The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-02-25
ALL ARE IMPORTANT
A Number Of Decisions Rendered by
the Supreme Court
THE BIG MINING LAWSUIT
Mandamus Case Against A. B.
Cook Brought by the Capitol
Building Commission, Fa-
vorabie to the Latter.
Special Dispatch to the Standard.

Special Dispatch to the Standard.
Helena, Feb. 24-The supreme court
to-day returned a very important deci-
sion involving a disputed question of
whether a joint tenant could enjoin his
cotenant from working property alone.
The court holds that he can. Supreme
court also decides the mandamus case
against A. B. Cook, brought by the cap
itol building commission in favor of the
latter. The cases decided were: Ana
conda Copper Mining company. respon-
dent, VS.. Butte & Boston Mining COM
pany, appellant; from Silver Bow This
is an appeal from an order of the dis
trict court granting temporary injunc-
tion. Plaintiff sued defendant, claim
ing damages at $375, 900 by reason of de-
fendant's taking ore from a vein, the
apex of which was upon the wild Bill
ground. Plaintiff owned three-fourths
and defendant one-fourth of the Wild
Bill. Defendant worked the vein from
its shaft on the Grey Rock claim. which
was south of the Wild Bill. The lower
court found, upon hearing, that the
apex was in the Wild Bill ground. This
was only preliminary finding. and this
main fact will be determined upon trial
that there were sufficient facts before
the district court to sustain its decision
in granting the order extemporarily.
The important question was the one at
law as to whether a joint tenant could
enjoin his cotenant from working the
mine alone. The statute upon the sub
1ect is as follows:
Section self any person shall as
70 !, in
over, or take away, destroy, lessen in
value, or otherwise injure or abuse any
property held in joint tenancy or ten
ancy in common, the party aggrieved
shall have his action for injury in the
same manner as he would have if such
joint tenancy or tenancy in common did
not exist"
This statute came in with the codes.
July 1, 1895. The statute existing before
that date was identical, except that IL
gave to the aggrieved party remedy of
"trespass and trover" only. Those
words were cut out in the new statute,
which gives the party aggrieved rem
edy by action.
Two preliminary points were decided
by the supreme court; first, that mining
partnership, under the civil code of 1895,
llu uOL tAlSt, lOI llC TtdSOi lIeil W COA-
stitute a mining partnership, parties
owning claims together must be work
ing 1T. Here plaintiff and defendant
were not working the claim, but defend
ant was excluding plaintiff therefrom.
The other preliminary question was
that the matter of waste would not be
considered in this decision. The su-
preme court says that in many of the
Ill.
California and Pennsylvania, the work
ing of mine in a careful, skillful and
minerlike manner is not waste, but use.
The court passes this question, how
ever, without a decision, and bases its
opinion upon the first phrase of section
592. The statute gives the aggrieved
party remedy by action. If any one of
the several causes exist. The aggrieved
party may have his action If either his
cotenants have assumed and exercised
exclusive ownership over the property,
or If he is injuring. or wasting, or de-
stroying, or abusing, etc. One of the
grievances is the first one named, that
is the exercise and assumption of ex-
elusive ownership. This grievance ex-
listed in this case. For that grievance
the court holds the plaintiff may have
his action. The next question is what
action the aggrieved party may have.
AS noted before, in the oxpening, he is
not confined to trespass or trover, as
heretorofre. Therefore he may have
any appropriate action, exactly as If
there was no cotenancy.
The situation reduces itself then to
this: The plaintiff owned three-fourths
of the Wild Bill claim, and the defend
ant was taking the ore therefrom, US
ing and consuming II. The court holds
that injunction is the appropriate and
only adequate remedy, and that an ac-
counting, or action for damages. would
not be adequate, for plaintif must wait
until the ore is all taken away. then
he must prove its quantity, Its value
and the expenses of working and the
great mass of facts, which are pecu-
liarly within the knowledge of the de-
fendant who took the ore; whereas, on
the other hand, injunction would pre-
serve the property in kind and guam
tity and would render complete and
perfect relief. The question OF public
policy was argued in the case with
some force, the defendant contending
that If an owner of three fourths
could enjoin. the owner of one-fourth.
the owner OF one one-hundredth could
enjoin the owner OF ninety-nine one
hundredths. This is probably true.
Whesher this is good or bad policy is
question belonging 10 the legisla-
ture. and a question which they have
decided in very plain and clear Ian
guage Of section 592. Opinion by Jus
tice Dewitt.
Home Building & Loan association
OF Helena. relator. vs. Louis Rotwitt.
secretary OF STATE. The association
was Incorporated last November with
n capital stock Of 5000. and few days
afterwards the capital sock was in
creased TO 81. 100000. A resolution GER
tifying to such increase was presented
10 the secretary OF state for filing with
the customary fee OF s.. and the secre-