Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-02-25


ants The court says the petition for
a receiver was filed Just seven
days after Kleinschmidt was put
in possession, and that the evidence
is well nigh conclusive that no mining
was going on at any time after Feb
ruary l. and that neither Kleinschmidt
nor anyone representing him was at the
mine after that time. The court goes
on to say:
The only conclusion possible from
these facts is that the plaintiffs and ad-
ministrator joined hands to create color
able ground for the appointment of a re-
ceiver. through whom they could have
the property mined. Notwithstanding the
injuSction procured by Finlen to preserve
it intact until he could establish his
rights. and the money expended in de-
velopment work which might. or might
not, add to the value of it, or might or
might not protect it from trespasses.
And this in face of the fact that the
plaintiffs Notwithstanding the injunction
were at liberty to bring as many suits
Is they chose to restrain these alleged
trespasses. Plaintiffs knew, though these
suits were pending against them, they
furnished no ground for asking a court
of equity to take the property out OF their
den of caring for it. They we'll knew
that. in order to bring this about, it was
necessary to be in a position in which
they could complain Of wrong on the
part of some one who claimed to he
co-tenant, and hence this suit on mere
~ colorado custer on the part Of the add
mlnlstratof. who seems to have been
not adverse to aid in their design. So
far as this feature of the case is con-
cerned. there were no facts before the
court to warrant the order. The court
was misled to make it by specious but
unfounded and unsupported complaints
of plaintiffs. by which they sought to
bring themselves within principles
which move a court of equity in such
cases to grant the extraordinary relief
demanded.
The administrator having gone into
possession. if indeed he was in possess
sion by the consent of plaintiffs. with
the understanding that he was at liberty
TO engage in mining, nothing short of
showing Of clear custer and refusal to
account. coupled with want of financial
ability to answer in a suit for this pur-
pose, would probably justify the court
in taking property from his hands
through the agency of receiver. He
estate in any way.
"Allegations upon the subject of
a probable fall che price of copper
pending litigation do not merit serious
consideration. as they are hardly sus-
ceptible of proof. An it cannot be urged
seriously that court of equity should be
moved to the exercise OF its extraordinary
powers by conclusions founded upon
speculations upon the probable condition
of supply and demand as to the partic-
ular commodity in the markets.
In regard to the allegations Of plain
tiffs as to the necessary cost of preserv-
ing property while idle. the court says
proof is not satisfactory 1t APP
pears that the cost of looking after
the claim and hosting plant is
about $500 a month, but it appears
that this hoist belongs to the Montana
Ore Purchasing company. "a company
with which the plaintiffs are associat-
ed and Heinze. January 49,
The court says if from the nature and
conditions of openings into the mine they
do not require attention and outlay. the
expense of watchmen would under no
circumstances be proper charge on the
property. Finlen has not attempted to
interfere with possession. except to en-
Il
tinues:
There is nothing in the evidence to
furnish any reason why either heinze
or the administrator, who seem to have
Joined forces against Finlen, should not
retain possession and care for the prop
erty, with right to recover of Finlen the
amount expended for this purpose, if
they succeed in establishing their rights
I against him. Surely, the plaintiffs have
ample protection against loss under the
! injunction bond given by Finlen in the
| ejectment suit. If this were not sufi-
cient, the district court would readily
exact sufficient.
I THAT a court of equity has power in
| cases like the present to appoint re-
| ceiVer is We'll settled. But in any case
where such appointment is sought, there
must be shown legal or equitable right,
reasonably clear and free from doubt
attended with danger Of loss. Duties of
the court, however, in the exercise OF
! this power. are exceedingly delicate, and
should be exercised with great caution
lest in the effort to protect the subject
OF litigation the property would be ille-
gally taken from one rightfully in Dos
session, and his rights and interests be
sacrificed without any redress whatever
Taking charge of the property in ex-
ercise of this power is somewhat analo-
gous to. levying execution and subject.
ing property to expenses and charges
pending litigation and to this extent con.
Stunning it entirely hence the powe,
| should never be used unless it be reas.
onably clear no injury will result to the
parties whose rights are, for the time
being, invaded"
The grounds for the appointment of re-
ceivers as between tenants in common
are then stated, ana the court says:
The case at bar does not come with
in any of these rules, nor has any cas-,
been cited by counsel wherein a differen
rule i.as been applied"