judgement of the 
departmental officer made in the discharge of his 
duty to convey the government title. 

We respectfully submit that the decree should be 
affirmed with costs. 

MALONY & COBB, 

Attorney's for Appellee, 

K. J. Margrie 






I 



No. 1311 



IN THE 



United States Circuit Court of Appeals 

FOR THE NINTH CIRCUIT 



GEO. F. MILLER and 

LOCKIE McKINNON, 

Appellants, 

VS. 

E. J. MARGRIE, 

Appellee 



FILED 
.11 IN 211906 



Upon Appeal From the District Court for the District of Alaska 

Division No. I. 



APPELLANT'S REPLY BRIER 



E. M. BARNES 

Attorney for Appellant. 



IX THE 



United States Circuit Court of Appeals 

FOR THE XIXTH CIRCUIT 



GEO. F. MILLER and 

LOCKIE McKINNON, 

Appellants, 



VS. 



E. J. MARGKIE. 



Appellee J 



Upon Appeal From the District Court for the District of Alaska 

Division No. 1. 



APPELLANT'S REPLY BRIEF. 



L2] 

Appellee in his brief says "there is but a single 
question presented upon the record, viz: 

Is an allegation of fraud practiced upon the of- 
ficers of the Land Department alone sufficient?" 

"It is only where misrepresentation and fraud 
have been practiced, necessarily affecting their (the 
land officers) judgements that the Courts can, in prop- 
er proceedings interfere and refuse to give effect to 
their action. 11 

Quinley vs. Conlan 104 II. S. 420 27 L. 802 Ci- 
ting. 

Johnson vs. Towsley, 13 Wal 72. 

Shepley vs. Cowan, 91 U. S, 330-345. 

Moore vs. Bobbins 96 U. B. 535. 

Record, allegations VI- VII & VIII, p. 4. 

The query is almost startling. As well ask would 
a fraud practiced on this Court be sufficient to viciate 
a judgment thereof? 

If it would, an allegation of such fraud would be 
sufficient to sustain a bill in equity to set aside that 
judgment. Can any judgment stand tinctured with 
admitted fraud? 

Such a proposition strikes at the very foundation 
of the beautiful and grand structure of equity, the 
guidon that beckons us from what we are to what we 
should be. The spectre of Edward III bowed 
down with sorrow, should mingle with the content- 
ment of the after dinner cigar of an attorney who 
should desire such a miscarriage. 

It seems almost an unneccessary piling up of 



[3] 
costs against appellee to reply to his brief, but the in- 
accuracies of his counsel should not be passed by. 

At the outset appellee says that all the amended 
bill amounts to is that defendant has procured the le- 
gal title to the lot in dispute from the government; 
that lie procured it by false testimony thereby mis- 
leading the said officers that plaintiffs have had no op- 
portunity to present their claim to the department, 

On this misstatement he builds up his whole ar- 
gument. Again he says: 

u The bill merely alleges that plaintiff had no 
knowledge of the hearing and any opportunity to 
present their case to the townsite trustee." Why 
did appellee make this statement? The allegation is 

"That plaintiff nor either of them had any knowl- 
edge of said hearing or any opportunity to deny said 
false statements or any part thereof, or to prove said 
statements or any part thereof false at any time or 
place. 11 

Allegation IX. p. 5 Record. 

Would appellee have this Court decide that the 
allegation of fraud must be differently brought home 
to the defendant when the government is plaintiff, 
from when an individual is plaintiff. 

"When the government comes into Court asserting 
a property right, it occupies the position of any other 
suitor. Its rights are precisely the same, no greater, 
no less/' 

Mountain Copper Co. Limited vs U. S., Cause 
No. 1203, this court, and authorities there cited. 



[4] 
Appellee says -How or why plaintiff had no op- 
portunity to present their claim to the land depart- 
ment, when the title to the lot was being adminis- 
trated there, is not attempted to be explained." For 
answer appellant cites: 
Allegation IX. supra. 

He admits we were the owners of and in actual 
occupation of said lot at the time of his false swearing, 
Allegation 1 p. 2 Record. 

Can a man's property be taken without process 
of law or due compensation. He admits that we were 
the owners of and in actual possession of the lot 
from 1885. 

If I remember the statutes correctly the land must 
go to the man who and whose grantors were the own- 
ers of the land in October 13, 1893. 

Appellee admits we were such owners and that he 
swore falsely and deceived the trustee and that the 
trustee acted on said false testimony and but for that 
false testimony he would not have issue:! said deed, 
all this and more, admitting that plaintiffs are the 
equitable owners, and that he has the legal title but 
obtained it wrongfully and in fraud of the rights of 
plaintiffs, and that plaintiffs are now an I at- all times 
entitled to said deed. 

Is not that all there is to this suit, and <\'~n^ it not 
establish plaintiffs rights herein? 

This is different from a pre-emption contest as was 
Sanford vs. Sanford 139 U. S. 650 cited by ap- 
pellee. 



[6] 

In Alaska the statute prescribes who is the owner 
and we are under the statute. 

They don't allege that we lost our rights by 
laches, but that they got them by false swearing un- 
beknown to us. 

