The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-12-27
JUDGE CLANCY REFUSES TO VA
CATE HIS ORDER.
INSPECTION ORDER CONFIRMED
Fact That Heinze Has Parted With All
Interest in Ground Involved
Makes No Difference
Arguments Made.

| Vacate the order previously made allows
ing F. A. Heinze the privilege OF sur
veying and inspecting the Anaconda and
! ST. Lawrence mines underground, al
! though it was admitted by Heinzes
counsel, Attorney McHatten, that Heinze
had parted with all his right, title and
| interest in the Paramount mining claim,
upon which interest the order of survey
and inspection had been made and upon
which the right to it was founded.
| The order refusing to vacate was made
in the proceeding brought by Heinze
against the Anaconda Mining company
over year ago to secure the order of
survey and inspection, and which was
| renewed successfully two or three weeks
ago, after lying dormant about year.
Case Is Appealed.
After the order granting the survey
and inspection was made by Judge
Clancy few weeks ago, the Anaconda
CO mpany excepted to it and appealed,
and couple of weeks ago applied to
Judge Clancy to vacate it on the ground
that Heinze had decided his interest in
the Paramount to the Nipper Mining
company.
The hearing on this application was
heard this morning, the execution of the
order for the survey and inspection hav-
it was granted.
When the proceeding this morning
opened, Mr.. McHatten admitted that Mr..
Heinze had parted with his one-half in
terest in the Paramount claim to the Nip
per company, but denied that he had
parted with any rights of action or
claims for damages.
Arguments Are Made.
He therefore moved the court to deny
the motion to vacate the order of inspec-
ton and survey. The application was
then argued by him and by Attorney c.
F. Kelley, who appeared for the Ana
conda company.
Mr.. McHatten stated that the statute
provided that an action or right to an
action does not abate by reason of the
death of the litigant or the transfer of
the right to the action. He cOntended
that the suit may continue in the name
of the original party, or be set up in the
name of the party who succeeds to the
interest.
He said that if Heinze had been dam
aged by the defendant by the removal
of ore belonging to him from the Fair
mount, he still had right to the sur
vey, and said that Heinze had never had
an opportunity to ascertain if such were
thu case or not.
Cause for Action.
Mr.. Kelley said that in order to have
right to an inspection and survey the
party applying for it must have an ac-
ton, cause of action or defense. If he
parted with his interest in the Fair
mount, he had none of those grounds for
the right.
Mr.. Kelley said that the proceeding
was purely statutory, giving a party a
,;n,f tn ftTd hn tr.nc ,faIl
upon. He said that Henze had brought |.
tue proceeding while owning an interest !
in the Paramount claim; then had trans |
ferred all his property in the claim, and |
after that had come in and asked to be |
allowed to survey and inspect the de- |
PENDANTS claims with no right to such !
a privilege
We contend that the transfer left Mr..
Heinze without standing in this court
to ask for this privilege" Mr.. Kelley !
said. This is a personal privilege in an
equity proceeding, and he must have
an interest in order to avail himself of
it."
Parted With Interest.
Mr.. Kelly contended that the order
to vacate the order for the survey and
inspection should be made upon Heinze's
admission that he had parted with his
interest in the ground involved in the
controversy. If there was any right to
the privilege in anybody it resided in
the Nipper company, who had bought
Heinze's interest in the Paramount, he
said.
When the case was submitted, the
court said:
well, all civil statutes are literally
Criminal statutes are strict
ly construed. This is SO in most of the
states all over the Union, except in
some of the states in the West and per-
haps in this state. In those states the
civil and criminal statutes are construed
the same way.
This statute doesn't need to be liber-
ally construed. It's pretty plain. Ac-
tons can be continued in the rame #
the original party. 1 don't think there's
to do but deny this applica-
ton The application to vacat. the or
der of survey and inspection is de-
nied.''
Excerpts to the Ruling.
Mr.. Kelley excepted to the ruling of
the court, and asked for a stay of execu-