The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-03-08
IN THE SUPREME COURT
Opinions Rendered in the Five
Injunction Cases.
ALL IN FAVOR OF HEINZE
The Boston and Montana and the Butte
and Boston Were Defendants in
the Appealed Cases From Sill
yer Bow County.
Special Dispatch to the Standard.

Helena, March Tine supreme court
to-day decided five appealed injunction
cases from Silver Bow county, four of
which related to matters at issue be-
tween the Montana Ore Purchasing
company and the Boston & Montana
or the Butte G. Boston. The Boston &
Montana company figured in each of
the five cases, either as plaintiff or de-
PENDANT.
The Montana Ore Purchasing com
pany vs.. the Boston & Montana Con-
solidated Copper & Silver Mining COM
pany ct al, and the Boston q Montana
Consolidated Copper & Silver Mining
company VS.. the Montana Ore Pur-
chasing company, two cases alike in
character except that the plaintiff in
one became the defendant in the other.
were argued as one case and disposed
of in one opinion.
In the first case an injunction was
issued by Judge Lindsay enjoinins the
defendants from interfering with the
plaintiff in constructing a pipe line
across certain ground belonging to de-
PENDANTS, and from laying fiume
through a certain railroad embank-
ment. From an order refusing to dis
solve this injunction, defendants ap
pealed. In the, second case the plant
If. Butte & Boston. had the Montana
| laying the same pipe line, and appealed
from an order afterwards dissolving
the injunction. 1t appears that the pre-
decessors of defendants in 1892 granted
to +. A. HeinZe the right to flood and
store water for his concentration on
land owned by defendants; the water
used for this purpose came from Silver
Bow creek.
The Montana Ore Purchasing COM
pany, the successor in interest OF
Henze, found that it needed more wat
er for its works, and therefore COM
menced to lay pipe line from Park
canyon to supply the necessary water.
This pipe line was to be constructed
over the land Of defendants, who OBJ
jected to this proceeding. The question
for decision was whether plaintiff could
take the property of defendants with
out asking permission in order to con-
vey the water necessary for it's use, or
in other words, the plaintiff argued
that ii having an easement in the prop
erty of defendants, namely to flood and
store water thereon, the right to enjoy
that easement, which could only be
done by conducting the water neces-
sary for the flooding and storing over
! the land of defendants, was implied as
a matter. of law. Justice Hunt holds
| that in order to allow what the plant
| if is about to do, it must be shown
| clearly that ii has no other way of get
| ting water into it's reservoir than that
Of laying a pipe across defendants
| land: that to do so must not be merely
convenience but a necessity. This
| not appearing in the record to the sat
! sfaction of the court. the action of the
| district court is reversed in so far as
| ii applies to the laying of this pipe, but
the order is affirmed in so far as it pro-
hibits the putting in of a fiume through
/ I be rrlfI lNa mi ant &c
The second case is dismissed.
F. August HeinZe VS.. Boston & Mon
tana Consolidated Copper G. Silver
Mining company and Montana Ore
Purchasing company VS.. Boston &
Montana Consolidated Copper & Silver
Mining company and the Butte & Bos-
ton Consolidated Mining company, sim
| liar cases, were disposed of in one opin-
ion by Chief Justice Pemberton. They
were both Injunction suits brought in
Judge Clancy's court to restrain the de-
PENDANTS from using certain levels or
drifts underneath some lots in Fau-
cetts addition to Butte owned by
plaintiff 1t appeared on the hearing
of the cases in the lower court that the
defendants had been using these drifts
and levels for the purpose of hauling
their ore extracted from the Pennsyl-
Vania lode claim, adjoining the lots
| owned by plaintiff. to their shaft; de-
PENDANTS claimed that as they were
only using the drifts to haul their ores
and did not extract any ores from the
ground claimed by plaintiff. he could
not complain, since he was not injured
in any way. The plaintiff, however al
legged that these drifts and levels go
through large bodies of ore belonging
to him, and that part of the ores re-
moved by defendants are in dispute.
Judge Clancy issued an injunction,
pending determination of the suit in re-
lation to the ownership of the premises.
restraining them from entering the
drifts and levels for any purpose. De-
PENDANTS then asked the court to mod
ify it's order SO as to allow them TO use
the drifts so as to haul their ores from
the Pennsylvania claim, TO which
plaintiff asserts no title. This was also
refused, Defendants appealed.
The question before the court for de-
termination was whether there was a
reasonable showing before the lower
court as To authorize IL 70 issue the i'm
junction. Chief Justice Pemberton
holds that the records in these two
cases do not disclose any abuse of judi
cial discretion, which, in mining cases
| like those before the court for consid-
Grafton, it devolves upon the party
complaining TO show that the district
court mas been guilty of IN order TO
question it's ruling. Judgments in both
| cases are affirmed.
Daniel Connole er al. VS.. Boston x
Montana Consolidated Copper & Silver
| Mining company ct al, was an appeal
/ by the defendants from an order of
! Judge Clancy granting an interloeutory
/ Injunction restraining them from con-
] structing "a tramway over the surface
! of the Snohomish lode claim. on the
! trial it appeared that the plaintiffs and
| defendants are tenants in common of
I the Snohomish lode claim, each one of
! half interest therein; that defendants
! were about TO construct a tramway
across this lode. and that unless re-
strained from doing SO plaintiffs would
be irreparably damaged or compelled
10 bring u multiplicity of suits for
da ma ges.
nh. ntt.Nrln, nn.IGa,l in his t.ust. MS