The Butte inter mountain., 1902-02-05
INJUNCTION GRANTED BY JUDGE
CLANCY CHANGED.
EVIDENCE WAS insufficient
Full Text Of the Supreme Court De-
cision in the Case Of the Johnstown
Mining Company Against the
Boston G Montana.
(Special to Inter Mountain.)

Helena, Feb. 5.--The supreme court
has modified the injunction granted by
Judge Clancy to F. Augustus Heinze ana
the Johnstown Mining company, re-
straining the Boston e. Montana COM
pany from operating the Leonard, Gam
BETA and Piccolo mines.
The decision exempts the Leonard vein
from the operation of the injunction, put
continues II In force as to the GamDetta.
The court intimated that the evidence
was insufficient to sustain Heinze's claim
as to the Gambetta.
Text Of the Order.
The order Is to become absolute unless
Mr. Heinze applies for new hearing
within 30 days. It's text Is as follows:
THE plaintiffs, asserting title in
themselves to the Minnie Healy lode
claim and to a certain vein alleged 10
have it's apex therein and to dip to the
north beneath the Piecolo and Gambetta
lode claims owned by the defendant.
brought an action against the defendant
to quiet their title and to enjoin the
defendant from trespassing thereon.
Upon the complaint and an affidavit In
support thereof, the Judge below issued a
restraining order against the defendant
and also an order to show cause why
an injunction pending the action should
not be granted. After hearing the
order to show cause was made absolute
on April 25, 1902, and an injunction pend
ente lite granted as prayed for In the
complaint. From this order the defend
ant has appealed.
I'VE have devoted much time to the
study of the transcript and briefs. con-
sisting of $40 printed pages and eight
maps of the property in dispute. No use
full purpose would be served by state
ment or discussion of the evidence. The
sole question raised is whether the evil
dence was sufficient to justify the order
of injunction. AS to the Leonard vein.
the apex of which Is i'm ground belonging
to the defendant north of the Gambetta
lode claims, and which dips to the south,
there was no substantial evidence what
ever tending to support the order. With
the order, insofar as 1t affects the Gam
BETA vein, we do not feel disposed to in
terfere upon this appeal, although the
evidence tending to prove the identity
and continuity of that vein with the vein
having it's apex In the Minnie Healy
would be insufficient upon a trial Of the
issues on the merits.
Injunction Is Modified.
"The injunction order should be modi-
fled so as to exclude from its operation the
Leonard vein throughout it's length and
Depth leaving in force the order so far as
1t enjons the defendant from entering
upon the Gambetta vein and extracting
ore therefrom. To accomplish this pur-
pose we think the order should, in the
present state of development and under
the evidence adduced, go no further than
to enjoin the defendant from entering
upon or mining, or extracting ore from
any of the ore bodies lying towards the
south of plane descending vertically
into the earth on a line parallel with the
south line of the Piccolo lode claim and
passing through the point at which the
north side line of the Gambetta lode
claim intersects the third, or 300-foot,
level south of the Leonard shaft.
THE cause is, therefore, remanded with
direction to the district court forthwith
to vacate so much of the order as en-
joins the defendant from entering upon
or working, or extracting ore from any
vein or veins lying towards the north
of the plane indicated. In,the event the
plaintiffs shall. within 80 days after
the remittltur be lodged with the clerk
apply for new hearing of the order to
show cause, the court below is directed to
set aside and vacate the order of April 3D.
1901, in its entirety and to grant a new
hearing; II such application be not made
within the prescribed period. then the
order OF this court modifying the order
of April l, 1901, shall become absolute and
the court below will, upon motion, cause
to be entered formal order in conform
fty with the views herein expressed
The defendant will recover the costs OF
appeal"