The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-04-30
IN SUPREME COURT
That Body Hands Down -Four I'm
portant Decisions.
THE HOPKINS SEWER CASE
Judgment OF the Lower Court
Affirmed--Boston d Montana's
Placer Claim Holds Oood--
Remanded For New Trial.
Special Dispatch to the Standard.

Special Dispatch to the Standard.
Helena, April 29.-The supreme court
to-day handed down four opinions.
Olivia w. Hopkins. appellant. VS.. The
City of Butte. respondent. Plaintiff
sues to recover from defendant 81. .02S.50,
paid July 2S. 1891, by her to the city on
I. a special assessment for sewer tax. Ap-
pellant claims she paid the tax under
protest. and that the tax was illegally
levied and void. and that the payment
of it by her was compulsory. She
pleads that no resolution or ordinance
of the city council was ever passed
authorizing the building OF the sewers
for which her property was assessed,
and that the assessment was illegal, in
that the city does not possess the power
to levy any special assessment for sew
er purposes; that IL she had not paid
the tax her property. upon which the
tax was claimed to be a lien. would
have been sold. The city entered n
general denial to the complaint. The
case was commenced, and at the con-
clusion of the plaintiffs testimony a
motion for non-suit was made on two
grounds; first. that the evidence shows
the payment of the tax was voluntary,
and not under protest, mistake or
threat; and second. that her claim had
never been presented to and allowed
or disallowed by the city council. The
court sustained the motion. and from
this order and judgment in favor of
the defendant, plaintiff appeals. After
lengthy review of the case. Justice
Hunt says: Under the great weight of
authority and reason. the law looks
with disfavor upon suits to recover
back taxes, where dissatisfaction and
unwillingness to pay. rather than COM
pulsion to prevent the immediate exc
cution of a levy or seizure. are the
causes which prompt the protest. The
judgment is affirmed.
Butte & Boston Mining company. re-
spondent, VS.. Mary Sloan, administra-
trix of the estate of John Sloan ct al,
defendants; an appeal from the dis
trict court of Silver Bow county. The
action is in the nature of ejectment
for mining ground. The mining COM
pany claimed the property involved
under placer patents. The defendants
claimed portions of the ground by rea-
son of quartz lodes which they claimed
existed at the time the company made
application for the patents as placer.
The plaintiff company denies the ex-
istence of any mineral vein upon the
property. The case went to trial be-
fore a jury, which returned a general
verdict for the plaintiff and special
findings by which it held that no ore
veins had been discovered on the
ground in dispute. The defendant
moved for a new trial and the motion
was overruled. An appeal was taken.
Justice Hunt. in writing the opinion,
says: The questions involved were all
questions of fact to be answered by the
jury after examining the evidence.
The supreme court, after reviewing the
testimony, is Of the opinion that the
verdict of the jury was warranted by
the facts brought out on trial and that
no lodes exist on the ground. The or
der of the lower court in denying
new trial is therefore affirmed.
Montana Lumber e. Manufacturing
company. appellant, VS.. the Obelisk
Mining & Concentrating company. re-
spondent. An appeal from Silver Bow.
This case was decided last September
by the supreme court. 1t was owed an
attempt to foreclose a lien on certain
improvements to the company's mill
in Jefferson county. The former opin-
ion by the supreme court says in part:
ID ilO utllldi lDdl the improve
ments described in plaintiffs lien were
wholly added to the leased premises
by the lessee; and If that be true, the
same are subject to plaintiffs lien.
The judgments should therefore be
modified by decreeing the foreclosure
of plaintiffs lien upon the structures
described therein. and shown to have
been placed on said property entirely
by the lessee. The cause is therefore
remanded for modification OF the judg-
ment in conformity with the views
herein expressed. On the remititur to
the district court the court declined
to modify the judgment by including in
the property. upon which the lien was
to be foreclosed, a certain boiler and
engine. 1t was the law of the case,
as then decided. that those improve
ments were subject to plaintiffs lien
The district court is now instructed
to do that which II was ordered to do
in the former opinion-to modify its
original judgment by including the
boiler and engine In the property upon
which the lien Is to be enforced.
Geoffrey Lavelle and Thomas La
velle. respondent, VS.. Hattie Frost, ad-
ministratrix of the estate of James
w. Frost. deceased, appellant; from
Silver Bow county. This Is an action
upon a bill of exchange. A firm by the
name of Mcclure & Anderson repaired
a house for James w. Frost 1t was
claimed by he plaintiffs that Mcclure
& Anderson owed them for lumber
which went into the Frost house, and
Frost owed Mcclure & Anderson for
their services. The latter gave an or
der upon Frost to pay plaintiffs s42s.
which order Frost accepted orally. The
acceptance of the order was denied by
the defendant. The case went to trial
and the jury found for plaintiffs and
judgment was entered for them for
S27S. The supreme court decides that
the lower court erred in not permitting
the defendant to introduce certain tes-
timony by Mcclure, which might have