27 Mont. 161 | Mont. | 1902
delivered tbe opinion of tbe court.
Action in ejectment and for damages, in wbicb plaintiff seeks to recover possession of tbe Snow Bird quartz lode mining claim, situate in Silver Bow county, and tbe value of ores removed therefrom by tbe defendants'. Equitable relief by way of injunction is also sought to.restrain removal of ores pending tbe action, and perpetually, in case plaintiff succeeds in obtaining judgment.
Upon filing tbe complaint the plaintiff applied for and obtained an order requiring tbe defendants to show cause why they should not be enjoined pending tbe action. They appeared and filed a joint answer, and, after denying that they were guilty of trespassing upon tbe property, set up an equitable counterclaim, by wbicb they seek to obtain a decree adjudging tbe defendant F. Augustus Heinze tbe owner of it under a contract by wbicb he purchased it from tbe plaintiff, with other property, for tbe price of $100,000, wbicb has been fully paid. After a bearing tbe temporary injunction was denied. Tbe plaintiff has appealed.
. Tbe subjoined diagram's will serve to illustrate tbe contentions of tbe parties.
Tbe Snow Bird is a fractional claim, and a portion of it shown on diagram 1 is indicated by tbe letters G-, H, K, L, M. Portions of tbe Johnstown, and Rarus claims to tbe north are indicated by tbe letters G, O, D, I, K. Tbe Pennsylvania, to the south, belongs to tbe Boston & Montana Consolidated Cop1per & Silver Mining Company. Tbe lines AA and BB represent, substantially, parallel fault fissures extending through tbe country in a northeasterly and southwesterly direction, and dipping into tbe earth at an angle of about 50 degrees toward tbe northwest. Under tbe theory advanced by tbe plaintiff tbe fault occasioned by geological disturbances in tbe crust of tbe earth was attended by such a movement of tbe portion between tbe fissures as to cut off and destroy tbe identity and continuity of the vein to tbe east and west; and tbe Windlass vein, having its apex near tbe surface toward tbe east end line of tbe Pennsylvania, is cut off by tbe fault so that its top or apex descends into tbe earth under tbe face of tbe east fault fissure until it passes through tbe north side line of that claim into* tbe Snow Bird, thus presenting what plaintiff claims is a subfault apex within tbe boundaries of tbe latter. A A, represents tbe face of the east fault near tbe 900-foot level of tbe Rarus workings; BB tbe face of tbe west fault at or near tbe 1,000-foot level. Tbe vein, as it descends under tbe east fault fissure, enters tbe Snow Bird ground across tbe line Hi between tbe 800-and 900-foot levels, and, traversing tbe claim-under tbe dip of tbe fault,
The defendants contended, and produced evidence tending to show, that the so-called “Windlass Vein” has no existence in fact; that there is a vein the top or apex of which is found in the Johnstown and Raras claims; that the vein dips to the south or southeast, and in its descent into the earth passes beyond the boundaries of these claims through the Snow Bird and into the Pennsylvania claim; that it has been so developed as.to demonstrate its continuity from its apex to the ore bodies in question; and that the apex of the vein being so situated with reference to the end lines of the Johnstown and Karas claims as to give extralateral rights thereon, the ore bodies belong to the defendant corporations by virtue of their ownership of the apex. While admitting that the fault runs through the country as plaintiff claims, they also produced evidence tending to show that it does not so interrupt the vein as to destroy its continuity and identity along its strike, but that it can be readily traced entirely through the fault by substantially continuous ore bodies of a character and composition identical with that on either side of it. There is no controversy but that defendants are entitled to follow the vein which has its apex on their claim; so that, if their contention as to its identity and continuity upon the dipi and strike
1. The contention is made in this court that, it being made to appear that the defendants were at the time of the hearing engaged in removing ores from beneath the surface of the plaintiff’s ground, the burden was upon them to show that they are not trespassers, and that the evidence produced by them was not sufficient to warrant a refusal of the injunction. As the order must be reversed upon other grounds, We shall not now undertake to decide where the preponderance of the evidence is, but leave the whole matter to the discretion of the district court upon the evidence which the parties may produce at another hearing. We agree with the contention of the plaintiff, however, that in such cases the burden rests upon the defendant to show that he is not a trespasser, but that he possesses a title which justifies an intrusion upon the territory of his neighbor; and, unless the evidence is reasonably clear and satisfactory that the defendant is in the right, the injunction should be granted. In such cases the doubt, if any, should always be resolved in favor of granting the writ; but granting or refusing it is so much a matter of discretion in the trial court that this court will not interfere unless there has been a manifest abuse of discretion.
