The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-09-08

that IL was entitled to all ore bodies
apexlns inside ITS lines; and that the
defendant permitted 1t TO hold that
belief by putting practical construc-
ton upon the deed favoring the be-
lief. He cited Parsons as laying down
this rule concerning how the acts oof
parties are to be taken with reference
to the practical construction of instru-
ments.
Now, if we show that the defendant
company had knowledge of the rights
we claim, through it's superintendent, it
is bound by that knowledge. There
fore it is perfectly competent for us to
show the situation of the parties and
the property, and to show recognition
by the defendant of the rights we
claim under the deed" said Judge Nc
Hatton.
The judge said that the plaintiff had
been mining outside it's side lines for
years, and that the defendant, by It's
acts, had recognized it's right to do so.
1t was competent to show this by evil
| dence, and the only way to do that
was to put witness on the stand.
Mr.. Patterson opened his reply by
| saying that the argument of Judge Nc
Hatton had smplified the matter.
1.-THE sum and substance of Mr.. Nc
Hatton's argument" said Mr.. Patter-
son, lis that the plaintiff has right
to apply the rule of evidence applicable
to ambiguous instruments to the deed
in question-which is not Ambiguous
for the plaintiffs benefit. We say that
the rights of the parties should be set
tied by the rules applying to such SOL
emn Instruments: and they want to
bring in rules only applicable to am
biguous Instruments.
suppose we reverse the proposition.
Suppose the deed had expressly grant
ed extra-lateral rights. and the plain
tiff had not seen fit to mine outside its
lines. Should it, for that reason, be
deprived of it's tra-lateral rights,
plainly conveyed" asked Mr.. Patter-
son.
He contended that the one point in
question was the ambiguity of the
deed, and that it was a plain legal
principle that till the plaintiff could
show an ambiguity it could not bring
in parole testimony to determine the
rights of the parties.
He said that because the superinten-
dent had failed to do something did not
affect the decided rights of the defend
ant.
The plaintiff had set up it's rights on
the deed in its complaint. If it failed
to get what it claimed on the deed, it
would take what it wanted on the doc
trine of estoppel, which had never been
mentioned as a basis for the rights it
claimed in its complaint.
He said that it was a simple propo-
sition-that the deed not being ambig-
uous, there was no room to bring in
eXtraneous evidence.
The arguments ended at noon, and
Judge Clancy reserved his decision till
the reconvening of court at o'clock.
and at that hour he sustained the OBJ
lection.
However, Judge Mediation went
ahead with another question of a sim
liar character so it was not apparent
what the defendant had gained by the
ruling.
Several questions were put by Judge
Mediation relative to Thomas COUGHS
position with the defendant, and to
what his labors were in 1895; to what
the witness did under direction of
Couch and the defendant company:
whether he made certain surveys of
the underground workings south of the
south side line of the decided ground;
whether he made maps and plats of
the surveys; to what was done with
the maps, and whether the defendant
company was extracting ores from the
ground named at the time in question.
These questions We're all objected to
by Mr.. Patterson on the ground that
the evidence was incompetent, irrele-
want, immaterial and secondary, and
the court sustained all the objections.
Then Judge Mediation asked the wit
ness IT, in 1895, the owners or the part
les then in possession of the decided
portion of the Johnstown claim and the
Rarus claim were engaged in extract
ing ore from ore bodies in the Pensyl-
vania ground south of the south side
line of the decided ground.
Mr.. Patterson made the same objec-
ton as before, and this time the court
overruled it, and an exception was
taken.
The witness said that ore was being
extracted.
A number of questions followed All
We're objected to, and in every case the
objection was overruled.
The witness testified that the defend
ant company was extracting ore from
points on the $50 and 500 levels in Penn
sylvania ground, and that the 450
workings We're connected with the $50
level workings of the Mountain View.
The witness said he had gained admis-
sion to the workings described, by per-
mission of the defendant and by means
of Rarus shaft No l.
Judge Mediation stated to the court
upon Mr.. Patterson raising an obiec-
ton to question by Judge Mediation
as to what the maps of the survey
made by the witness showed-that the
plaintiff had served a notice upon the
defendant asking for the maps in
question, and the defendant had failed
to comply with the request.
Mr.. Patterson contended that the
number of expert witnesses allowed
each side was eight, and that the plain
tiff had exhausted its allowance. There
fore Mr.. Trerise could not testify as an
expert. The deed of the ground, he
maintained, was the best evidence of
what belonged to the ground. There
fore Mr.. Trerise could not testify as
to that
The court thought that the deed COW
cred all the ore apeXing in the decided
ground, and that 1t was proper for the
witness to give evidence upon the
lodges. AS to the map, since it had not
been produced, the court was of the
opinion that secondary evidence was
admissible.
AT this point the counsel for the de-
PENDANT produced all of the maps de-
manded except one, which they claimed
they had never received or had in their
possession.
The witness was asked what the con-
tents of the missing cross section map