20 Mont. 444 | Mont. | 1898
Appeal by defendants from an order of the court below granting an injunction pendente lite.
Plaintiff alleged in her complaint (filed August 10, 1897) ownership of, and right of possession to, the Blue Gulch placer mining claim, situate in Silver Bow county, the wrongful entry and taking possession by defendants about June 1, 1897, and their continued possession and mining of the same, and extraction of gold dust therefrom, and prayed for the recov ery of possession of the claim, and for damages. With the complaint was filed an affidavit of the plaintiff, reiterating its allegations, and charging the insolvency of the defendants, demand by her on them for the delivery of possession and cessation of mining, and their refusal to accede to her demand, and alleging that defendants would, unless restrained, con tinue to work and mine the claim, the effect of which would be the washing away of the soil.
Upon the complaint and affidavit the court issued a restraining order, and an order to show cause why an injunction pendente lite should not be granted. Prior to the hearing of the order to show cause, defendants filed an answer denying plaintiff’s ownership and right of possession, and wrongful entry and possession by them. In the answer was incorporated a counter affidavit denying their insolvency. They alleged that plaintiff failed to perform upon the claim the annual labor required by law during the years 1893, 1894, 1895 and 1896, and had failed to resume work thereon in good faith prior to the time the defendants relocated the claim, in 1894 and 1897. They asserted title, alleging that they were in possession of 2,250 feet in length by 600 feet in width of the ground in dispute, by virtue of their locations of 1894 and 1897 upon the public domain of the United States, followed by the annual labor thereon.
On the hearing of the order to show cause, August 23, 1897, the plaintiff introduced in evidence the notice of location of the Blue Gulch placer claim, made May 29, 1893, by plaintiff’s predecessor in interest, and introduced evidence tending to show a valid location. Proof was also made by
In behalf of defendants some evidence was elicited from defendant McRae tending to show that the Blue Gulch placer was not located as required by law, and that the annual labor had not been performed; that defendants in May, 1894, located a portion of the ground in controversy, and named it the f‘Perry Clance Placer;” that on August 2, 1897, certain of the defendants posted a notice of location, and staked the Last Chance placer upon part of the ground embraced within the claim of the plaintiff, but had not perfected the location when the restraining order was served. There was also some testimony tending to show that the plaintiff in 1894 saw some of the defendants working the Perry Clance claim, and that she said nothing with reference to stopping their work.
When the testimony was all in, defendants requested the court that, in the event plaintiff was found entitled to a temporary injunction, defendants be permitted to perfect their location of the Last Chance placer, and be permitted to perform the annual labor upon the Perry Clance claim in order to protect their rights in the property until the termination of the suit; but the court denied the request, the defendants excepting. The court thereupon granted an injunction pending the suit, restraining the defendants from trespassing or mining upon, or disturbing the soil of, the plaintiff’s claim, and ordered plaintiff to file an undertaking, with sureties in the sum of $500, to indemnify defendants; and from this order the defendants appeal.
While there was some conflict in the testimony taken, sub
The appellants urge that the paramount title set up by them should be judicially determined before its assertion is enjoined. A controversy as to the title was deemed sufficient in the former equity practice to exclude the jurisdiction of the court to issue an injunction to restrain the defendant from using the property pending suit. By that practice, plaintiff was left to his remedy at law. (Lindley on Mines, § 872.) But in modern practice, in cases of the character of the one at bar, and, under such a showing as that here- made, it may not be said by the appellate court that the court below erred in granting an interlocutory injunction, unless it appear that the plaintiff has no title, or, at least, that there is no reasonable ground for assertion of title by plaintiff.
Mr. Lindley, in his recent and masterly treatise on the American Law Relating to Mines and Mineral Lands, says: “This doctrine has been greatly modified in modern times, and it [the granting of injunctions pendente lite] is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the legal title. It comports more with substantial
We think there was no abuse of discretion in refusing defendants permission to perfect their alleged location of the Perry Clance placer, and to perform annual labor on the Last Chance placer. No sufficient showing was made to entitle appellants, as a matter of right, to the privileges asked by them; nor did they suggest that they would or could indemnify plaintiff against possible injury to her property which might have resulted from the exercise of the privileges sought. Appellants did not place themselves in a position to successfully complain of the action of the court in refusing their request.
The order appealed from is affirmed.
Affirmed.