Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-02-11
GREAT SNOHoMIsH--TRAM
LITIGATION WILL BE
RENEWED.
HEINZE HAD NO RIGHTS TO ORE.
Which Was Mined and Carted Away
Through the Ra1us Shaft
M. o. r. Defeated.
Special to the Inter Mountain.

olJetlttl " tlle lnttE mountain.
Helena. Feb. 1.-THE supreme court
today handed down an opinion written
by Justice Pigott. reversing the order
Of the district court of Silver Bow coun-
tS by which an injunction was refused
the Butte 4 Boston to stop the mining
operations of the Montana Ore Purchas-
ing company on the Snohomish and
Tramway ground. and the case is re-
nlanded for a new trial. Other defend
ants and respondents are f. Augustus
Heinze. Arthur p. Heinze, as admnis-
traitor of James Larkin. deceased; and
Clara Larkin. The decision was given
upon rehearng for which the court
gives this reason:
Being inclined to the view that if
the provisions of house bill l, session
laws 1899, are applicable to contingencies
created prior to the passage of that bill,
the injunction was probably too broad in
its terms. we granted a rehearing, and
the cause has been again argued
The facts of the case are stated as
follows:
"Plaintiff and defendant Heinze are,
and since 1893. have been tenants in COM
mon of the Snohomish and TramWay
Defendant administrator and defendant
Larkin, as heir. assert that equitable
title to undivided interests of which the
plaintiff is legal owner, is in the heir, but
this is controverted ny plaintiff The de-
fendant, Montana Ore Purchasing COM
pany owns the Rarus. and this defendant
and defendants Heinze, had entered the
Snohomish and Tramway from the Rar-
us through the underground workings
of the latter: had mined large quantities
of valuable ore from veins of common
same through the Rarus shaft. and had
appropriated it to its own use-all with
out the consent of the plaintiff. These
acts they threatened to continue doing
In it's former decision this court reversed
an order of the district court refusing
To grant an injunction pen dente lite.
the effect of which was. in this particu-
la. case a direction of the court below
to issue the Injunction as prayed, re-
strainng the defendants from entering
upon and mining common property at
any place.
The court then goes into the considera-
ton Of the question as to whether tho
house bill was intended to apply to con-
testantS whose estates were in existence
when the law was passed, as we'll as to
thGse whose estates were created after it's
passage. If it dstulbs or impairs the
rights of co-tenants in previously exist
inS estates. it is repugnant to sections
and -, article 3, constitution of Mon
tana, ordaning that no person shall! be
deprived of property without due pro-
cess of law: also repugnant to due pro-
cess of law clause fourteen of the amend
ment to the federal constitution.
Co-tenancy came into existence under
the territorial law of 1865, which was
adopted from the laws of Illinois. 1t
provides that, when the property of CO.
tenants is not partitiOned, parts of those
who die first shall not accrue to sur
vivors but shall pass by devise. be sub
Ject to debts, ETC.. and be the same as il
deceased joint tenants had been ten
al is in common: that if any person shall
assume or exercise exclusive ownership
over. destroy or injure property held in
| joint tenancy. the party asgrieved shall
have ground for action in trespass
| or trover. This was a change from the
old common law which allowed the sur
vivor to inherit and allowed co-tenants
TO exercise exclusive ownership. The
court holds that the law of 1865 was in
tended to otter substantially the rights
of cO-tenin g, make viola IiOns of these
rights constitute legal injuries and des-
| ignate appropriate remedies for such
injuries. 1t holds that the words amy
| person in me section providing rem
| edy are intended To give one co-tenant
remedy against another Will as
against outside persons
1t further says: "Co-tcnancy in case
came into existence after act of 1865 be-
came a law. and before 1895. For one CO.
| tenant without the consent of the other.
to mine and remove ore from common
! property is unauthorized taking away
| and lessening in value of property with
| in the meaning of the meaning of the act
of 1865; it is a permanent injury thereto,
! and the principle declared in the act of
1868 at least as respects cO-teRacieS in
quartz and placer claims is that common
/ property shall remain entire until par
! tition. and that no one of the owners
| NAV without consent of other owner.
| work it or lessen its intrinsic value by
| mining or removing ore or deposits.
The code adopted in 1895 retains the
| act of 1868. With the omission of the
| words "of trespass or trover.' after
/ word action" in section providing
remedy. but the court holds this omis-
! sion makes no material change and
| that an injunction is the appropriate
remedy.
| The effect of the proviso added to