2. The defendants filed in support of their contention the affidavits of George H. Robinson and others. Objection was made to them on the ground that copies of them had not been served upon counsel for plaintiff, as required by the rules of the district court. The objection was overruled, counsel excepting. It does not appear from the record what are the provisions of the rule upon which counsel rely. We are therefore unable to say whether the ruling was erroneous.
3. The affidavit of Robinson was devoted mainly to a history of a certain cause heretofore tried and determined in the district court of Silver Bow county, in which there was an issue between the defendants in this cause and the Boston & Montana Consolidated Copper & Silver Mining Company as to the ownership of the vein in controversy in this action, the cause men
Counsel for the defendants undertake to justify this ruling of the court upon the theory that the references made to cause 7,337 and the result therein served to enlighten the court as to the issue in this cause-, and furnished aid to a proper determination of the respective rights of the parties. The matter was put in the form of affidavits, counsel say, in order to avoid the necessity of “having to present, as was the case in said cause No. 7,337, ten volumes, comprising about 6,000 pages, of testimony.” As we understand counsel, the affidavits were introduced for the purpose of showing that the issue before the court was the same as that in cause 7,337, and that the evidence upon which defendants based their claim of title in that controversy was the same as that upon which they would have to rely in case they took the time and trouble to establish it in the present controversy. In other words, since the court had theretofore in another action, upon an issue of -title between the defendant corporations and a stranger, heard a large amount of evidence, and had reached the conclusion that the said defendants were entitled to the ore bodies in controversy, and it would be inconvenient to go into the merits of the present case and establish title against the plaintiff, the plaintiff should be bound by hearsay statements or the court’s recollection of the evidence adduced in the other action, and the judgment of the court thereon. It requires no argument to demonstrate the fallacy of this reasoning. The evidence’was wholly incompetent as hearsay, and the findings and judgment of the court of no- binding effect whatever, except upon the parties to that action and their privies. The plaintiff was not, upon the record before us, even
4. T’o show equitable title to tbe Snow Bird claim in F. Augustus Heinze, tbe defendants offered, and there were admitted in evidence, certain telegrams, and a receipt for tbe sum of $100,000, tbe purchase price agreed to be paid by said Heinze for tbe claim, with other property, as tbe result uf negotiations between him and J. B. Haggin, tbe president of tbe plaintiff during the year 1897. They are tbe following:
“New York, 10 September.
“Mr. Arthur P. Heinze:
“On deposit with tbe Anaconda Copper Mining .Company of one hundred thousand dollars, said company wi]l at once proceed to* obtain tbe requisite consent of its stockholders for selling, and will then sell and convey, to F. A. Heinze, or bis nominee, all its interest in tbe Sullivan claim, lot number two thirty-nine, and in and to tbe portion of tbe Snow Bird claim lying between tbe Pennsylvania, Karus, and Johnstown claimls, and east of tbe projection of tbe east end line of tbe St. Lawrence; and also1 assign any and all claims which it may bave for dam*169 ages for trespass on said mines to date of said deed. Said deposit to be applied to tbe payment of purchase money when deed is ready for delivery. Answer.
“J. B. Haggin, Prest.”
“New York, 14 September.
“F. Aug. Heinze:
“That is not my proposition. Money must be d&posited with the Anaconda Copper Mining Co. No delay will be necessary except the legal publication, as sufficient stockholders, are represented here.
“J. B. Haggin.”
“New York, September 16th, 1897.
“Beceived of Montana Ore Purchasing Company the sum of one hundred thousand dollars ($100,000)'for deposit in pursuance of telegram to Arthur P. Heinze, dated September- 10th, 1897, of J. B. Haggin, president, for the purposes stated in said telegram.
