Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-04-11
A FAMOUS CASE.
Another Step in the Apex Mining Con-
tr0yCrsy Between the Ana
conda and Lincoln-Lucky
Claimants.

Judge Seeds this morning filed an
opinion of $500 words in the case of A.
NJ. Hendry ct al, VS. R. Y. Anderson ct
al, generally known as the Anaconda
Lincoln-Lucky and Lee suit, which grants
Hendry an injunction against the de-
PENDANTS az soon as he shall give bond
of $4,000, to be approved by the clerk
of the court.
The decision is substantially as fol-
lows
In last May complainant began On ac-
ton in equity alleging his ownership
with others of the Anaconda mining
claim at San Pedro, in which he sought
to have defendants enjoined from work
ing upon his location. A temporary in
junction was granted and re-
ceiver appointed. Upon the hear
ing the defendants demurred be-
cause compliments title had not been
decided at law. The demurrer was
overruled because title was alleged in the
bill and the demurrer admitted it, On
July 2lst defendants answer denied the
title and it was decided that before
complainant should have injunctive
aid he should establish his title. On
September 20, he filed supplemental
bill for an injunction to stay waste dur
ing the litigation as to title on the law
side Of the court. An injunction or such
protection as would be equivalent to the
injunction was granted by Judge Merle
and Il suitable bond ordered to indemnify
the com plainant. The case came before
Judge Seeds again i'll October and no held
with Judge NIcFie, only increasing the
amount of the bond. The decision of the
two Judges practically is that the COM
plainant was entitled to an injunction or
its equivalent. The opinion continues:
This being the status of affairs, what
is the nature of the application filed by
the com plainant? For present purposes
I shall assume it is supplemental bill
and consider the demurrer to it. 1t
alleges a new location of the Anaconda,
but did nofwaive any of his rights under
the former location; also that defendants
have followed the vein beyond their
side lines, and end lines also, onto the
Anaconda claim; that large ore bodies
increasing in value are daily taken out
and the bonds are inadequate security for
the extra amount of ore taken; that ex-
travagant and unnecessary salaries are
being charged against the Anaconda; that
the accounts are inadequate to true
value of the ore taken out, etc. The
defendants demur that no new matter has
been introduced; that only the INSULT
cheney of the bonds is alleged; that the
court is not authorized to set aside the
former decisions, etc. BY this demurrer
all the allegations of the bill which are
well pleaded are admitted.
The court holds that the allegations
above are well pleaded, and repeats several
which are new matter, and that the ques-
ton of passing the end lines has never
been adjudicated; and this has nothing to
do with the sut1iciency of the bond. Ii
then this application called a petition
was supplemental bill 1T was not nee
essarily fatal IN what or the manner it
pleads, and the demurrer would have to
be overruled.
petition is proper when it is desired
to obtain an order in an equity proceed
ing, which does not seek to change the
issues. See Lube Equity Pleading, p 81;
Daniels Oh. P. q Pr. secs. 1592-l604.
Other authorities are also quoted.
at is found that the complainant has
made such showing as to entltle him to
Injunction protection. He is not salts
fed with the present protection but prays
for the original protection of an injunc-
ton. The question is to what does the
10 1ipf
then probably supplemental bill should
have been filed. If, as in this case, it Is
the basis of an interlocutory order sim.
ply, it should have been presented by mo-
ton or petition, and as am unaware of
any rule allowing a demurrer to petit
ton the motion to strike the same flom
the files will be granted"
The question of "change of policy of
the court was next considered, under
which the only question touched was
that defendants had passed their side and
end lines. "At the hearing it was asserted
that the court had already decided
that as between a trespasser in actual,
visible possession, and one not SO, the
complainant had no rights. I at once
went over my decisions and found that
the defendants were in possession of the
ore body claiming to follow it upon Its
dip beyond their side lines and within
their end lines extended horizontally;
and that complainant had sufficient claim
to entitle him to the protection of the
equity powers of the court; and that the
defendants claimed that in following the
ore beyond their sido lines from its apex
on their claim they had come upon
the Anaconda. The complainant charges
that said ore is a pipe or chute running
diagonally from the Undoubtedly into
the Anaconda having its apex at every
point along that course, and did not enter
the Anaconda on its downward course
but on its strike"
| This is denied and the claim set up that
both claims are on a land grant and the
trespasser in possession is the one en-
titled to the ore But this does not
change the issue. As to the grant qnes-
ton, the court holds that the land is pub
lie domain under the decision of the SUI
preme court sufficiently to allow the COM
plainant the benefit of an injunction, be-
cause under the decision of our court the
land became public.
Numerous authorities are then cited f;
and the Injunction finally granted.