The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-03-26

extensive crack. There is no such crack
any where else. Mr.. Vale. l believe,
called IL a lightning rod sent up to the
surface by the plaintiff. 1t is a most
extensive lightning rod. for at the l50-
foot level OF the Rarus lode IL is % feet
wide. This lode goes down to the 45O-
foot level. and besides going into the
ground In dispute, upon which there are
many workings, IL goes east some 500
or 600 feet. The fact that this vein or
lode is within what may be called a
mineralized o does not change Its
character or the rights of the parties.
The patent to the Michael Dewitt
ground granted TO the owner thereof
all the veins having their top or apex
In the said ground. The claim of any
right of the owner of the Johnstown TO
pass through the Rarus INTO the
Michael Dewitt lode and extract ore
therefrom cannot be maintained as "A
matter of law. There are many other
eason that might be shown for my
course.
Il have determined therefore to
shorten your labors. I instruct you
that the ore i'm dispute In this case lies
i'm the Windlass vein. n in that part
of the same which belongs TO the plain
tiff. ! instruct you therefore that you
must find a verdi for the plaintiff and
assess his damages at the value of the
ore in the said vein. where Il was i'm
the vein before the defendants ex-
tracted IL. The parties have asked of
me some instructions on this question
of damages, which / give you.
The plaintiff. in his complaint. lays
his damages in the sum of $3.50, 900. that
being the alleged value of five-sixths
of the ore taken from the 450-foot
Bryan and Mckinley Slopes on the
Windlass vein. No damages are claim
ed in this action for ore taken from
the north vein. In his answer the de-
PENDANT. the Montana Ore Purchasing
company, admitted 1t had taken 1909
tons of ore, of the value of SAG, ia. ON
the trial II amended its answer by ad-
hitting IL TOOK l., l63 tons Of ore OF a
value of $21. 200. Mr.. Hand testified
that the quantity of ore taken from the
450-foot slopes was 3,l13 tons. averag-
ing 21.S2 per cent copper and 1867 ounces
of silver: that the ore taken from those
slopes. IL mixed by lessees and sold on
the market. was claimed to be of a
value Of $s1, 263.S 3. II mined by one
with facilities for smelling ore i'm a
proper and ordinarily constructed
smelter, IL was laimed to be of the
value of sil3. 900. The quantity of ore
taken from the Bryan slopes which "a
leaser would handle to advantage
amounted to 1875 tons, averaging
1881 per cent copper and pa ounces
silver. h total value testified To by
Mr.. Hand being $22. SIS 5, IL mined
by one who had facilities for smelling
the ore in a proper and ordinarily con-
structed furnace. The quantity of ore re-
moved from the Bryan stope was s.
ALB tons. averaging SCI per cent cop
per and SO ounces silver. OF the value OF
$25. 900. Mr.. Gillie testified that the
quantity OF ore available to lesseees.
taken from the Mckinley stope, was
4.449.6 tons.of the value of $21. 900. Mined
by one with facilities for smelling ore
in q proper and ordinarily constructed
smelter. the quantity was 5.1S3.1. OF the
value of s24. 1858. 80. The defendant gives
testimony tending to show that he kept
no separate account of he ores taken
from the slopes in question, or OF high
grade and low grade ore.
THE damages awarded must afford
complete indemnity for all injuries &C.
casioned to plaintiffs property by the
defendants wrongful acts.
The defendant is not TO be permitted
to profit by wrongful acts. and IL is
bound to account to the plaintiff for all
damages IL derived, or which by proper
management IL could have derived from
the manipulation OF ore ~wrongfully ex-
tracted from plaintiffs premises and re-
duced by IL. In ascertaining the dam
ages occasioned plaintiff. the jury may
ascertain the quantity OF merchantable
ore recovered. and its usual value. and
allow the plaintiff the market value
Of the metal which would. in the ordi-
nary course OF business. be produced
from such oresafter deducting therefrom
the costs OF extraction and hosting the
ore from the mine and reducing IL in a
proper smelter OF the character existing
In Butte at the time OF the trespass.
making close allowance for the losses
incurred In the various processes OF
reduction. Five-sixths of the sum thus
AsraFfQfnad HOnsftfnfa the measure NJ
damages which plaintiff Is entitled 70
recover as that constitutes the extent
OF his ownership and that of his as
signor at the time OF the commence
ment Of the action for which complaint
Is made.