It would be doing violence to the object of Section 872 to hold that a corporation can secure an injunction order on a complaint alone, not verified as true, but that an individual cannot; yet such would be the consequences of a rule to the effect that the words ‘duly verified’ ’ mean simply a verification under Section 731, or the general statutes relating to verification. Again, if the due verification contemplated by
Where a corporation seeks an injunction order on a complaint alone, the complaint will usually be verified by some officer, agent, or attorney who knows the facts. Some one, however, must make positive affidavit to their truth, under Section 872, which, in our opinion, specially controls, without distinction between individuals and corporations.
The court therefore properly dissolved the restraining order that had been issued on the complaint alone; but when the hearing was had in support of the application for an injunction pendente lite, and before the order denying the same was made, evidence on both sides was introduced and considered. The question is therefore presented whether, under the pleadings and evidence, the court was correct in denying the plaintiff’s application for an injunction pendente lite.
Before the amendment the defendants were barred. Being co-tenants with the Messrs. Heinze, the plaintiff corporation
The extinction of the strict rules controlling the relationship between co-tenants, in so far as the common law or earlier statutes restricted one co-tenant in the enforcement of a romedy if aggrieved in certain respects, gave the plaintiff a remedy through any appropriate action, including the remedy by injunction. In their learned supplemental brief, counsel for respondents contend that the rule of the Anaconda Case, supra, went too far, because, they say, its logical results will permit one co-tenant to prevent his co-owners from using the common property in any manner, and thus to destroy rights which have always existed at the common law, but which the statute did not take away. It is proper, though, to accept the • statements of the court in that case, and to understand them as applied only to the particular facts and kind of property then before the court. When this is done, the general argument of the opinion does not admit of the unqualified deductions that counsel have made. The rule of the Anaconda Case is well stated in the headnote as follows: “Where one of two tenants in common of a mine owns an adjoining claim, from which, by means of a shaft and underground workings, he extracts the ore from the vein in which they are co-tenants, appropriating it to his own use, this is an assumption and exercise of exclusive ownership over the property, which the tenant aggrieved thereby may restrain by injunction, under Section 592 of the Code of Civil Procedure, providing that, if any person shall assume or exercise exclusive ownership over any property held in tenancy in common, the party aggrieved may have his action for the injury in the same manner as if such tenancy in common did not exist. ’ ’
Counsel argue that injunction will not lie herein, because the law does not say the same remedy shall be given; but to the end that an action may be had, and for the very purpose of affording relief, there is an obliteration of the joint relationship when one co-tenant assumes and exercises exclusive ownership, or takes away, destroys, lessens in value, or otherwise injures or abuses any property held in tenancy in common. With the right of action given goes the right to the instrument, or the means by which to maintain the right; that is, the remedy, for an action is but one of the two remedies laid down by the Code to be administered by a court of justice. (Sections 3469, 3470, of the Code of Civil Procedure.)
The law of 1899 (Sess. Laws 1899, p. 134) is an amendment to the original Code section; it re-enacts Section 592 without change, and then adds certain limitations and qualifications by way of exceptions or provisos. The effect of the
In mining property this general modification applies, also, but we must not overlook the nature of the property. If A. and B., as co-tenants, own a mining claim, and A. assumes and exercises exclusive ownership, by calling it his own, and goes upon it, but will not work it himself, and denies his co-owner a right to work thereon, B. can go onto such mining claim, and enjoy all the rights of occupancy of the mine, by mining and selling the ore, without doing waste. This is B.’s right under the amended statute. Out of an abundant caution, the legislature, in enacting the proviso affecting mining property owned by co-tenants, and to guard against misinterpretation, provided that nothing should prevent occupancy and enjoyment, and that, “in the case of mining property, from mining the same in a miner-like manner, and extracting, milling, and disposing of the ore from the common property, paying its or their own expenses, and subject to accounting to the non-joining co-tenant or joint , tenant for the net profits of such mining operations, if any made; and all liens for labor and materials incurred in such mining shall attach only to the undivided interest or interests of the work
