The Anaconda standard., 1895-12-29
INTEREST DEMANDED
An Interesting Question Of Law Ar
gued Before Judge McHatton.
THE COST OF EMBALMING
In Regard to That Spur on LaveIPs
Ranch-The Helm Case-L Lien
on q Railroad = Cases
Set for Trial.
THE COST OF EMBALMING

An interesting question Of law was
argued before Judge Mediation yester-
: day afternoon in the condemnation suit
OF the B.. A & p. against the Volunteer
Mining company. The latter had ap-
pealed from the award of the commits
sioners on the right-of-way over the
Volunteer lode. and on the trial the
jury slightly increased the original
award, which had been 50, 400, and the
company finally agreed to accept IL and
not contest the matter further. but they
demanded interest on the Sc. 400 for the
time 1t had been In the hands OF the
clerk of the court, almost a year. The
question was argued yesterday. w. w.
Dixon, representing the railroad. said
the money had been deposited in court
on the award Of the commissioners and
IL then belonged to the defendants. who
should have taken 1t down II they de-
sired to use It. Both the constitution
and the statutes required the payment
of the money into court before the
property could be used, and when once
it was paid into court the plaintiffs
had lost control of 1t and could not use
it. If the defendants desired to leave
II there. they did so at their own risk.
f. T. Mcbride. representing the Vol
unteer company, read a decision OF the
state supreme court in case in which
his honor. Judge Mediation. one OF the
defendants. Mr.. Mcbride claimed that
the decision meant that the money paid
into court on the award of the COM
missioners was paid in only as Sc
curity and not as a compensation for
the ground. 'Tf 1t means that said
Judge Mediation. interrupting, at is In
direct violation of the constitution"
II thought at the time the whole de-
cision was opposed to the constitution"
l.
take It," The new code, said Mr.. Nc
Bride, says money paid into court may
be taken down without prejudice to an
appeal, but under the old law. accord
ing to his Interpretation of the supreme
court decision. 1t could not be taken
down without prejudicing an appeal
from the commissioners award.
In reply, Mr.. Dixon said that II the
cash was only intended as security, a
bond would answer the same pur-
pose.
Judge Mediation said he had exam
ined the supreme court decision and
found in 1t nothing that was opposed
to his view of the case, and that was
that the award of the commissioners
must be taken as a basis of just COM
pensation, and he had no hesitancy in
saying that; when the constitutional
provision had been complied with by
! the payment into court OF the amount
of the award. the defendants were en-
titled to take the money. and II they
did not take II, they were not entitled
to interest. and interest would there
fore not be allowed. The court also
gave the opinion that the right to ap-
peal would not. have been prejudiced IL
the money had been taken down.
Another ond mnation Case.
The condemnation suit of the Oregon
Short Line Utah Northern came up
before Judge Mediation yesterday on a
demurrer of defendants answer. ]. S.
Shropshire appearing for the railroad
company and John w. Cotter for Mr..
Lavell For eight or nine years the
Short Line has had a spur across Mr..
Lavelis ranch on the Big Hole, the
spur being used only to haul material
to and from the Divide Lumber COM
pany's mill. located some distance from
the main line. The railroad company
had no title to the right-of-way, and
the court, few months ago. decided
that the company was trespassing on
Mr.. Lavelrs property, and the latter
then tore up the rails and destroyed
the track. The company brought suit
to condemn the ground, and Mr.. La
veil. in his answer. denied that the road
was to be used for any public purpose,
and alleged that II was to be built for
the exclusive use of the Divide Lumber
company. He also alleged that the road
was a constant injury and damage to
his ranch, as 1t cut II In two. The
ranch was bought and improved at an
expense of $4,000 for a stock ranch,
and the railroad company used the
spur as a switch and frequently ran
long trains out onto 1t and left them
standing there for hours at a time,
completely shutting of. all means of
going from one portion OF the ranch to
the other. After the road left the ranch
1t ran up on a public highway and OBJ
structed that also the railroad COM
pany having no right-of-way over 1t.
In his demurrer. Mr.. Shropshire ask
ed that all these allegations in Mr.. La
velrs answer be stricken out, for the
alleged reason that they did not con-
stitute a defense to the action. The
question was argued on both sides and
taken under advisement by the court.
Cost + .bz ng.
Joseph Richards OF the Butte Under
taking company was before Judge Me-
Hatton yesterday afternoon in re-
sponse to a citation requiring him to
appear and explain several charges
made against the estate of Edward
McShane. deceased. One charge was
SIS for a tin box and another was 800
for embalming the body and preparing
IL for shipment. Mr.. Richards charges