The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1903-11-02

the testimony OF members OF the survey
ing party the court granted the Butte
& Boston company the right to remove
the loose dirt blocking the entrance to
the secret crosseut, and also granting
21 days in which to complete the ex-
animation. II the Montana Ore Pur-
chasing company will not hoist the dirt
through the Rarus shaft the surveying
party will have it taken through the
Mountain View.
Judge Knowles overruled the motion OF
the Johnstown Mining company of New
York this morning to be excluded from
the inspection order granted to the Butte
x Boston company, allowing the latter to
survey the underground workings of the
Michael Dewitt claim through the Penn
sylvania, Rarus and Johnstown workings.
T.. w. Blair representing the Johns
town company. interposed the contention
that as the Johnstown company was a
corporation organized under the laws of
New York and was a stranger to the in
junction proceedings between the M. o. =.
company and the Butte & Boston.
The court would not consider the mat
ter in that light and told the attorneys
that it was a we'll known fact that the
Johnstown was a part Of the NJ. 0. p.
company, and that its organization did
not in any way relieve II from the juris-
dction of the court, nor from response
bility of the injunction issued.
In opening the hearing this morning
Mr. Forbis. for the Butte & Boston, read
the afidavits of Messrs. Winchcll, Moul-
,,J a.,
party who have been trying to enter the
workings for the purpose of inspection.
The af,idavits stated that the party had
attempted to carry out the courts order,
but had been unable to do so owing
the M. o. p. company's agents in the
disputed territory. They had learned
enough while underground, however. to
convince them that the NJ. o. p. com
pany was mining ore from the Dewitt and
was filling up the secret crosscut to pre-
vent entrance into the ground and ascer-
tanning what was doing in the Dewitt.
Judge Mediation arose when the notice
of service OF summons was read and
asked that he be allowed to deny that he
had acknowledged service on behalf Of
the Johnstown company OF New York.
II was then that MIR. Blair, assisted by
| Robert Wedekind, announced that he
| would, on the part of the Johnstown conf
pany. resist the making OF the Johnstown
party to the injunction and order of
survey proceedings on the ground that
| the court had no jurisdiction.
| at seems TO me, your honor announced
| Mr.. Forbs OF the counsel for the plail-
| tiff, that there is absolutely no grounds
| for the contention of the Johnstown COM
| pany for the reason that this company was
organized in August, 1903, solely for the
| purpose to hide the depredatons of the M.
| o. p company and to defeat the injunc-
| ton secured against the latter company
| prohibiting the mining of ore in the
| Michael Dewitt. The claim that is em-
| braced in the Johnstown company was a
| part of the NJ o. p. company ground and
/ is therefore still subject to that injunction,
be it the Johnstown or any other COM
pany."
After hearing arguments on both sides,
the court said:
"Well, am of the opinion that the
| Johnstown is in privity with the Montana
| Ore Purchasing company. IT purchased
| the property there from the Montana Ore
Purchasing company and it purchased it
| pending the suit--purchased it after this
injunction was issued against removing the
property. Now, there is a contention
that this is an entirely distinct property
the Michael Dewitt is from the Johnstown,
| or this piece of ground purchased from the
| Johnstown The trut! is, in the litigation
about that, it was claimed that the vein
| having its apex in this very ground ex-
tended into the Michael Dewitt and formed
part of this Rarus or Johnstown claim ;
| that is what the contention was i'll the
suit-and that it is not question ex-
actIy Of furnishing for contempt the Johns
town Mining company at this time, but it
is for the purpose of examination it is in
the nature of bill of discovery and it
takes the place of bill Of discovery, and
under the decision Of the supreme court of
the United States, you have a right to pro-
ceed in this summary way. 1t is said that
| you are entering and taking possession of
this property, but that might be said OF the
Rarus--that you are entering the property
Of the Rarus, and it is party to the lit-
CATION. Here is an order to enter the
Rarus at a point that is not in litigation
at all, that you might proceed to the
Michael Dewitt claim that is not in litiga-
ton; see where the openings are, to see II
ore has been extracted from the Michael
| I'cSlll, anu ldkCil DNl III llidl way IIoll Tic
Rarus And there is a claim of Interrupt
ton of possession, That very matter was
considered by the supreme court OF the
United States in this Drum Iummon- St.
Louis case that went up from Helena they
said there that the interruption would be
but short time of the possession and that
| it was proper.
"Of course, the court is not going to or
der that there be any permanent digesting
of the parties of possession and it is no,
going to order that they go to any particu-
lar expense, if there is any expense, the
parties making the examination must incur
the expense. But this is not only adopting
the statutes of the State of Montana in this
particular, but it is adopting former rule
in equity in regard to discovering evidence
and that is what the supreme court of the
United States decides in the case, that the
federal court has got perfect right to Or
der an inspection made in that way, to see
whether or not their orders have been vio-
lated by the other parties to find OUT