32 Mont. 219 | Mont. | 1905
prepared the opinion for the court.
The plaintiff appeals from an order refusing to issue an injunction. The complaint was filed November 26, 1904, and alleged the following facts: The Anaconda Copper Mining Company owned, and still owns, a patented mining claim designated as the Modock, and situated in the county of Silver Bow, and entered into a verbal contract about the-day of June, 1903, whereby the plaintiff leased the property and continued in the possession thereof until April 20, 1904. About this time the plaintiff entered into a verbal agreement with defendant Wall to the effect that Wall should have permission and privilege of entering the claim by a shaft called the “Tripod Shaft,” and connected with certain stopes and a drift. Under this agreement, Wall “might enter into said shaft and into said workings, and might mine and extract ore from the same, during the will and pleasure and during the consent of this plaintiff, with the express understanding that said privilege, permission, or right to mine in said mining premises should terminate and cease whenever or at such time as this plaintiff might desire, and that this plaintiff should have the right to terminate said privilege or permission upon the part of the said Robert Wall whenever this plaintiff might so desire, and upon notice and demand therefor being given by this plaintiff unto the said defendant Robert Wall.”
The complaint further alleges that the plaintiff served written notice upon Wall November 17, 1904, that the permission and privilege to possess and mine the claim would terminate November 25, 1904. The defendants Sutton and Johnson claim to have succeeded to some right under the agreement between the plaintiff and Wall, and to be in the possession of the
The prayer of the complaint is in the usual form — that the defendants be adjudged to have no right or title to the claim as against the plaintiff; that the defendants be enjoined and restrained from mining, extracting, and removing ores therefrom; that a temporary restraining order of the court be issued; and that, upon the final hearing, the injunction and restraining order be made perpetual. The temporary restraining order was issued in accordance with the prayer of the complaint, and a summons and citation were served on the defendants.
At the hearing of the order to show cause, no answer or pleading was filed by the defendants, and their counsel made the following objection to questions propounded to the plaintiff: “We desire to object to the introduction of any and all evidence upon the part of the plaintiff in this case, upon the following grounds and for the following reasons: Because the complaint in this action does not state a cause of action; because the facts alleged and the allegations contained in this complaint do not entitle the plaintiff to any relief in a court
What was the effect of the agreement under which the defendants entered into possession of the Modock claim? The question can be determined without difficulty. The case of Wheeler v. West, 71 Cal. 126, 11 Pac. 871, was an “action to perpetually enjoin defendants from extracting and removing gold from the mining claim of plaintiffs,” and the court said: “The verbal contract of February 14, 1883, as found by the •court and jury, under which defendants were to enter and work a certain portion of the mine if they saw fit, and to exercise their own discretion whether they worked it or not, did not create the relation of landlord and tenant between them and the plaintiffs. The contract gave to them no greater right and had no more force in law than a verbal contract for the sale of the land would have possessed. Their right under such a contract was not in and to the realty, but to the gold, as personalty, when it should be severed from the land. Had it been in writing, it would have given to defendants merely an incorporeal hereditament, and, being verbal, it operated as a license to them to dig and mine for gold within the specified limits, which license protected them from a charge of trespass while in force, but was liable to revocation at the will of the licensors. There is a broad distinction between a lease of a mine, under which the lessee enters into possession anu takes an estate in the property, and a license to work the same mine. In the latter case the licensee has no permanent interest, property, or estate in the land itself, but only in the proceeds, and in such proceeds not as realty, but as personal property, and his possession, like that of an individual under a contract with the owner of land to cut timber or harvest a crop of potatoes thereon for a share of the proceeds, is the possession of the
The authorities cited in the above opinion support the .doctrine announced by the court, and we quote from Biddle v. Brown, supra: “A license merely — a verbal license — is the right to do a particular act, or a series of acts, without any interest in the land. Such a license will exempt a party from an action of trespass for entering the land of another to dig ore, and will give him the property in the ore which is actually dug under it. (Doe v. Wood, 2 Barn. & Ald. 724; 1 Crabb R. P. 96.) But such a license is revocable at any time, at the pleasure of him who gives it.” (See, also, Lindley on Mines, 2d ed., sec. 860; Williams v. Morrison (C. C.), 32 Fed. 177.)
The respondents made the point that the complaint shows that the appellant has no title to the Modock claim, and that therefore he cannot maintain this action. For the purpose of this hearing the respondents admitted that they were in possession under a license from the appellant, and cannot be permitted to urge this point. Whether tenants or licensees, the respondents may not admit that they hold under the appellant, and at the same time say that as to them he is not the owner.
It appears from the complaint that the defendants are insolvent, and are committing waste and destroying the substance of the estate of the Modock claim, and threaten to continue 'these wrongful acts, and the plaintiff is entitled to the equitable relief prayed for.
The court erred in refusing to permit plaintiff to introduce testimony to prove the allegations of the complaint. We
Pee Cueiam. — For the reasons stated in the foregoing opinion, the order is reversed and the cause remanded.
Reversed and remanded.
