Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-01-19
THE BOND WAS
D|SAPPR0VEO
CLERK OF THE SUPREME COURT
sUsTAINs OBJECTIONS TO
THE SURETIES.
IN the APPEAL OF THE
PENNSYLVANIA MINE SUIT.
M. o. P. Stock Could Not Be Considered
Interesting Point in Mining
Law Decided.

Special to Inter Mountain.
Helena, Jan. 19.-The bond for $3.50, 900
offered by the Montana Ore Purchasing
company as security for ore taken out
OF the Pennsylvania mine pending the
appeal of the supreme court on the in
junction suit of the Boston & Montana
Mining company, was this morning dis
approved by Henry q. Rickerts. clerk
OF the supreme court. to whom the
bond was referred for justification of
sureties. He sustains the objections to
+. Augustus Heinze, John MacGinnis
and Stanley Clifford, and announces
that he will give reasons for his action
in writing Monday.
The objection made to these three
sureties was that they We're not finar
cially responsible for the amounts for
which they offered to be surety in ex.
cess of their stock in the Montana Ore
Purchasing company, and counsel for
the Boston & Montana contendad that
the stock in this company could not
be considered, as property which it rep
resented was directly involved in the
suit. Further objection was made to
Clifford on the ground that he is not
resident of Montana. as the law re-
quires, having for five years past re-
sided in New York.
In his evidence Clifford admit leu that
he had voted in New York city. Heinze
went on the bond for $3.50, 600, MacGinnis
for $4,000 ar1 G. ford for 5000. 900. The
bond IS THUG cut dcwn to $500,
Though sur>!.es e-.ould justify in double
She amount required, or $1,100G00
IN sastaini,.s the motion to strike out
paragraph in the complaint of Frank
Mares against Richard Dillon, which is
o mineral contest, District Judge Glenn
eEts yesterday decided an interesting
point in mining law.
Mares opposed the application Of Dill
ION for a patent on Black Eagle claim in
Lewis and Clarke county on the ground
that it confiicted with his Gold Hill and
Rocky Hill Gains which he relocated in
November in order to correct the lines.
He recites the facts Of relocation in the
second paragraph of the complaint, but in
the third paragraph asks that this be re-
garded as an amended location. The de-
cision says: 1.-The question is not what
his purpose and intent was as declared by
him outside Of his acts in making the To-
cation. The purpose and legal effects OF
the acts performed are to be gathered
pleading.
There is nothing in the acts performed
by the plaintiff as detailed in paragraph
three to distinguish it from the original
or new location. The language in the lat
ter part of paragraph three, wherein the
Plaintiff states the purpose he had in
making the last location, merely states IA
conclusion as to the legal effect of acts
previously detai'ed in the same para
graph. The owner of a mining claim GER
tainly could not make relocations as Of
ten as he saw fit and by merely calling
them amended locations make them valid
as SUCH ...-.
1T is well settled as matter of law
governing the acquisition of mining
ground that only unappropriated and un-
occupied mineral land Of the public do
main is open to location, and there can
be no relocation of mineral land until it
has reverted to that condition. Location
upon land already -validly located creates
no right and is not made valid by subse-
quent forfeiture of original loca ton
Abandonment must actually have taken
Place or forfeiture be complete before
ground can be relocated. The right to
possession comes only from valid loca-
ton.
Here we have valid and subsistng To-
cation under allegations of paragraph .
and no location was made in November
1900 as alleged in parrag graph g."
The decision is in favor of the plaintiff