We cannot grant the petition for rehearing for the following reasons: First, the matters urged by it were all given careful consideration before the opinion filed in the case was written, and we see no reason advanced for altering the views expressed therein. Second, counsel in his petition and brief has inaccurately quoted, as well as punctuated erroneously, that portion of the opinion to which exception appears to be taken. It may be that if the language, as actually used in the opinion, should be again examined, our position on the matter will be more thoroughly understood. Third, it is said that the trial court held "that the tunnel agreement was not for an indefinite period but was for five years, the same as the lease on the Cavanaugh winze." Search through the several pages of the decree entered by the district court in the case fails to reveal any such holding. The truth is that it was alleged in the third paragraph of plaintiffs' petition "that the plaintiffs were to have the use of the tunnel above described for the *Page 505 purpose of mining, prospecting, and taking out ore from the property of these plaintiffs for an indefinite period." In the first paragraph of the answer of the defendant, it is stated: "Defendant admits the matters and things stated in paragraphs 1 to 7, inclusive, of plaintiffs' petition." It would seem that these formal allegations and admissions of the parties were sufficient to justify the statement in the opinion which simply coincided with the quoted averment of plaintiffs' pleading.
Rehearing Denied.
KIMBALL, Ch. J., and BLUME, J., concur.