It will seldom occur that co-tenants in a mine will disagree so radically that there can be no practical operation of their property under this amended statute; for, if the working co-tenant mines in a miner-like manner, there will usually be enough confidence in him by his nonjoining co-tenant to accept an accounting, if full, and accompanied by vouchers of shipments, assays, returns, etc. But, if all mutual confidence be gone, the nonworking owner still has the other resort by which to protect himself. He can take in kind, and get every pound of ore belonging to him as it is laid down on the-dump by his working co-tenant; and, if he does elect to take in this way, it becomes the duty of the working co-tenant to deliver his ore to him, so that he can “receive” it, as the law says he may, and all he need do is to pay or tender to the co-tenant so delivering his proportionate share of the actual cost of mining the ore. If the co-tenants are entirely estranged, it may be a matter of some difficulty for a nonjoining co-tenant to make an exactly correct tender or payment, where he takes in kind; but, if he tender enough, his right to receive becomes fixed, and the working co-tenant refuses to deliver at his peril. Now, the perils of refusing to account honestly, or to deliver the ore on the dump where sufficient money is tendered, lie in the possible stoppage of work by injunction, based upon any proper one or more of the several grounds enumerated in Section 592 of the amended law. Entry and use which would have constituted injury under the former Section 592, do not
To contemplate every situation that may arise upon an entry upon mining ground held in tenancy in common is far too difficult a task to undertake. We can do but little more than express our cfpinion as to the meaning of the amended statute, and state its usual applicability. The point we would emphasize is this: That, unless a working co-tenant brings himself squarely within the provisos, the policy and letter of the law preserve to his nonworking co-tenant exactly the same actions against such working co-tenant as he had before the amendment was in force.
“Occupancy” of mining property, under the statute before us, implies a substantial and practical use of the earth for the uses for which it was claimed or located, and as contemplated by the claimants and locators. When a man occupies a dwelling house, his character of occupancy is with reference to the purposes for which the house was built — he lives in it; when he occupies a barn, his occupancy is complete, under the law, if he puts his horses and wagons in it; that is, an occupancy of property is to be understood with reference to the nature and character of the property involved. To occupy mining property, and to enjoy the right of occupancy, under the statute, is to mine the same in a miner-like manner, and to extract ore from the same, mill it, and dispose of it, and not to merely go upon it, yet refuse to dig and mine the ground. If there is such an occupancy and mining on the part of one co-tenant, the statute does not always give to another co-tenant an equal right to mine elsewhere on the same claim; for an occupancy and enjoyment may not always be consistently had by several co-tenants mining at the same time at several points in a single mine. The very statement of the proposition that several owners, unable to agree, can yet carry on mining of their one quartz claim by operating at different
After the valuable right to mine is availed of by a co-tenant, and work is once progressing, then it is to the co-tenant who is opposed to work at all that the law gives its careful protection, — to the unwilling one, the perverse one, or the one who could prevent any mining of the common property were it not for the proviso of the new law, — not the one who is a worker and wants to enjoy the proceeds of the mine; for the worker will be well able to look after his own interests by his actual control of the property. Several co-owners may disagree between themselves as to what is a miner-like manner of working their claim, yet agree to work it when that question has been settled, while another co-tenant will be a dissenter from the doing of any work. The differences of those who fall within the one class will not be hard to adjust, and, when adjusted, disagreements as to other matters will rarely ensue; but while the owner who does not want the property worked at all cannot accomplish all he would wish, as against his co-tenants who want to work, nevertheless he can prevent their going ahead against his will unless they do so with due and exact regard to his rights as a nonworker.
Having concluded our expression of what we conceive to be the law to control cases like the present one, we believe that' under the facts the defendants, who are mining through the Bar us shaft, should have been enjoined pendente Mte. The situation is peculiar, and, under the circumstances, becomes such that the nonjoining co-tenant, plaintiff, may appeal to
An offer to account will not remove the ground of complaint, nor is plaintiff to be denied injunction because it failed to tender or pay its proportionate share of the cost of mining, inasmuch as it is excused from such tender or payment, as the facts show it could not accurately tell what ores it was entitled to, in order to estimate the amount of the tender.
The question of the constitutionality of the amended statute was raised by plaintiff; but as we hold the court erred in de
The order dissolving the temporary restraining order is affirmed. The order denying an injunction pendente lite is reversed. Cause remanded, with directions to proceed accordingly.
Demanded.