111 P. 150 | Mont. | 1910
delivered the opinion of the court.
Upon the filing of the verified complaint, the district court of Deer Lodge county issued an order to show cause why an injunction should not be granted restraining defendants from doing certain things of which complaint was made by plaintiff. The defendants appeared by answer, and a hearing was had, at the conclusion of which the court granted an injunction pendente lite, by the terms of which defendants “are enjoined and restrained from depositing sawdust in the stream flowing through plaintiff’s Ruby First placer claim described in the complaint, or upon the banks thereof, from whence it would ultimately naturally deposit in said stream above plaintiff’s said placer claim, or upon the adjacent placer ground, and valley land, within said Ruby First placer claim, and as distinguished from the hill lands. ’ ’ From the order granting this injunction defendants appealed.
The injunction is not so broad as requested by plaintiff in its complaint. It refers only to one ground1 of complaint made, and it will therefore be necessary to consider the pleadings only so far as they relate to the particular matter covered by the injunction. The plaintiff alleges that it is the owner of the Ruby First placer mining claim, that it has expended large sums of money in constructing a steam dredge for conducting its placer mining operations on said claim, and in constructing a dam necessary for impounding water sufficient for its use. It then alleges that the defendants have built and are operating a sawmill immediately above the point where plaintiff is intending to operate its dredge; that there is a stream of water flowing by the sawmill
Upon the hearing plaintiff introduced the testimony of a civil engineer who had been upon the ground a short time before the hearing, making surveys, and who observed the conditions about the sawmill and at the sawdust dump. This witness testified that the sawdust was carried away from the mill to the dump by means of water running through a box flume. Some of the pertinent testimony given by this witness follows: “Q. And how did this dump lie at this time, with reference to the creek itself, through the ground ? A. This dump is to the southwest of the creek, but there is a great deal of sawdust that is going down in the creek bed. It is distributed all the way down to the dredge. * * " Q. And how did the water act after it had dumped upon this sawdust heap, or did you observe it? A. It would always dam itself up, and it would form a dam on the pile until
A witness Simon, for the plaintiff:, testified that, while the main sawdust dump is some fifty feet from the creek, the sawdust is scattered about the creek bank and into the creek, and has been carried down the creek and deposited on the placer ground from the mill to a point below where the dredge was then located,, a distance of about half a mile. This witness also testified that the sawdust, when water-soaked, sinks'and is intermingled with the sand, gravel, and dirt; that, if deposited in the sand, gravel, and dirt to be worked by the dredge, the sawdust would clog up and obstruct the machinery, particularly the trommels and riffles, to such an extent that the valuable minerals would not be saved, and would also interfere with the working of the pumps.
Two other witnesses for plaintiff, William and John Goodwin, who constructed the dredge for plaintiff and who appear to be men of wide experience in handling dredges in placer operations, testified to substantially the same facts so far as the effect which the sawdust would have upon the operations of the machinery is concerned. The witness William Goodwin also testified that there was sawdust on the placer claim which had been washed down from the mill. It is admitted in the answer that defendants claim the right to continue their operations of the mill as theretofore conducted.
Much of the argument of counsel for appellants might be apropos if this question arose upon an appeal from an order granting a permanent injunction after a hearing upon the merits; but the rule applicable in such a case is not the rule to be applied in a case of an injunction pendente lite. And whether or not we might deem the exigencies of this case, as disclosed at the hearing, sufficient to warrant permanent relief by way of injunction, is not now for consideration. It is not essential to the validity of an order granting an injunction pendente lite that the evidence in support of the order should be of such character as to
However much the evidence offered by the defendants may conflict with that given by the plaintiff, we do not feel disposed to interfere with the finding of the trial court that the evidence preponderates in favor of plaintiff’s contention. The trial court, in the first instance, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. It occupied a position much more advantageous than does this court, in that it heard the witnesses testify, observed their.demeanor, and was therefore much better qualified to weigh the evidence. Under such circumstances, this court has repeatedly refused to interfere. Not only so, but it is the rule now too well established in this state to be longer open to dispute, that this court will accept the findings of the trial court in equity proceedings, unless the appealing party can show that the evidence preponderates against such findings. (Quirk v. Rich, 40 Mont. 552, 107 Pac. 821; Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860; Pope v. Alexander, 36 Mont. 82, 92 Pac. 203; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6.) Upon the record here presented, we are unable to reach the conclusion that defendants have sustained the burden thus imposed.
Much attention is devoted in the briefs to a discussion of the question of equitable estoppel; but we are unable to understand its application upon this appeal. Upon a trial of the ease on its merits, it may become an important matter, but, if we should agree with appellants that the evidence discloses an estoppel in pais, we are unable to see wherein it would effect the result so far as the appeal from this order is concerned. As we read the
We do not find any error in the record. The order of the district court granting the injunction is affirmed.
Affirmed.