Tonopah daily bonanza. [volume] (Tonopah, Nev.) 1906-1929, 1914-04-07
DISCOVERY Of INVASION MARKED
DOWNDY THE BUTLER employees
ABOUT THE FIRST OF JANUARY

In the undisturbed solitude of his
sanctum and Linley, the able counsel
for the other side This comparison
was instituted to answer a telegram
Attorney Colby had read from his
eminent associate and incorporated
as part of his argument. This was 70
the effect that he, Linley. never knew
an Injunction to be refused In all
my mining experience never knew an
application for an injunction backed
with the showing the Butler can
make having been refused"
Mr.. Alling quoted from Linley's
latest work where on page 2192 he
wrote that court should not grant
an ex parte restraining order except
In extraordinary cases.
'Linley In his telegram states that
he never knew of such an application
being refused. but 1t makes quite
difference whether we are consulting
Linley the attorney for the other side
or Linley the author" dryly com
mented Alling
Three important Elements.
Counsel continued that an applica-
tion for an injunction should embody
three elements. namely: the right,
the invasion and the irreparable char
acter of the injury and the posaibil-
ity of multiplicity of law suits. He
styled the injunction the strong arm
OF equity" that should not be in
yoked unless under extreme eondi-
tions He charged that the complaint
was the yeriest skelton form of
complaint in trespass and that it was
chiefly notable for the avoidance OF
facts. Entering into a discussion of
the requirements of the law he in
sisted that the owner of mining
claims held two distinct estates;
one arising under his patent to the
surface and such veins or lodes as
apex within his lines. the other from
his common law right to such veins.
within his ground that do not apex
within his lines If no superior right
by reason Of apex elsewhere Is
shown. The first estate is absolute,
unqualified and unconditional. the
second qualified and conditional. He
declared the allegations of the com
plant to be insufficient in that il
did not show absolute ownership of
the disputed ores under patent right
nor yet common law right plus a
negation Of an apex right outside
the claim. He further claimed that
there had been laches or negli
gence in filing suit by plaintiff de-
spite the claim of great diligence or
any protest against occupation after
having known and permitted the ex-
traction of ore to 60 on since Jan
uary 20. 1914, when, II the affidavits
are to be accepted. President Heller
first was made acquainted with the
facts He caustically inquired what
the active mine superintendent. Mr..
pike. was doing all this time when
the terrible West End company was
engaged in the awful depredations
that are alleged to have resulted In
the extraction of $4,000 tons of ore
worth 100000 Mr. Pike. in his afi-
davit said he learned of the extrac-
tion on the first day of January. and
yet his immediate superior. Mr. Brad
shaw, and his president, Mr., Heller,
heard nothing Of the news untll three
weeks later Mr. Pike did not ex-
plain why he failed to notify his su-
perior and then there was Mr. Robin.
who admits having been surveyor In
the Jim Butler for two years, sud
denly waking up and finding that the
West End had stolen $4,000 tons Of
ore
In conclusion, he denounced the
statements of counsel by asserting
that Bradshaw knew OF it Heller
knew Of It. Warren Richardson said
they did. and he was willing to be
lieye that the extraction Of 25.000
tons OF ore could not have been done
without the knowledge OF the own
ers Of the surface ground Mr. Aliing
declared the plaintiffs had not proven
the snffciency OF their ALLEGATIONS In
; his final summary counsel Tor the de
) fendant Insisted that laches and &c.
+ quiesence. coneealment OF material
! facts we're shown and thar coven-
D ant Is not to be- broken by court
e order and that na right in. the plain.
i tin had been shown which defend
& ants acts could be said to invade OF
I violate