Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-08-14
Judge Clancy OverruleS the
Motion to Dismiss
THE ACTION IN EQUITY
Involving Title to the Vein of the
Pennsylvania Mining Claim
Other Motions Fell.

In the suit of the Montana Ore Purchas-
Ing company against the Boston & Mon
tana Mining company (the Pennsylvania
vein controversy, Judge Clancy over
ruled the motion today made by the de-
PENDANT last Friday to dismiss the equit-
able cause of action or not proceed with
the trial until an action at law had been
commenced and determined to settle the
question of title to the property and veins
or vein involved. When the motion was
first presented it was argued at length,
the entire day being consumed, n at
the conclusion of the proceedings the
judge announced that he would render a
decision this morning. All he said was:
"Gentlemen, 1 have looked up your au-
thority and have decided to override your
notion"
An exception was taken, and then Mr..
Forbis submitted the following motion,
which the cour also overruled:
Nov comes the defendant in the above
entitled cause and moves the court to try
the issues of fact arising in the above en-
titled cause under the pleadings before a
jury; that is to say: First, to submit to
a jury for it's consideration and findings
paA VI wv w NAS
pleadings in this court, and particularly
the questions of title and the identity n
continuity of the veins in question under
the pleadings herein; and, second, sub
init to a jury the question 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 p~leadings; that is, let
a jury determine which of the parties to
this action is the legal owner and entitled
to the possession of the said veins n
1odes, or either of them, or the said parts
and portions of the same"
This was followed by another motion
requesting that the court frame issues of
fact involving the question of title to the
premises and the identity and continuity
of the veins or vein, as well as the loca-
ton Of their apices, and that such issues
when framed be submitted to a jury for
determination upon the evidence to be
adduced by plaintiff and defendant.
This motion went the way of the 9TH
ers. and the deck was cleared for action.
The tables and chairs in the room We're
changed about to make room for the at
torneys and their paraphernalia, compris-
ing formation experts and maps show
Ing the various dips, spurs, angles. cross
cuts. raises. WINES, faults, walls, ore
bodies, shafts and drifts of the property.
There was also a model of the workings
of the Rarus mine. The hosting works
on the surface of the ground were repre-
sented by small copper shaft houses,
rather complete in outward detail, even
the Flagstaff on one being apparent. The
whole model was about five feet in length.
Before the real proceedings We're com
menced Attorney Patterson for the de-
PENDANT asked for an understanding con
corning the number of witnesses that
would be allowed to testify on each side.
The rule of the court confined the number
to five. John j. Mediation thought five
would be plenty. He expressed the be-
lief that If five persons could not present
a side in a clear and concise manner.
seven or more could not do it, and he
thought the court should enforce the rule.
1t would seem strange to him, he said. if
five gentlemen, expert in their profession,
could not present the plaintiffs side, and
1t would be equally strange if five could
not do likewise for the other side. BY
the number to eight the prin-
ciples of justice would be as fully upheld
and the rights of the parties as COM
subsurved as they would by hav-
ing a dozen or more.
In deciding the matter Judge Clancy
said experts were very partisan; he had
never known it to be otherwise. There
should be a limit to the number. There
We're two properties in dispute, and the
owners had ample means to employ 100
experts, but it would be foolish for them
to do SO, as the testimony would simply
be accumulative. 1t seemed to him that ,
on a side would do as we'll as 10, 20, !
40 or SO. More than five would be a work
Of supererogation. However" said he,
In closing his remarks. Il will allow Zach
Of you to lave eight"
In outlining that which the plaintiff ex-
poets to prove. Attorney Mediation used
a large map. showing the relative posi- .
-- = 49, ~r,, ~ NV ~ I
vania, Snohomish, Mountain View,
Smoke Stack, st. Lawrence, Michael
Dewitt, sullivan and Smelter claims. He
said his side would establish the fact
hat the vein of the ore bodies of the
had its apex within the
ines of the Johnstown, and then in it's
strike passed on through the end lines.
By reason of this fact the PLAINTIFF, he
said. was entitled to follow the vein on
It's dip.
Mr.. Mediation finished hts statement at
$50 o'clock this afternoon, and T. M.
made a statement in behalf Of
he defense, consuming the larger portion
IF the remainder of the session.. Among
Yther things he maintained that the deed
conveying the Johnson claim to the plain
tiff carried with it no mention of extra
rights; nor did it give the holder
the right to follow its veins to an unde-
.ermined depth. II call your honor's at
to the fact" said he. that the
claims a number of veins or
odes. If there are several veins or lodes
.hese gentlemen must determine to which
If them they are entitled. I would like to
them call out the law under which
he Johnstown was patented"
Peter Deschoolmeester has been grant
ID a decree of divorce from Justina De-
on the ground of desertion.
IN telling his story to Judge Clancy HI
'aid among other things that his wife
dASectad him hcaanco i