The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-08-02
the COPPER TRUST DECISION.

his interests duly protected under the
law, will view with much interest the
decision handed down by the state SUI
creme court yesterday, reversing the
order of inspection and survey issued
by Judge William Clancy to Burdette
,O'Connor ct AL, owners of fractional
claims on Anaconda hill.
Briefly as stated in the decision, Mr..
OConnor contended that under the Cop
per Trust location he was entitled not only
to the surface within his boundaries not
covered by the other companies patents,
but also to all portions Of the vein hav-
ing their apex therein, as we'll as to
those parts of it which, though they
have no apex within his surface. are so
situated with reference to the end lines
OF the other companies claims that the
other companies cannot assert title by
virtue of extralateral rights.
The Anaconda and the Washoe cons
panies contended that, by virtue of their
common law rights, they are entitled to
the surface and everything beneath, be-
cause neither O'Connor nor any one else
owns any part of the apex of the vein,
which is SO situated that extralateral
rights through such portion may be as
serted to anything beneath the surface
owned by them. Therefore, the COM
panies contended that O'Connor has
shown no right to any part of the ores in
controversy such as to authorize the
court to grant an order permitting him
to make the inspection and survey
sought.
AS explained in the Inter Mountain
yesterday, the fractions. two in num-
Der, were located in 1899, embracing, as
will be seen by reference to the Inter
Mountains map, two specks of ground,
one containing $1,000 of an acre and
the other $1,000. The first is nine feet
wide at it's greatest width, the latter is
two and one-half feet wide. Each is 80
feet long and narrows to a point.
Upon the application of the owners OF
these fractions, representing it is sup
posed. the NJ. o. P. people, Judge Clancy
issued an order of inspection and sur
yey giving them the right during a
period of 20 days to send six men into
the workings of the Anaconda and seven
contiguous claims of the Anaconda COM
pany for the purpose of making an in
spection thereof, the Anaconda company
being obliged to lower and hoist such
men at it's own expense at reasonable
times.
From that order the owners of the
Amalgamated properties appealed. They
objected to having their mines thrown
open to the examination of rival and
hostile interests under such extraor-
binary circumstances. The supreme
court, after due elaboration, decided
the lower court to be in error. and hanl-
ed down decision which is not likely
to be misconstrued. At the same time
the court states that it's action in the
premises should not be understood IS
determining any of the legal rights O.
The basis of the action.
Aside from it's local application the
decision will be of great interest in tn,
mining world. 1t comedies the wisdom
OF the law which provides, under proper
conditions and upon a proper showing.
for underground surveys but evidently
regards the present case as lacking those
essentials, the views of the court on tina,
subject being contained in the following
paragraph:
The purpose of the statute is to serve
the interest of justice, however, and not
to be made an instrument of Injustice or
oppression. Under it the court may not
without reasonable showing and In
disregard of the rights of the party in
possession of the property, or in contro
OF the means of access to it, permit
MS adversary to enter upon it merely
because he desires and asks for an orde,
permitting him to do SO. The law mus
be administered in the spirit of liberality
to accomplish the desired end. Purely
technical and captious objections SHOULD
not be tolerated. The language of tn.
statute is for good cause showing and
under the rule laid down in ST. Loul
Mining and Milling company VS.. Mon
tana company. whenever the order i
made without good cause, it must follow
that it is an infringement on the right
OF the party In possession and may b
get aside as unauthorized; otherwise tn
power of the court could be exercise,
without restraint and to the great injur,
and oppression of the party in DO,
session.
Referring to the issue raised by tn
court below. the decision says:
Do the circumstances of this case SHOW
such an emergency as to warrant inter
ference by this court? Unless the orle
be set aside it will be executed at one,