The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1903-07-17
Motion to DiSmiSsIFamouS
Action IS Denied by
Judge Clancy.
PLAINTIFFS REST
Robert A. Macarthur Is
Called to Stand to
Tell His Story.

The defendants side of the case was
opened this afternoon at the trial of the
Nipper mining case, the plaintiffs resting
their side at noon.
At that time Governor Thomas, OF coun-
sci for the defendants, moved the court to
dismiss the complaint of the plaintiffs and
give the defendants judgment.
The motion did not prevail, the court
overruling it.
Grounds for Motion.
The grounds for the motion were as fol
15ws:
That it appears from the testimony of
no adverse claim or title whatever be-
tween the plaintiff and defendant which
effects the title to the Nipper lode claim or
any right appertaining to it, and there is
therefore no such condition proven as
would justify the granting OF the prayer Of
the plaintif on the evidence.
Action One at Law.
That il appears from the testimony Of
the plaintiffs witnesses that the suit was
brought in reality to recover certain
part of a vein having apex in the Nipper
claim, which enters into the Oden and
Anaconda claims on its dip, which claims
are the property of the defendants, and
therefore the action is one at law TO re-
cover part OF vein to the south Of the
Nipper, and is not the assertion of an
adverse claim forming the basis of a
proceeding to quiet title.
That it appears from the testimony of
the plaintiffs witnesses, testifying to the
geological and physical facts, that the vein
or ledge within the boundaries of the
Nipnar ba 81 al J;aua,al1,, ,nI
so intersects the side lines, in conse-
quence OF which the cxtralateral rights
Of the plaintiffs arc between planes drawn
from the end lines of the claim.
Ground Expressly Excluded.
That the defendant, the Anaconda Cop
per company, on its own account and in
its own behalf moves for a judgment
against the plaintiffs on the case made
out by the latter because it appears in and
by the testimony of the plaintiffs wit
nesscs and from the Nipper patent that the
conflict ground between the Npper and
Anaconda patents is not included, but ex-
pressly excluded from the Nipper patent,
and that the Nipper apex, as testified to
by the plaintiffs witnesses. extends across
the conflict ground and belonging to the
Anaconda patent.
Wherefore the Anaconda company holds,
possesses and enjoys the said area in con-
flict and all rights appurtenant to it, with
out regard TO any rights proven by the
plaintiffs in this case.
Besides overruing the motion for q
non-suit, Judge Clancy ruled uniformly
against the defendants on other questions
in the morning.
After the ruling above named Robert
A. Macarthur, the first witness for the dc
PENDANTS, went on the stand and opened
the testimony.
Reads His Decision.
When the morning session opened
Judge Clancy Immediately read his de
cision allowing the plaintiffs TO put in
evidence records of the title to the Nipper
mining claim, against the objection of the
defendants. The matter had been taken
under advisemcnt the night before.
The defendants had opposed the admis-
sion of this evidence on several grounds,
and had cited the fact that the location
was defective in the verihcation and
quoted Judge Clancy's ruling excluding the
location Of the defendants in the Pennsyl-
vania case for similar reasons
When the court opened Judge Clancy
said:
'Wcll, gentlemen, I've looked into this
matter over night"
Then he went into his decision, saying
he had found the Npper lode claim had
been located according to the laws of the
United States, and had been patented by
the predecessors of the plaintiffs.
Owned by Plaintiffs.
lie said he had found the plaintiffs
owned 3I-3o of the claim, under and by
virtue Of the location and patent. He said
that the evidence was offered by the plant
IFS to show the date of the location, and
that it was admitted by the defendants
that the location was made In accordance
with the laws of the United States, and
that ownership and possession of the claim
were exercised by the plaintiffs or their
predecessors from the date OF the location
to the issuance OF the patent.
He said the defendants admitted the title
and that it was under and by virtue of a
valid location.
"The question Isl When was the location
nader" said the judge.
He then repeated that the defendants ad-
mitted the location was made under the
laws of the United States and that the
patent was issued upon the location, and
that the records of the land office were
correct and show title to the date of the
location, the same as if all the admissions
were made in open court.
Point ls Raised.
"The difference between the point raised
in the Pennsylvania case and the point
raised here is this" said he.
Then he said that in the Pennsylvania
case the opposing party denied the validity
of the location, and that in this case the
defendant admitted It. In the Pcnnsyl-
lContiuued "a Ilc. Tr,fIxsl