The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-07-25
BY THE SUPREME COURT
A New Trial Ordered in the B. &
B. VS.. the Lexington Co.
JUDGMENT FOR $125,OOO
The B. & B. Secured 1t, but the Verdict
Was Set Aslde-The Courts Ruling
as to the vexed Question OF
Identity and Continuity.
Special Dispatch to the Standard.

| Helena, July 24.-The big mining
suit that was tried in Butte when
Judge Mediation was on the Sench at
| Butte, when the Butte G. Boston COM
pany secured a judgment against the
| Societe Anonyme des Mines de Lex
\ ington, better known as the Lexing-
ton Mining company, for $125,000, will
| be tried again, as the supreme court
| to-day affirmed the order of Judge
Mediation in granting new trial.
| This was the action in which the
| Butte & Boston sued to recover the
value of ore taken from vein beneath
| the surface Of the Wappelo lode claim.
The plaintiffs own the south and west
portions of the Wappelo and the de-
| fendant the northeast portion. The
| Wappelo was formerly owned by A.
j. Davis and both companies acquir-
| ed title to their respective portions
| from him. The Lexington company
entered beneath plaintiffs part of the
! claim and extracted ores; therefore
| the question upon which the recovery
! hinged was whether the vein from which
! the ore was taken had its apex with
| in the surface boundaries of that por-
! tion of the Wappelo owned by the de-
| fendant, or had it's apex within the
| ground owned by the Butte & Boston
/ company.
Considerable expert testimony was
adduced al the trial, those testifying
! for the plaintiff claiming that the apex
! of the vein in controversy was in its
| ground, and that it was wholly dis
connected with any vein in defendants
! grounds, while experts for the defend
ant testified to the reverse. After the
jury had returned verdict of $125,-
! 900 for the plaintiff the Lexington com
! pany moved for a new trial, basing
| its motion upon errors in the instruc-
tions and the insufficiency of the evil
dence. The lower court, upon the
| showing made, granted the motion and
the Butte 4 Boston appealed.
Justice Hunt, for the supreme court,
| exhaustively reviews the principal
points raised on the appeal. devoting
many pages to a discussion of the in
| tricate legal problems presented, 60
ing thoroughly into the matter of the
continuity and identity of a vein, "A
subject upon which the trial judge
| gave elaborate instructions because in
them the court had established con-
tinuity as the sole and exclusive. test
of the right to pursue the vein on it's
| dip, while the question of identity was
ignored. The court came to the con-
clusion that the instructions on this
point were erroneous and that Judge
| Mediation was right in granting new
trial
In discussing the case the supreme
court says: The learned judge of the
district court who tried the case grant
| ed the motion for a new trial upon the
ground, among other things. that un-
| der the federal statutes granting own
ership of veins and giving to locators,
| or owners, of quartz lode mining
claims, the exclusive right to posses
sion and the enjoyment of all the sur
face included within the lines OF the
! location and of all veins. lOdes or
| lodges throughout their entire depth,
the top or apex of which lies inside Of
| said surface lines. extended down Ver-
! tically, although said veins or lodges
may so far depart from a perpendicu-
| lar in their course downward as to
! extend outside of the vertical side
| lines of such surface locations, the
| substantial fact to be proved by the
| lode claimant who seeks to DaSs be-
| yOnd his side lines so projected is that
the vein he is pursuing is the id antcal
| vein which has its apex within his
| surface boundaries. and that if it he
| the identical vein the fact that its con-
! tinuity has been broken is not deter
minative of the lack of identity, which
is the test of right in such cases. The
| right of an apex proprietor to pursue
vein passing from his side lines is
! dependent upon whether or not, ;ts a
vein matter which lies outside Of the
perpendicular Of the side lines If his
| surface claim is so preserved in its
identity with the lode inside that it
| is part of the same vein. the apex of
| which belongs to the surface owner.
THE solution of this question, net
infrequently arising in problems Of
mining litigations. is often Ver% ;iou-
blesome, and it is in formulating a
charge to jury upon the elements in
| volved in the inquiry that Judges en-
| ter upon what Justice Miller sCme
years ago characterized as a delicate
| task and a matter of extreme diff
| Guilty. Judges under our system can
| only prescribe rules of guidance With
relation to general principles; they can
not exactly apply these rules, though
| it is in their application that half the
extreme difficulty arises, for the jury
has its duty to be performed, and 1t
cannot be interfered with. On pTln-
! ciple, the identity of the apex o. a
vein with its spurs or extensions must
| be the crucial test by which are to
be fixed the proprietary rights To that
vein and the mineral therein. The
pursuit of the vein on its dip being
then the right to be guarded, the :den-
tity of the vein pursued must be prov
ed to make the right available where
1t is contended the vein, after passing
| beyond a vertical plane drawn through
| the surface boundaries of the ,catian
in which rests the apex, penetrates soil
| the surface of which is embraced with
| in another location. Identity must al
| ways exist. Were there to be any de-
parture from this rule the miner might
| secure the benefit of more than he dis
| covered, which was never contemplat-
| ed by the law. Identity in mineral
| deposits should have no significance
not usual to identity of many other
| mineral things. 1t means the same
thing or the same vein. 1t may be
said to include a vein that is in"es-