The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-04-25

sell. do not and have not, and if they did.
would not, expect anything moro than
what they are entitled to under the law.
either from the jury or from the court,
thing, as intimAted by counsel.
This case is somewhat peculiar on 40
count of the particular situation OF things.
Here ia II lead which the plaintiffs to-day
claim has been worked and Quilted; here is
n lead which they claim, and expect to show
to the court, the slopes to which are OBJ
structed. they have not been able to get
into ii. ! make this suggestion to tho
court not for the purpose of casting an
asperslon upon counsel. but for the purpose
OF showing the situation ve are i'll with
reference to the production of testimony a.
continued by arguing that If the defendants
could show that they had no book upon
which entries were made showing the
amount of ore taken from the claims they
should be relieved from the obligation Of
producing the book; and that in 80 far as
that branch of the case was concerned, per-
tanning to the testimony showing the
amount of ore. and it's value. taken out
within the side lines of the st. Louis claim.
that the defendant should be held strictly
to produce all the records they have show
ing that fact.
In reply for the defendants Mr.. Cullen
said they recognized the difficulties that
the gentlemen on the other side were labor
ing under in undertaking to make ous their
side of the case, and 80 far as he could do
30 in the discharge of his duties to his
clients he was willing to aid them. But
we are not required to 30. In every litiRa-
ton the laborlnG oar is upon the plaintiff.
When a plaintiff comes into u court of JUS
tice and says My neighbor has entered uron
my poss e~ssiocs; has entered upon my min
ing claim and taken therefrom $2.0 DOC. 600
worth. and has been guilty of d wiiful tres
pass the burden is upon him to prove it,
and there is no requirement of law or JUS
tice that the defendant shall come in and
assist him. Now, the gentleman in his ar
Gument asks for just precisely what he asks
for in his subpnna--every scrap of paper,
every book and every survey. and every
plat and map that during all of these years
has been made by this COMPANY in the
prosecution of their work upon that great
property; a property extending three
approximately more han twenty miles Of
drifts. levels and tunnels, and yet he wants
it all. We state to him here by this
affidavit and We state to him orally that
there in no book in the possession of this
company that shows the amount of ore
chute, or the Jubilee chute No. 2. or any
other chute. We have not any such book,
but if he will specify any solitary thing
that we have in our POSSESSION, and that is
any evidence in this case, We will produce
it any hour or any minute he wanta it. As
l say. we have not taken anybody's ore but
our owr, and we are afraid of no investiQa-
proof out of our hands-any admissions
made by us-he is welcome to them"
Judge Knowles then said that with an ex-
perience Of somewhat over thirty years in
mining litigation he had never been CON
fronted with just such a question rs was
kora <rooorkol tkA.rv T ha-a -~ - - - h.
said, that where a party is required to pro-
duce evidence that would crimlnate himself,
or work a forfeiture, or something of that
kind, that a motion to quash a subpoena
deuces tecum that required that, would be
sustained By the court. What the court is
in doubt about is were the dences tecum re-
quires the production of evidence that may
appear to the court az not competent owl
dence. There is vesy often evidence pre-
sented in q case without objection, who if
the opinion OF the court was asked the court
might think it not competent. And the
question is, whether those questions should
arise when it ID proposed to introduce this
testimony or whether it can be presented at
this time. AS l understand the attorney,
he appears here now as an attorney for the
witness who is required to produce these re.
ports. do not think it competent tor a
witnOss to determine, or ask the court to de-
tsrmine beforehand, the evidence in the
case. 1t may be that when a gwen piece of
evidence is offered that the defendant won d
not object to 1t all-would be perfectly will
ing that it should go to the jury. The court is
laboring somewhat under the same disad-
vantage in deciding a question of this kind
that the attorneys are, and that is that in
this affidavit it is stated that some of these
maps that have been made are incorrect.
and a party should not be required to pro-
duce any map that is incorrect. Then the.e
should be no maps required to be produced
except those that pertain to the ground in
litigation. l do not think ! will decide
this at this time. l will decide it to-mor-
row morning. We will proceed with the
other testimony in the casa. OF course
there may be such a thing as some of these
chutes having been filled up. 1t is common
in mines to fill up chutes with waste matter
SO they need not 90 to the expense of tax
ing it out OF the mines. 1he plaintiff in
the case could not make a survey of it 10
see what the dimensions of the chute were,
and there should be some means Of arriv-
ing at that" Mr.. Cullen said the defend.
ants would show that.
During the afternoon the plaintiff sought
to introduce testimony to show that the
defendants had by means of underground
works entered upon q vein which had its
apex inside the boundary lines of the st.
Louis claim, and which departed from the
perpendicular in its downward course, and
entered into and under the claims of the
defendants. The defendants objected tc
the introduction of this testimony for the
reason that the allegations contained in me
complaint were were not broad enough e
cove ANYTHING but the common Inv riuh,
to the claim. which would be defined by
plane d avn downward on its boundnr,
line, and could not In that way include IN,
extra lateral rights. The com plaint III sub
stance alleged the claim as laid out O,
the %eufface, and also ave red az a part O
the claim that the plaintiff was entitled L
all veins, lodes or lodges the top or apex o
which came inside OF the boundary lines O
the claim. and gave them tha right to pur
, sue the same downward on their dip undo
the lines of another. The cou t sustaiue
: the complaint and held that it was broa
enough undst the statutes OF the Unite
states to comprise the vein in question.
. The last witness on the stand yestcrda
was j. X. Parks, n mining expert fror
New York. Generally, Mr.. Packs gave
/. full history OF the geological formation G
I the country whore the claims are locate
!, showing that tho country rock was com
4 posed principally of slate with email Dol
Z tions of granite, and that the vein ~referrs
q to contained Rsngue or vein matter fror
a wall TO wall, mlnerallzed; and that the
a were substantial walls with QouRe an
!. selveRe. and Ind been exposed for a Ion
distance, and that the vein had been trace
!, by Its wails into the Cruise evei and unds
the workings OF tho Nine Hour.