The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-10-10
Condemnation of Property for
Dumping Grounds.
is IT CONSTITUTIONAL?
Point Raised in the Suit OF the Montana
Ore Purchasing Company Against
the Butte g. Boston-Demur-
rer Is Overruled,

the Montana Ore Purchasing company
against the Butte & Boston and the
old Colony Trust company. The plant
IN sued to condemn about 81 acres Of
ground in the vicinity Of the Montana
Ore Purchasing company's concentration
to be used as dump for tailings. The
action was brought under the law
passed by the last legislature giving
the right to private persons and corpor-
atoms to condemn property for Dump
ing ground for mills and for the pur-
pose of mining operations, designating
such purposes public uses
The matter came before Judge Clancy
at o'clock last evening on an order
to show cause why commissioners
should not be appointed to appraise the
ground sought to be condemned. The
defendants attorneys interposed a de-
murrer by which the constitutional
question was raised. John F. Forbis,
in presenting the demurrer, said the in
tentfon was to test the question wheth-
er the legislature could give such a
right and whether the use to which the
ground was sought to be put could be
classed as public use The legislature
saw fit to say ground might be con-
demned for such purpose, but the
question is still an open one and 1t will
remain for the courts to say whether
the legislative act is constitutional Mr.
Forbis said no courts or authorities had
ever gone to the extreme that the act
of the legislature sought to go. Mr..
Forbis referred to the New England
acts which permit owners of Touring
mills to dam water and overflow adj
Joining land because of the public ma
ture of the mills, but he said that even
in those cases the United States supreme
court held that it was not an exercise
Of the right Of public domain and the
land used was not condemned.
Mr.. Forbis also referred to the we'll
known Nevada decisions which permit
mine owners even to condemn ground
for the purpose of sinking shafts, but
he said those decisions went to the ex-
IRENE and were not sustained by other
courts and were not Endorsed by any
law writer's. He then cited a number
of authorities to sustain his contention
that concentration was not a public
enterprise and the ground sought was
not for a public use. If a smelter is
not public utility, said Mr. Forbis, the
legislature can no more give it the right
to condemn property than it could give
the right to private citizen to con-
denim ground for back yard. In New
ada it has been held that such con-
demnation for the operation of mines
and smelters is a public utility. but if
public utility is to be the test. stage
lines, hack owners, hotels and theaters
could with equal reason condemn prop
erty for their. uses. .--.-...-.
J. w. Cotter, replying to Mr.. Forbis,
cited the decision Of the state supreme
courtin well. known water right case,
and also referred to the case of the
Butte, Anaconda & Pacific against the
Montana Union railroad. He said MI
HeinZe' had erected his smelter at a
cost of 100000, and that it was as i'm
portant to the public as to private par
ties, and that he should be given every
necessary facility for operating it, The
public policy, as announced by the state
supreme court, is to encourage the de-
velopment of the mineral deposits in
our mountains, Mr.. Cotter referred to
another Nevada case, where the SUI
preme court of that state sustained the
owners of one mine in going so far as
to condemn for their own use the pri-
vate mining tunnel of another mine
owner, a decision that was sustained
by the United States circuit court of
appeals.
F. E. Corbett. also for the plaintiffs,
went more fully into the B.. A. & P. de-
cision in which an able and exhaustive
brief by the late Judge Kirkpatrick was
Endorsed by the supreme court in its
decision In that it was held that the
magnitude of the interests involved had
to be considered as well as the neces-
stiles of the localities. i was stated
that minnie is the dominant industry
in the state, especially in Silver Bow
county, upon which nearly all in
dustries are dependent 1t is the all i'm
portant pursuit and the prosperity of
the state is very largely due TO the de-
Velopment of the mining industry. If
mining in this state is not public ben
eft or public use, nothing is. said Mr..
Corbett
N n1n No
SAID the cases and instances cited by
Mr.. Cotter and Mr. Corbett had no feat
ures in common with the question I'M
der consideration. Their cases applied
to mines and mining. Mines, he said
We're located and fixed by nature and
could not be moved, but smelters and
reduction works could be. If the own
er of mine could condemn ground for
the purpose of operating his smelter,
he might as we'll condemn another
mans mine for the purpose of furnish
ing ore for the smelters.
Judge Clancy said he was in some
doubt on the question, but, according
to the law cited to him, he would have
to overrule the demurrer and hold that
Mr.. Heinzes reduction works were a
public utility and that the law was con-
sti.utional.
The hearing will be resumed this
evening, when evidence will be offered
to be condemned.
The defendants last evening also filed
an answer to the plaintiffs complaint
in the case, denying that the ground
sought has no value, but alleging on the
contrary that it is of great value for
| mining purposes. 1t is also alleged
that the greater portion of the ground
wanted by the plaintiffs consists of
railroad right of way. and could there
fore not possibly he used by the plant
ifs for the purposes stated, but for
some other object and purpose unknown
to the defendants. 1t is further alleged
by the defendants that their own smell
ter is located near that of the plaintiffs
and that in the operation of it the
whole of the ground wanted by the
plaintiffs, except that covered by the
railway right of way, will be required
by the defendants as a dump for tail
inEs.