Poague

This is a diversity of citizenship case tried to a jury. The court denied defendant’s motion for a directed verdict, and judgment for the plaintiff -was entered on a jury’s verdict in her favor. This appeal followed. •

In 1910 appellee acquired title to a tract of land in the city of Butte, Montana, together with a dwelling house situated thereon. The deed of conveyance to her contained an exception and reservation of all the ores and minerals beneath the surface which permitted the mining and extraction of these ores and minerals.

Appellant, Butte Copper and Zinc Company (hereafter called Butte) became the 'owner of the rights to these subsurface ores and minerals and in the year 1917 leased them to the Anaconda Copper Mining Company (hereafter called Anaconda). The latter company thereafter and at all times material to the issue here presented, engaged in mining and extracting the said ores and minerals 1 under authority of this lease agreement.

In this action appellee sought recovery of damages from Butte for injuries to her land and the dwelling house and garage building thereon, alleging a breach by Butte of its duty to furnish subjacent and lateral support in conducting…