lohapauole, whereas the former is in substantial accord with the true meaning of the express language of the will. I think the judgment should be reversed and the cause remanded, with directions to the court below to vacate the judgment of the trial court, and for further proceedings therein in accordance with the views here expressed. SILVER KING COALITION MINES CO. v. CONKLING MINING CO.* 1. TENANCY IN COMMON 22-MINING CLAIM-MINING BY ONE COTENANTACCOUNTING. A tenant in common of a mining claim, which extracts and sells ore therefrom, holds the share of its cotenant in trust, and it is its duty to notify the cotenant, to keep the ore separate, and to keep an account of its proceeds, and where, because of its violation of such duty, the amount and value of the ore cannot be accurately ascertained, all doubtful question should be resolved against it on an accounting. 2. APPEAL AND ERROR 1011(1)—REVIEW-FINDINGS OF FACT. Findings of the trial court on an accounting by a tenant in common of a mining claim to its cotenant for ore extracted and sold from the claim, as to quantity and value of the ore, made on conflicting evidence, sustained. 3. TENANCY IN COMMON 22-MINING CLAIM-MINING BY ONE COTENANTACCOUNTING. A cotenant of a mining claim, which secretly extracted and sold ore therefrom, on an accounting to its cotenant, held not entitled to an allowance, as an expense of extraction, of the cost of cleaning and extending a tunnel, which, although indirectly the means of discovering the ore, was used by it for other purposes, and produced an income exceeding such cost. 4. TENANCY IN COMMON 22-MINING CLAIM-MINING BY ONE COTENANTACCOUNTING. A cotenant in exclusive possession of mining property, who extracts and sells the ore, may charge against its proceeds the reasonable and necessary expense of its extraction and marketing. Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge. Suit in equity by the Conkling Mining Company against the Silver King Coalition Mines Company. Decree for complainant, and both parties appeal. Modified and affirmed. See, also, 230 Fed. 553, 144 C. C. A. 607. T. Marioneaux and W. H. Dickson, both of Salt Lake City, Utah (A. C. Ellis, Jr., and R. G. Lucas, both of Salt Lake City, Utah, on the brief), for Silver King Coalition Mines Co. Edward B. Critchlow, of Salt Lake City, Utah (William W. Ray, of Salt Lake City, Utah, William D. McHugh, of Omaha, Neb., and William J. Barrette and William H. King, both of Salt Lake City, Utah, on the brief), for Conkling Mining Co. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied May 29, 1919. Before SANBORN and STONE, Circuit Judges, and ELLIOTT, District Judge. SANBORN, Circuit Judge. The decree assailed by these appeals is that the plaintiff below, the Conkling Company, a corporation, recover of the defendant below, the Silver King Coalition Mines Company, a corporation, $542,222.58, on account of the latter's extraction and appropriation to its own use, of the plaintiff's share of the ore in the Conkling lode mining claim, which the two corporations owned as tenants in common. Prior to the year 1907 Nicholas Treweek and J. Leonard Burch were the owners of an undivided three-fourths, and the Kearns-Keith Company, a corporation, was the owner of the undivided one-fourth, of this lode mining claim. In that year Treweek and Burch conveyed their three-fourths and their causes of action against the Kearns-Keith Company and the King Company to the Conkling Company, and the King Company succeeded to the ownership of the Kearns-Keith Company's one-fourth and assumed its liabilities, so that the Conkling Company and the King Company stand in the same relation to each other as if each had owned the interest, and had committed the acts of omission and commission of their predecessors or predecessor in interest. For the sake of brevity, therefore, the acts of omission and commission of their respective predecessors will in this discussion be called their acts respectively. The King Company first discovered ore in this claim in October or November, 1906. It had then long been in exclusive possession of that claim. It had run the Alliance Tunnel and numerous drifts and crosscuts therefrom through its own land through the Conkling and other claims to enable it to reach and work ores wherever it might find them. As it was driving one of these crosscuts through the ground of the Conkling claim it discovered in that ground the ere in controversy. It did not notify its cotenant of its discovery, but during the year 1907 it took out from Conkling ground and stored in drifts underground many thousand tons of ore. In the latter part of 1907 the Conkling Company learned something of this operation and in December of that year and January, 1908, it demanded access to and an opportunity to examine the defendant's workings in Conkling ground, that the ore taken therefrom should be kept separate from ores from other sources, and that the King Company should account to it for three-fourths of that ore. The King Company did not grant these requests. This suit was commenced on January 8, 1908, and after an application was made herein therefor, an order was made by the court on June 30, 1908, with the consent of the King Company, that the Conkling Company should have access