Pioneer Mining Co. v. Bannack Gold Mining Co.

Citation60 Mont. 254
Decision Date01 June 1921
Docket NumberNo. 4384.,4384.
PartiesPIONEER MINING CO. v. BANNACK GOLD MINING CO.
CourtUnited States State Supreme Court of Montana

60 Mont. 254

PIONEER MINING CO.
v.
BANNACK GOLD MINING CO.

No. 4384.

Supreme Court of Montana.

June 1, 1921.


Appeal from District Court, Beaverhead County; Joseph C. Smith, Judge.

Action by the Pioneer Mining Company against the Bannack Gold Mining Company. From a judgment for defendant and from order denying a motion for a new trial, plaintiff appeals. Affirmed.

[60 Mont. 256]


H.C. Hopkins, of Butte, for appellant.

[60 Mont. 258]

Callaway, of Great Falls, E.J. Callaway, of Dillon, and E.B. Howell, of Butte, for respondent.

[60 Mont. 260]


POORMAN, C.C.

This is an action in ejectment. Verdict and judgment for defendant. Plaintiff appeals from the judgment and from an order overruling its motion for a new trial. The acts of defendant complained of appear in the statement.

At the times mentioned in the complaint plaintiff was the owner of certain mill sites and placer claims, or parts thereof, described in the complaint, including the Junction millsite, the French millsite, and the South Side placer. The defendant owned certain lands northwest of and adjoining the lands of plaintiff. At one time the Western Mine Enterprise Company owned all of the lands involved herein, and in 1897 it conveyed by deed to A.F. Graeter and others all or a part of the Junction millsite, the French millsite, and the South Side placer, with other lands. This deed contains the following reservations:

“Excepting the lumber and material in the water flume with the so-called Golden Leaf mill, and in the ore bins and mill tram thereon, said lumber and material being the property of the Bannack Mining & Milling Company, and excepting and reserving to the said party of the first part the right of a roadway for wagons across the said premises to connect with the Golden Leaf mill; the right to discharge mill tailings upon the said premises from the operation of the said mill, and excepting and reserving any and all veins or lodes of quartz which may be found or which may be within or upon the said premises and the right to work and explore the same.”

The grantees named in this deed in 1898 conveyed their interest to plaintiff. In 1906 the Western Mine Enterprise Company sold and conveyed all of its property which it had not theretofore sold to Graeter and his associates to Carlton H. Hand, who in turn sold it to the defendant

[60 Mont. 261]

company. The predecessor in interest of the Western Enterprise Company was the Golden Leaf Mining Company, the then owner of the Golden Leaf mill, which was operated by water power conveyed to it through the North Side ditch, and the flume, extending across a part of the lands conveyed to the plaintiff company. At the time of the execution of the deed to Graeter and others, the Western Mine Enterprise Company owned the Golden Leaf mill and the land on which the same was situated, but did not own the mill machinery. That was owned by a subsidiary company known as the Bannack Mining & Milling Company, which was the operating company of the mill. The rights of this latter company subsequently passed to the defendant herein.

The defendant maintains that at the time of the sale to...

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