The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-03-16

mlneraliZed, just as Mr.. Mactariare
says all the rock in the alleged zone is
more or less mineralized. The entire
district could be called one lode If the
contention of the defendants is right,
and half the mines of Butte closed up
by injunction. He claimed that the de-
PENDANTS are not entitled to pursue the
ore to the Michael Dewitt; that the
Rarus has no extra-lateral rights; that
the lateral rights of the Johnstown do
not come into play into this case. and
that in any event the zone theory cam
not be construed to give the defendants
the right TO take the ore from the
Michael Dewitt. Mr.. Marshal's argu-
ment in support of his motion con-
sumed the balance of the forenoon and
part of the afternoon session.
Mr.. Vale replied to Mr.. Marshall He
said that whether this is OF is not
zone is SO clearly matter for the jury
to decide on the evidence presented
that unless the court should so instruct
him he would not go into the matter.
There is no doubt about that" said
Judge Knowles
Then / viii confine myself to the
first two matters-the lateral rights and
parallel end lines" said Mr.. Vale.
Mr.. Vale contended that ii the Rarus
did not exist the extra lateral rights
would be determined by the Johnstowh.
Without considering the Rarus a mo-
ment, the defendants wound control the
ore in dispute through the Juhnstown.
And without considering the Johnstown
a moment, the defendants Rave the
right to the ore IN controversy through
virtue of its Rarus ownership. He said
that the defendants nave the right to
the ore through own arshi1 in each claim
Independently, and not by virtue of the
combined ownership. He contended
hot f1A I4fA IL ~ Ia. q
ore by combining the Johnstcwn and
Rarus claims but by virtue of each
independently. He disputed emphati-
cally that the end lines of patented sur
face must be parallel in order to have
extra-lateral rights. Su h ruling would
revoutionize all mining law. The end
! lines of location must be .arallel. but
not the patented surface The cast end
! line of the Johnsto,s,l certainly is not
! parallel to the west end line Of the
Rarus, but the end lines of the Rarus
are parallel and the end Inns cf The
! Johnstown are parallel. It is only nee
\ essary that the location have parallel
| end lines, not the surface described in
| the patent which marks the boundaries
| of the overlapping Rarus and Johns
town claims. Mr.. Vale said in regard
to divided apex rights IN at should be
| considered a closed quas-:o by his
court, which has decided the matter
heretofore. The purpose of the law is
| to reward the discoverer.
| Governor Smith followed Mr.. Vale
also speaking for the defendants and
| covering much the same ground Mr.
| Forbs then made the final argument
for the plaintiffs. He said the question
| to be determined is whether a claim
patented in the shape that the Rarus.
Johnston was. is entitled to extra lat
| arpl RIGHTS dividend
question, he considered that the judge
had already decided this question In
! favor of the older locaton--the Rarus
Mr.. Lindsay followed Mr.. Forbis with &
few remarks enforcing the argument
| of Mr.. ForbiS.
Judge Knowles said he had intended
| to write an opinion on this matter, bu
had not had the time. 1t has been the
opinion, he said. of many that the right
to follow a vein or lode on its dip /.
new, that no such right is known tC
common law. Mr.. Lindley holds the
contrary view. The judge quoted from
| Mr.. Lindley and others in regard to thi:
point, it having been argued that this
| is in contravention of common law anC
should therefore be construed strictly
| A lode patent conveys the surface ant
| also all veins, lodeS or lodges and thu
right to pursue them where extra-lat
the apex of the vein is practically out
side of the plaintiffs premises, Their,
being only little of the apex in tn,
corner of the Michael Dewitt claim. A
| least. according to the evidence thu.
far introduced, the evidence of the de
PENDANT the apex is practically with
out the premises of the plaintiff anC
| hence the plaintiff cannot claim the
lode or ask damages for ore taken on
of it.
The judge said that a party can hav'
no right to a vein or to ores If the ape,
is outside of his ground. That is tn
| whole policy of the mining law-to sep
arate the veins from the surrounding
country. AS to the Rarus, the judg
said that he considers it has no extra
lateral rights. as the Johnston possess
es The judge overruled the motion 70
a non suit and said that no damage
could be asked by a party for taking
ore out of ground which it is not en-
titled to, and which 1t does not own
Court then adjourned until this morn
ing.