The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-02-19
IT'S ARGUED ALL DAY
How the Law Extracts Ore From the
Big Mines.
AN IMPORTANT OBJECTION
After Both Sides Contend. Judge
Mediation Overruies 1.-THE q.
and M.-Lexington Case Is
Continued TIL To-Day.
AN IMPORTANT OBJECTION

The Butte & Boston against the Lex
ington concluded its testimony yester-
day afternoon. The last witnesses
were Superintendent Rueger and Fore
nan Vatchieri, who testified in regard
10 the amunOt of ore taken out OF the
disputed ground and the extent OF the
lamage done by the Butte & Boston
n filling up the Lexington workings
With waste. Mr.. Vatchieri was ques-
1ioned in regard to some trespass al
legged to have been committed by
Butte & Boston leasers, but Mr.. Forbis
objected to the testimony on the
ground that the company could not be
held responsible for the acts of the
leasers.
THAT is just what you are trying to
hold us responsible for" replied Mr..
Dixon. Judge Mediation said that I'M
less it was shown that the Butte a.
Boston had knowledge of the location
of the ore taken out by the leasers,
the objection would be sustained. In
passing on the question he said the
court had heretofore described that
where party pretends to be the owner
of certain ground or a vein Of ore and
leased ii to other parties and in the Or
binary operations a treSpasS was COM
mitted the lessor was responsible. On
| the other hand, the landlord could not
| be held responsible unless it was shown
| that he participated in or had
/ knowledge of the act of trespass. III
| the lessee, without the knowledge of
! the landlord, left the vein, and by
| workings or cross-cuts entered outside
the leased vein and committed a tres
| pass, the landlord could not be held re-
| sponsible. If in this case Ii were
| shown that the landlord placed the
! lessee in a position by giving him a
lease or a vein so that the ordinary
oh. 10 nd
lord knowledge of the acts the land
lord would be held responsible. This
| would be particularly true as to end
| lines. If the landlord participated in
| the profits of the ore extracted by re-
| ceiving a royalty and had knowledge
of the place where the lessee was work.
ing, there would be no question as to
his responsibility.
| The court took occasion to repeat
that where a party claims, as the Lex
| ington company does, the apex of
| vein and the right to follow il on its
| dip beyond the vertical plane drawn
| downward through the side lines and
| leases the right to extract the ore, the
acts of the lessee are the acts of the
principal. The defense did not offer
TO prove that the Butte & Boston had
knowledge of its leasers' acts. and the
objection to Vatchieri's testimony was
sustained and the derense announced
/
plaintiffs called e. S. Larned, an en-
gineer of the Butte & Boston, to the
stand to testify i'm rebuttal.
| Mr.. Larned had another large in
stallment of maps showing the under
ground workings of the Wappelo, but
before he could proceed far with his
testimony Mr.. Dixon asked the pur-
pose of the offered evidence. Mr.. Forbis
said ii was intended to rebut the de-
PENDANTS testimony on the question of
the apex, whereupon Mr.. Dixon object
ed to the testimony as not being prop
er rebuttal. He said the testimony was
| evidence in chief and not rebuttal and
cited tho sections of the codes referred
to in the Standard yesterday morning.
The testimony was but another method
OF showing ownership of the ore in dis
pute. The question of the apex was
material only as going to show who
owned the ore. 1t was necessary for
the plaintiff to prove its ownership
There were different ways in which
that might have been shown. One way
was by relying upon the broad pre-
sumption of law that everything in the
ground belonged to the owner of the
surface. That was the method adopted
, by the plaintiff. They made out q
| prima facie case and rested there
There was another way to prove own.
! ership, and that was by prov.
ing that the apex of the weir
was in the plaintiffs ground, but tina
was not their method. They chose L
/ rely on the presumption that every
, | thing under the surface belonged Z
them. They could not prove half thei
case in chief and the other half in re
| buttal. They relied on two titles to tn
property-one that everything in tn
ground belonged to them and the othe
that they had the apex. They sough
to prove one title in chief and the othe
/ L.. -. II.
the defendant not within the rule O
evidence according to the statutes Sec
ton 1850 of the code of civil procedur
says that the party on whom rests tn
burden of the issues may briefly stat
= his case and the evidence by which h
expects to sustain II and that the part
will then be confined to rebutting ev
dence unless the court, for good rea
sons, permits them to offer evidence 1
the original case. Section 1920 say
that the party holding the affirmativ
must produce the evidence to prove 4
l Section 1870 says the order of proc
must be regulated by the sound discrC
ton of the court, but that ordinaril
the party beginning the case must ca
: haust his evidence before the othe
party begins. Clearly the plaintiff di
not do that and did not ask the coul
for exercise of it's discretion. The
claim the testimony in rebuttal as the
right. 1ney proceeded In chlef TO sho
y the existence of a certain state of fact
and the defense then followed to estal
lish different state of facts and the
the plaintiff sought TO show still al
other condition after they hod foun
n out all they could from the defens
y and were therefore enabled to fix U
70 I their testimony TO fit their case. NJ
Dixon cited a California decision
= support OF his objection.
III Mr. ForbiS sn replying. said the Que
-e ton as 70 the burden OF proof in u
. case was a very nice question and TIL
there were two lines OF decision on Il
l. matter. but that the question as
IS what was proper rebuttal testimor
Dr. was different from the question of q
- burden of proof and upon that prop
10 sition the decisions were uniform. IT.