to the workings of the latter in Conkling ground and an opportunity to examine and survey them. The King Company, however, continued to extract the ore from this mine, a part of which proved to be within, and a part of which proved to be without the Conkling ground. From May, 1907, to August, 1910, and during the years 1913, 1914, 1915, and 1916 it did not keep the ore from Conkling ground separate from that outside that ground, but mingled the ores together. After April, 1909, the ore from the Conkling ground and from adjacent ground was hoisted by the King Company from the 500-foot level through the Silver Hill shaft, and the shift bosses kept a record of the number of cars of first class ore and of the number of cars of second class ore that were hoisted through that shaft. But no account of the amount of the ore taken from the Conkling ground, or of its value or of its proceeds, was kept by the King Company. The result was that when, under the interlocutory decree, it became necessary to determine the the amount and value of this ore in 1917, the Conkling Company was dependent for its information on the testimony of officers and employés and the scant records of a corporation which had not informed it of the discovery of the ore, had not permitted it to examine its workings in Conkling ground until induced to do so by a suit and an application for an order, had refused to keep an account of the volume of ore it took from Conkling ground, or of its value or proceeds, and had never rendered any account thereof until it presented one showing the amount due the Conkling Company to be $78,638.61 in obedience to the interlocutory decree in the spring of 1917 preparatory to the final hearing. The claim of the Conkling Company was for about $900,000. The decree of the court was for $542,222.58, and the question raised by the assignments of error of the respective parties is the correctness of this amount which the King Company contends is too large and the Conkling Company insists is too small. The title and the respective rights of the parties to the Conkling lode mining claim, especially to the 135-foot strip across its westerly end were adjudged by this court in 1916 in this suit (Conkling Mining Co. v. Silver King Mines Co., 230 Fed. 553, 144 C. C. A. 607), a motion for rehearing was considered and denied, an application to the Supreme Court for a writ of certiorari failed (242 U. S. 629, 37 Sup. Ct. 14, 61 L. Ed. 536), and this court is unwilling now, if it might lawfully do so, to disturb that adjudication. [1] Turning, then, to the finding of the court below relative to the amount of the recovery, the indisputable fact is that many of the issues that conditioned the bases of the accounting were determinable only from conflicting testimony, or from indirect evidence and the rational deductions therefrom, or from scant and unsatisfactory proof, so that after a study of the record the truth of the statement of the court below in opening its opinion on the accounting that “the record in this matter is voluminous, but in many respects unsatisfactory, and the best that can be hoped for is an approximation of a true account between the parties," is conclusively demonstrated. In this state of the case the rules and legal presumptions, by which this court should be guided in its consideration of the evidence and its review of the findings below, are of more than ordinary importance. Counsel have recognized this fact, and their forcible and exhaustive arguments upon this subject have been thoughtfully considered with this result. As this court stated in Silver King Coalition Mines Co. of Nevada v. Silver King Consolidated Mining Co. of Utah, 204 Fed. 166, 180, 122 C. C. A. 402, 416, the King Company "was a trustee for the complainant of its share of the ore it took, and of the proceeds thereof. As such trustee it violated its duty to notify its cotenant of its entry and taking of the ore, its duty to keep the ore separate, its duty to keep an account of it and of its proceeds, and its duty promptly to account for and pay to its cotenant its just share of the proceeds of the ore." If the King Company had discharged these duties, the amount that should be recovered could have been readily ascertained and clearly proved. So uncertain did its failure so to do render the amount it ought to pay in its own estimation that it filed four accounts in this suit, in which the amounts it stated its indebtedness to the Conkling Company varied from $72,750.76 to $262,161.22. In a suit of this nature the burden is upon the plaintiff to prove that the defendant took the plaintiff's ore, or the proceeds of it, and mingled it with the ore in which the plaintiff had no interest, and those facts were admitted or conclusively proved in this case. Then the burden of proof and the duty rested upon the defendant to prove the amount of the ore it took from Conkling ground and its proceeds or value, and to account and pay therefor, and if by reason of the failure of the defendant to keep the Conkling ore separate from other ore, and to keep an account of the ore taken and of its proceeds or value, the proof of the amount, the proceeds or value, or of any other facts requisite to make such proof, remained at the close of the hearing evenly