The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-09-10
THE GREAT MINING SUIT
The Session Was Spent Mainly
in Argument.
The LOCATION NOTICE
Its Admission as Evidence Strongly Ar.
gued by Mr.. Scallon &C. J.
Hughes Spoke for the
Plaintiffs.

| Yesterday was another day of legal
| argument in the great mining suit of
the Montana Ore Purchasing company
against the Boston & Montana COM
pany. The objections to the introduction
of the original location notice of the
pennsylvania claim were argumenta-
lively contested all day, as upon the
preceding day; and at the conclusion of
the arguments Judge Clancy announc-
ed that he would reserve his ruling till
10 o'clock Monday morning. zen t1ss
| The arguments yesterday, were made
by William Scallen for the defendant
and G. j. Hughes for the plaintiff. Mr..
Scallon finished the argument for the
defendant short time after the, court
convened in the morning, and Mr.
Hughes consumed sthe rest OF, the day
till o'clock in his argument in re-
buttal for the plaintiff ~ ri
| The gist of Mr.. Scallons argument
was that the patent of the Pennsylva-
MIA claim relates back to the location
notice and is conclusive of all matters
| preceding it. Therefore the location no.
| tlce was properly admissible in evi-
dence as the basis of the patent. Mr..
Hughes took the ground that the oca-
tlon notice was void on account of ir-
regularities connected with 1t, and that
| the patent was conclusive only as to the
discovery and location of the mining
| claim, but did not determine the date
| OF the location; that on account of the
| 1nValidity of the location notice the
| patent did not relate back to it, and
| the location notice was not properly
| admissible in evidence.
The case will be resumed on Mon
| day morning at 10 o'clock
| At the opening of the case the argu-
| ment of Mr. Scallon upon the objections
raised to the introduction in evidence
| or the Pennsylvania original location
| notice and other documents was con-
| tinued.
May it please the court, / see that
| l have already taken up too much time
in my argument. My excuse is that
could not dispose of the matters under
treatment in less time. / crave the in
diligence of the court for while lon
ger said Mr.. Scallon, in resuming.
| He stated that he understood that the
counsel for the plaintiff hold that in or
der to claim vein below a junction
the claimant must admit that there is
junction and claim it as the older To-
Gator in the manner of a confession
and avoidance. He said this could not
become the situation in the case at trial.
because issue had been Joined as to the
ownership of the vein. The, defendant
has. right to assert it's title, or the
title of third party. Mr.. Scallon read
decision authorizing a party to show
title in himself or possession. This
| might be done without setting up spe-
cial pleadings. 80 .-%
Mr. Scallon said that in the case of
joint veins the questions were who owns
the apexes, the veins and the junction.
I'VE have a right to put in any evil
dence to defeat plaintiffs title and
show title in ourselves" said Mr. Seal
Ion.
ITO sum up the argument 1 have had
the honor to submit, / contend that the
Montana authorities conclusively show
that the validity of the location notice
is not open to question. We take the
view that where a location notice is a
part of a patent record, the record is
conclusive" said Mr.. Scallon.
IF the date of a location appears in
the proceedings leading up to a patent
the decisions hold that the patent re-
lates back to the date. There is nothing
in the old Telegraph case in conflict
with the Montana decisions said Mr..
Scallon. THE Montana decisions hold
conclusively that the patent fixes the
sufficiency of the locations"
Mr.. Scallon said that he had offered
chain of title connecting the locators
with the patentees, among whose num-
Der they were. The decisions hold that
ii is proper to do this, and that the ap-
plication for patent is admissible in evil
dence.
Mr.. Scallon repeated his argument as
to what it is necessary to show in a
location notice regarding the bounda-
ries of a claim. The notice must refer
to natural objects that will indicate the
boundaries as to position. Lines and
distances are not necessary.
At the conclusion of Mr. Scallon's ar
gument, c. J. Hughes of counsel for the
Montana Ore Purchasing company took
up the closing argument.
The chief question is that upon the
admissibility of the Pennsylvania loca-
ton notice. We were told yesterday
that the patent is conclusive; that we
can't inquire into the location without
attacking the patent But every man
must have his day in court before his
rights are adjudicated Where did we
ever have chance to inquire into the
validity of the Pennsylvania location
notice. said Mr.. Hughes.
"A patent cannot go back beyond
where the location notice has a valid
existence" he added
He said that the plaintiff had no right
to attack the patent, but that the
Pennsylvania patent says expressly
that it conveys no rights to sub-surface
veins that apex in other claims
The theory upon which the defendant
wished to base its claims was the doc
trine of relation from the patent back
to the location notice.
The Johnstown patent is older than
the Pennsylvania patent, but the de-
PENDANT wished to go back to the ioca-
ton notice to gain priority in that way.
But it could only go back to valid To-
cation notice.
Mr.. Hughes said that nowhere in the
pleadings did the defendant claim
title to the Pennsylvania ground, and
that it could not claim the veins I'M
foreground on the theory of joint speXes
without stating the claim in the plead
ings. There is nothing in the pleadlngs
to warrant the claim in the trlai thas II
has another apex in its ground to the
veins apexing in the plainthS SrDdnh.
And If the defendant has not another
apex, the notice of location is absolutely
immaterial as evidence.
Mr.. Hughes said that there Is not an
authority in existence that holds that