Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-04-01
A CONFLICT OF BOUNDARIES
4 MILD ROAST FOR THE LOWER
COURT ON THE QUESTION
OF PROCEDURE.
SHOULD HEAR BOTH PARTIES
Before Announcing Decision as to an
Appeal-Burden Of Proof on
Defendants.
Special to the Inter Mountain.

Special to the Inter Mountain.
Helena, Mont, April 1.-The supreme
court today affirmed the order of the
district court of Silver Bow granting an
interlocutory injunction to James H. Ma
loney, G. p. Drennen and Pat Mullins,
owners Of the Plymouth mine at Butte, to
prevent Silas F. King, Wakeman Sut-
ton, with whom Marcus Daily, James A.
Murray and James A. Talbot are made
co-defendants, as owners of the Silver
King, from taking ore from beneath the
surface of the Plymouth, which adjoins
the Silver King on the south. The decis-
ion was rendered by the supreme court
on appeal of King, ct al.
In the lower court, the plaintiffs sued
for $3.50, 900 damages for ore already taken
out and for an injunction restraining the
defendants from entering that part of the
Plymouth west of the vertical plane pass
ing through a point on the north side
line 405 feet distant from the northeast
corner and from taking out ore. Defend
ants deny having entered the Plymouth
or mined any of it's ore, and say Daiy,
Murray and King own the Silver King;
that the vein they were working has it's
apex in that claim that they followed it
southwark within the vertical planes of
the end lines under their extralateral
rights, that they own the vein and there
fore have committed no trespass. The
injunction was granted May 81, 1900.
The contention of the plaintiffs, as
stated in the opinion, is that the vein in
dispute crosses both side lines of the Sill
yer King; that therefore the side lines
become end lines, and that the right of
the Silver King owners to mine the vein
is limited by the side lines projected
vertically downward. But the chief con-
tention of the plaintiffs is that the vein
in the Plymouth which the defendants
were working is different from the one
which has it's apex in the Silver King.
Referring to the statement of the
district judge during the hearing of the
testimony, that an injunction would be
granted upon the evidence then before
him. but that he would allow the defend
ants to put in further evidence for the
purpose of appeal, the court says:
Judges should endeavor to avoid
reaching or announcing conclusions in
contested cases before hearing both par
ties. This is obvious. The course pur-
sued by the judge below was extraol-
binary, for without hearing what further
evidence the defendants might desire and
be able to present he announced his ln-
could not judicially know whether an in
junction order ought to be granted un-
til the evidence of the defendant as we'll
as that of the plaintiffs had been heard
by him. This is also manifest.
THE court. however, heard all evil
dence offered by the defendants, and, as
must be presumed. considered it. The
fact that the judge prematurely or in ad-
vance announced his intention to eXer-
else legal discretion in any particular
way upon the evidence, to him, SEEM
ingly sufficient then before the court,
does not constitute a reversible error
when he or the court hears the whole
case and then decides. In absence of a
showing to the contrary, the presump-
tion must be indulged that the evidence
was not rejected but was considered and
had due weight.
The court goes on to say that the fact
that the defendants own the Plymouth
is prima facie evidence they own all
the ore within that ground. and that the
burden of proof is upon the de-
PENDANTS to prove their extralateral
rights, as they are prima facie trespass-
ers. It holds that the evidence was
enough to justify an injunction pendente
lite, though not deciding that it would
be Sumclent 10 support perpetual IN
junction granted after q trial of the case
upon it's merits. 1t closes:
1--WE should not declare the lower court
to have abused it's discretion in granting
a temporary injunction, even though, on
paper. the case made by the plaintiffs
may not impress us as being strong"
In the appeal state ex rel, King, ct al
vs.. Second judicial District Court for a
peremptory writ Of mandamus, directing
Judge Clancy to dissolve the same in.
junction on the ground that Maloney
ct al. had abused it by destroying the
works Of King, ct al. on the disputed
vein, the supreme court dismisses the
application and Quashes the alternative
writ already issued. Judge Clancy had
refused to dissolve the writ because th'
matter had already been adjudicated OF
another application. The opinion is b!
Associate Justice MilLsrn. with whom
Associate Justice Pigott fully concurs
while Chief Justice Brantly also con
ours. but disagrees with the grounds.
The supreme court reversed an ordel
of the district court of Cascade count
denying a new trial in the damage sui
of Emil Freeman VS.. Sand Coulee Goa
company for injuries sustained by fall
ing roof in the mine. It finds the jur.