The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1920-06-10
RAISE FROM HECLA
BY FEDERAL DENIED
The Court Holds No
Showing of Ne
cessity Made
MARSH MAY INTERVENE
Judge DIETRICH Makes Two
Interesting Rulings in the
Pending Apex Litigation


Federal Mining & Smelling COM
pany for an order permitting it to
enter the underground workings of
the Hecla mine and raise to the sur
face as a means of proving the con-
tention of the Federal that the apex
of the Hecla east vein" is within the
lines of the Russell claim, owned by
the Federal and under lease to the
Marsh Mines Consolidated. This APP
plication was argued before Judge
DIETRICH at Boise last April and was
denied. the court at that time intim-
ating in the course of its ruling that
if all the parties interested were rep
resented in the case the application
might receive favorable action. Fol-
lowing that decision the Marsh Mines
Consolidated, the other party in inter
est, filed a petition in Intervention,
which if allowed would complete the
representation of all parties concern
ed in the litigation. The Federal re-
newed its application to be permitted
to raise from the Hecla workings
and both this application and that of
the Marsh for the right to intervene
came on for hearing on May 81 at the
Occur d'Alene term of the federal
court.
Marsh Wins, Federal Loses.
The Hecla company contested the
right of the Marsh company to enter
the case as an intervenor on the
ground that the federal court was
without jurisdiction, the Marsh com
pany being a Washington corporation
as was also the defendant Hecla COM
pany. The argument of the Marsh
case was followed by argument of
the Federal application to raise, and
both were taken under advisement by
the court A few days later Judge
DIETRICH rendered his decision on both
petitions. The Marsh petition was
granted, while the application of the
Federal was denied In passing upon
the Marsh case, Judge DIETRICH said:
Convenience, Not Necessity.
1.-THE reasons are cogent for requir-
ing the presence of the Marsh COM
pany but they present considerations !
of convenience rather than necessity |
and may all be referred to the rule
that in so far as may be practicable |
courts of equity will require all par
ties to a controversy to be brought |
before it in a single suit to the end |
that complete justice may be done |
therein, thus reducing to minimum |
the expense and harassment of liti- |
CATION"
Explaining the grounds upon which
the application of the Federal COM
pany was denied, Judge DIETRICH said
in part:
ITO make the right of inspection
effective there must be a temporary
invasion of the defendants right OF
and often a temporary use
of its property.
"The plaintiff urges and the defend
ant does not deny, that the suggested
exploration could be carried on more
and with less expense
by raising from the tunnel but ad-
mittedly the same result could be
by going down upon the
vein from it's apex in the Russell. IN
less. therefore, the expense of sinking
is prohibitive or is out of the range
OF reason, or the delay will result in
serious prejudice to the plaintiff
either in it's substantive rights or the
remedies now available to it. it can
not properly be held that the requis-
ite necessity exists.
Necessity Not Shown.
1T must be admitted that the right
to use the tunnel would be highly
beneficial to the plaintiff, and that in
view of the fact that the use would be
without loss or serious inconvenience
to the defendant denial of the privi-
lege seems unnecessarily harsh, but
as we have seen the power invoked
responds only to the call of necessity
ana, after all, the considerations urg-
ed are of convenience rather than ne
cessity
IF it were shown that Withholding /
the privilege would jeopardize any
rights of the plaintiff
view might be taken. In the
absence of such showing, I am con-
strained to deny the application.
whether, If. in view of the neces-
sary delay and expense. the plaintiff
should abandon its purpose of show
ing continuity by complete exposure =