The Anaconda standard., 1899-08-15
Jury Trial Denisd in the Johns.
town Case.
EIGHT EXPERTS ALLOWED
Judge Clancy Said Five Were Enough.
The Trial OF the Big Case Begun
in the District
Court.

ms SoifpdHy TO dismiss the suit
brought by the Montana Ore Purchas-
ing company, known as the Pennsyl-
Vania case, and also denied the defend
ants claim of right to a trial by jury.
HE also made an order limiting the
number of expert witnesses to eight on
each side. The Boston & Montana COM
pany' had moved to dismiss the suit,
which stood for trial as to it's equity
cause of action, the legal cause hav-
ing previously been dismissed by the
plaintiff, or to suspend the action until
such time as a new suit at law was
brought by the plaintiff and the title
and ownership of the veins and ore
bodies in controversy were determined
Gentlemen, / have looked up your
authorities and have decided to over
rule your motion to DISMISS said
Judge Clancy a the opening of court
yesterday morning.
Also the motion to require the plain
TIN to institute an action at law?"
asked Mr.. Forbis.
Yes; l don't think it is at all neces-
sary," said the judge.
Mr.. Forbis then presented a motion
| in behalf of the Boston & Montana de-
manding jury trial, the motion read
| ing as follows:
| Now comes the defendant in the
above entitled cause, and moves the
| court to try the issues of fact arising
| in the above entitled cause under the
pleadings before a jury, that is to say:
First, to jury for it's considera ton
and findings all questions of fact pre-
| sented by the pleadings in this cause
and particularly the questions of title
and the identity and continuity of the
| veins in question under the pleadings
| herein; and
Second, submit to a jury the ques-
| tion of title to the veins and lodes. or
| the several parts of the veins and lodes,
or the vein and lode, put in issue by the
pleadings; that is, let jury determine
which of the parties to this action is
the legal owner and entitled to the pos
| session of the said veins and lodes, or
| either of them, or the said parts and
| portions OF the same"
| We'll, the court declines to do So"
was the ruling on the motion.
| Mr.. Forbis, on the theory that the
action was an equity proceeding purely,
| submitted the following additional mo-
| ton:
Now comes the defendant above
named and moves the court that the
court frame issues of fact involving
| the questions of title to the premises
in controversy herein, and the identity
and continuity of the veins or vein in
| question, as well as the location of the
apices thereof, and that such issues,
when framed, be submitted to a jury
for determination upon the evidence to
be adduced by each plaintiff and de-
| fendant herein"
We'll, I've got no jury said the
court, 'and in an equity case a jury is
only advisory. anyway, as it is not
necessary. | decline to do that
The question as to the number of wit
ness each side should be entitled to,
was then raised by Judge Mediation,
representing the plaintiff. He called
attention to the general rule of court,
which limits the number of witnesses
on any one question to five, and said
the plaintiff would abide by that rule.
r. NJ. Patterson, of counsel for defend
ant, announced that they had 10 expert
witnesses and expected to use them,
and Judge Mediation said he would not
consent to that number. After consid-
cradle argument on the question, Judge
Clancy said his experience with expert
testimony was that they were as par
tisan as lawyers on the side upon
which they were engaged, and he be-
lieved that five We're good as 10, 2C
or 40. and that enough was as good
as a surplus The court, however
| finally fixed the number at eight and
said that if later in the trial showing
was made that would justify him in
| doing so he would extend the number
Judge Mediation, however, objected tC
that, and the court placed the number
positively at eight.
, Prepare tiuns were then made to pro
ceed with the trial, and the plaintif1
brought into court number of bis
maps and the ingenious glass mode
; used in the Michael Dewitt case, show
5 ing all the workings in the Johnstowr
and Pennsylvania claims and other con-
ditions in the ground, ana the hoistins
works on the two claims.
Judge Mediation, for the plaintiff
read the pleadings and made the open
ing statement to the court, outlining
the case as they expected to prove it
He said the issues We're simple. Th
plaintiff claims that the apex of TIL
ore body in the Pennsylvania ground
upon which the defendants are work
ing, is in the Johnstown claim, thu
} property of the plaintiff, and tina
the vein on it's dip passes beyond tn
south side line of the Johnstown ant
| into the Pennsylvania claim. If that i
proven, a judgment in favor of th
plaintiff for the veins and ground IL
, controversy is expected.
, Judge Mediation said it would b
shown beyond any doubt or question
that the apices of the ore bodies II
controversy are within the boundarie
l of that portion of the Johnstown CLAIM
owned by the plaintiff. The continuity
: the vein from the Johnstown has beel
shown by actual workings in the or
. | dinary course of mining operations car
D ried on by the plaintiff before any con
= troversy arose between the piaintlf
| and the defendant as to the ownership
, | of the ore bodies in question. tn
, Johnstown and Rarus claims were con
| ficting locations. the former being tn
later location, covering the greater por
ton of the Rarus. Both were patente
: under a compromise arrangement be
: tween the locators of the two claims
by which a triangular piece OF sroun
of the Johnstown claim upon the Raru
was decided to the latter this piece, Q
; ground containing an area OF nearl
: seven acres. 1t is in this piece O
l ground that the apex of the dispute
T ore bodies is, according to the conten
tions of the plaintiff. The latter, sal
5 Judge Mediation, maintains the righ
under the deed, to follow the vein o
it's dip and to it's uttermost depth. TIL
: attorney said the deed would cut
d important figure in the case.
/ NJ Patterson follOwad with a ST It