“[Signed] J. B.‘ Haggin, Prest.”
It was shown by other evidence that negotiations for the purchase and sale had been pending for some time; that they had been conducted for the plaintiff by said Haggin; and that the receipt was for a deposit with Haggin for the company, pending consent of the stockholders, which Haggin undertook to secure. It was shown that the signature of Haggin to the receipt is genuine; but no other foundation was laid for the introduction of the telegrams, except that it was slioum that they had been received in the usual way at the office of the Western Union Telegraph Company at Butte, and delivered to- F. Augustus Heinze, or his brother, Arthur P. Heinze, who was acting for him, and that F. Augustus Heinze acted upon them in making the deposit. There was also evidence tending to show that the proposed sale for the company by Haggin had been enjoined at the suit of some of the stockholders, and'for that reason that it had not been consummated; also that the purchase price had been paid back to Heinze upon bis depositing in its place $150,000 in first mortgage bonds of the Montana Ore Purchasing Company as security for the performance of
For present purposes we shall assume, without deciding, that the reference in the receipt to the telegram of September 10th, and the oral evidence, showing that the deposit was made in pursuance and as an acceptance of the proposition therein made, would have been sufficient preliminary proof to enable the court to admit and consider the telegrams and receipt as evidence in an action brought for the purpose of charging Hag-gin upon a contract made by him. It will be observed, however, that the proposition made was, not that the plaintiff would convey unconditionally, but that it would convey in case it could secure the necessary consent of the stockholders at a meeting to be held for that purpose-, which the president would proceed to do. Hnder the provisions of law in force at the time these negotiations took place, the board of directors of a mining corporation organized under the laws -of this state had no authority to sell, lease, mortgage, or otherwise dispose of its real estate, nor could the board confer such authority upon an agent, whether he was an officer or other person. Sections 492 and. 493 of the Fifth Division of the Compiled Statutes of 1887, brought forward into Civil Code (Secs. 1012, 1013), are applicable, and require any such disposition of property to- be authorized by consent of stockholders owning at least two-thirds of the shares of the capital stock at a meeting called and conducted as therein directed. Hnless these provisions of law are observed, a sale, lease, mortgage or other disposition of the property could not be made.
It is apparent from the telegram of September 10th that Haggin claimed no authority to act for the corporation, for he expressly states that the corporation will obtain authority in case the deposit should be made. Therefore, while he might possibly be personally liable under his undertaking to answer in damages for failure or refusal to carry it out, he did not, nor could he, bind the corporation by any promise or undertaking whatever in its behalf. Had he made an agreement in the
5. The plaintiff offered to introduce evidence tending to rebut defendants’ evidence in chief to the effect that the vein could be traced through the fault by means of continuous ore bodies identical in composition and character with those found to the east and west of the fault and of substantial commercial value. The evidence consisted of a number of assays from samples taken from the fault matter, and tended to support the contention of the plaintiff that the fault matter consisted of country rock, which contained no mineral except such as could be found in the country rock anywhere in that locality. Upon objection this was excluded on the ground that it was a part of the plaintiff’s case in chief, and not proper rebuttal.
The plaintiff’s theory was, as we have said, that a prima facie case for an injunction was made out by a showing that the defendants were engaged in removing ore from beneath the surface of the Snow Bird claim. This it attempted to do. After the defendants had gone fully into' their evidence tending to ■establish title to the ore, basing their claim in part upon the identity and continuity of the vein through the fault matter, it was clearly competent for the plaintiff to rebut the evidence adduced in this behalf. It was, therefore, error to exclude the evidence offered, as it tended to1 fortify plaintiff’s contention, and to rebut the claim of defendants. If, as defendants contend, the plaintiff had gone into this phase of the evidence in chief, it would ordinarily have been within the discretion of the court to exclude further evidence upon this point; but the record discloses that it had not done so.
Nothing said herein is to be understood as 'an intimation to tbe district court tbat upon another bearing, after considering all competent evidence offered by the parties, it should or should not issue an injunction; nor are we to be understood as having prejudged tbe alleged equitable title of defendant Heinze. Let tbe order be reversed, and tbe cause remanded.
Reversed and remanded.