Plaintiffs, secure in the ownership and possession 
of their lot by the laws under which they live, in the 
actual and exclusive possession thereof, must they 
dance continual attendance at the trustee's office to 
prevent some unconscionable individual from commit- 
ting perjury? 

Can such an individual by his admitted perjury 
change the title from the one in whom the law says it 
is? 

And must not defendant set up answer that pro- 
cess had been issued to these plaintiffs and by their 
laches they forfeited the rights given by the statute. 

Appellee would have a price paid for perjury. 
If the title to the lot was being administered (p. 4 Ap- 
X>ellees Brief) and the owner of the title had no knowl- 
edge of such administration or any opportunity to' 
learn of said hearing or to deny such false statements. 
I opine the Court or officer had no jurisdiction to ad- 
minister and that plaintiffs nor either of them had 
any knowledge of said hearing or any opportunity to 
learn of said hearing or any opportunity to deny said 
false statements or any part thereof or to prove said 
statements or any part thereof false or at any time 
or place, seems to appellant a sufficient answer to the 
objection that there were no allegations of fact show- 



L«] 

ing how or the means whereby the plaintiffs were pre- 
vented from having knowlodge of the hearing before 
the townsite trustee, and there litigating the right of 
possession of the lot sued for; nor is it shown that 
such want of knowledge, or want of opportunity to be 
heard before said townsite trustee, was induced or 
caused by the defendant. 

Appellant seriously contends: 
That the ruling of the learned trial Judge was er- 
ror abinitio and when plaintiffs alleged of what facts 
the false swearing was, specified particulars and did 
not rely on a general allegation of fraud that then the 
requirements of the plea in equity in such cases were 
fulfilled. 

Allegations IV. <fe V. pp. 3 <fc 4 Record. 

What were the facts necessary to be proven be- 
fore the trustee? 

• 'That the applicant and his grantors were and 
have been the owners since October 13, 1893. " 

Appellants have not not only alleged the main 
facts or incidents which constituted the fraud against 
which relief is desired, but have alleged more going 
beyond the rule as lain down in U. S. vs. American 
Bell Telephone Co. 32 Law ed. and authorities there 
cited. 

Appellee says: 

Cummings vs. McDermid 44 Pac. 276. 

Twine vs. Casey 37 Pac. 1096. 

Basset vs. Mitchell 41 Pac. 601. 

King vs. Thompson 39 Pac. 466. 



Durango L. <fe C. Co. vs. Evans 80 Fed. 429 are 
directly in point and require an affirmance of the de- 
cree. 

Now the import of those decisions as understood 
by appellants are 

That the complaints were defective beeause u he 
nowhere states what the fraudulent misrepresenta- 
tions were, nor in what the false testimony consisted 
nor whether such false testimony in any way influ- 
enced the action of the townsite trustee, nor that he 
did not before that tribunal have the evidence or 
means showing that the representations of his adver- 
sary were false and that the testimony was false." 

If appellee can get the consolation from those de- 
cisions to support his demurrer. 
Record p. 7. 

And support what he and the learned trial Judge 
denominated a "judgment, 11 P. 9 Record, in this equit- 
able suit, he certainly has the consent of appellants, for 
it is the saying of a well-known sage "that the 
worst fooled man is he who fools himself. 11 

Appellee says: 

"It is not alleged that full and fair notice of the 
hearing was not given by the townsite trustee. 11 

Appelle's brief page 6. 

Appellant has been nowhere enabled to find any 
provision of the law authorizing any notice in such 
case as presented by this pleading and if appellant had 
alleged that no notice of the hearing by the trustee 
was given, their bill would have been demurrable for 



|8] 
not showing, as they do in allegation IX. p, 5 Record. 
Equity would not relieve when the allegation is some- 
thing was not done when in law there was no warrant 
for such doing. 

Appellee cites Justice Field. So will appellant. 
u The aim of Congress has been to protect those who, in 
good faith, settled upon public land and made im- 
provements thereon, and not those who by violence or 
fraud or breeches of contract intruded upon the pos- 
session of the original settlers and endeavors to appro- 
priate the benefit of their labors. There has baen in 
this respect in this whole legislation of the country a 
consistant observance of the rules of natural right and 
justice. * * * 

In no instance in the legislation of the country 
have the claims of the intruder upon the prior pos- 
sessions of others, or in disregard of their rights been 
sustained * * * That congress intended that 
the original and bona fide occupants (of townsites) 
should be the recipients of the benefits of the entry to 
the extent, at least, or their interest, that is of their 
actual occupancy and improvement * * * 

With reference to the action of officers of the Land 
Department when the legal title has passed from the 
United States to one party, when in equity and good 
conscience and by the laws of congress it ought to go 
to another, a Court of Equity will convert the holder 
into a trustee of the true owner and compel him to 
convey the legal title. The doctrine extends to the 
action of all officers having charge of proceedings for 



tiie alienation of the public domain." 

Rector vs. Gibbon III. IT. S. 28 L. pp. 428 et seq. 
and this is cited in Twine vs. Casey 37 p. 1096 which 
appellee says is authority for affirming the decree. 

Appellants are firm in their belief that the order 
of the learned trial Court in sustaining appellees' de- 
murrer and in the decree that followed were without 
warrant by any rules of pleading. 
Respectfully submitted, 

E. M. BARNES, 

Attorney for Appellants.