balanced, uncertain, or doubtful, the doubt should have been and should now be so resolved, in accordance with the basic principle of the accounting of a negligent or reckless trustee or agent, that the latter shall receive no profits from his wrongful treatment of the property of his cestui que trust, and the latter shall receive the just value of his property and its income. The King Company should not profit in this case by its own wrong, and issues rendered uncertain or doubtful by reason of its failure to discharge its recited duties, or by its confusion of the ores from Conkling ground with those from other sources, must be resolved against it. By that rule, therefore, and by the familiar rule that, where a court has considered conflicting evidence and made a finding or decree, the presumption is that it is correct, and unless some obvious error of law has intervened, or some serious mistake of fact has been made, the finding or decree must be permitted to stand (Coder v. Arts, 152 Fed. 943, 946, 82 C. C. A. 91, 94, 15 L. R. A. [N. S.] 372), this court must be guided in its review of the findings and decree below in this case. [2] As, when this case came to a hearing, there was no account or record of the volume of ore taken from Conkling ground between May, 1907, and May, 1909, and as the only account or record of the ore taken therefrom after April, 1909, was the shift bosses' record of the amount of ore coming both from within and without Conkling ground that was hoisted from the 500-foot level through the Silver Hill shaft, and as that record failed to show what part of that ore came from within or from without the Conkling claim, the most available method of finding the volume of ore taken from that ground was to ascertain the extent of the cavity therein made by the King Company, and then to estimate from such facts as could be proved from the recollection and testimony of witnesses and from surveys, the number of tons of first-class or shipping ore and the number of tons of second-class or milling ore the cavity originally contained, for every part of the cavity contained ore of each class, and there was a difference of several dollars per ton in the value of the two classes. Mr. C. P. Brooks, a mining engineer, had been the engineer of the King Company during its workings, and had made surveys from time to time as the work in the Conkling progressed through the various stopes, drifts, and crosscuts therein, some of which were partly within. and partly without the Conkling claim. The King Company, to support the account it had rendered, called and examined Mr. Brooks at length. His testimony was that the total cavity within Conkling ground was 302,173 cubic feet, and on that basis the accounting has been taken by counsel and the court. Mr. Brooks also testified to the number of cubic feet in the various cavities in the numerous stopes, drifts, levels, etc., which formed parts of the entire cavity. Having the cubic feet in the cavity or any part of it, it was necessary, in order to estimate the number of tons of each class of ore that had been taken therefrom, to ascertain or estimate what part of the material therein was ore, and what part, if any was waste, how many cubic feet of the first-class ore that had been in that cavity made a ton, and how many cubic feet of the second-class ore from that cavity made a ton, and also the proportion of the first-class ore to the second-class ore therein. The evidence in answer to each of these questions was in hopeless conflict. Upon a consideration of all of it, the court reached the conclusion that it required 6 cubic feet of first-class ore taken from the Conkling ground to make a ton, and 7.62 cubic feet of the secondclass ore to make a ton, and upon that basis the decree rests. The King Company earnestly contends that this finding was erroneous, and that the decree should be reformed upon the basis of 7.275 cubic feet per ton of first-class ore and 9.315 cubic feet per ton of second-class ore. The evidence upon this issue is so voluminous that only a bare outline of its nature is permissible here. The King Company made its first and second accounts in this case on the basis of 9 cubic feet per ton of first-class ore and 11 cubic feet per ton of second-class ore. It made its third and fourth accounts on the basis of 7.275 cubic feet per ton of first-class ore, and its fifth account on the basis of 7.275 cubic feet per ton of first-class ore and 9.315 cubic feet per ton of second-class ore. Mr. Brooks was its chief witness. He testified that he took from the sides of the cavity, after the ore in question was removed, five samples that he thought fairly represented the extracted ore, that he had them assayed by Mr. Hansen, who had been the assayer of the Silver King Company since 1914, that he put his sample No. 1, which weighed 741⁄2 pounds, in a box, packed wheat around and over it, leveled the wheat with the top of the box, then took the sample out and measured the space between the top of the box and the wheat remaining to obtain the cubic contents of the sample; that he treated his samples 2, 3, 4, and 5 in the same way; that he weighed each of the samples; that all the samples except No. 5 proved, when assayed, to be first-class ore, although he |