Gemmell v. Swain, 28 Mont. 331

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28 Mont. 331 | Mont. | 1903

MR. JUSTICE1 HOLLOWAY,

after stating the case, delivered the opinion of the conrt.

The only question for determination is whether the complaint states facts sufficient to entitle the plaintiff to an injunction. The complaint, upon its face, shows that the land in dispute was vacant, uninclosed, and unimproved mineral land of the United States; that the plaintiff went upon it, and was prospecting for veins of mineral-bearing rock, when he was enjoined. He had made no discovery, and consequently no location had been made, and none could be, for a location can rest only upon an actual discovery of such vein or lode. (Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714; Section 2320, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1424].) He was simply a prospector upon the public domain, with the bare, naked possession of the ground immediately about the three shafts where he was prosecuting his work. His possession was only such as is characterized in the law as possessw pedis, and could not be enlarged to include the entire 20-acre tract, or the whole amount of ground which he might have claimed under one or more quartz locations. Until discovery is made, no right of possession to any definite portion of the public mineral lands can even be initiated. Until that is done, the prospector’s rights are confined to the ground in his actual possession, and until that possession is disturbed no right of action accrues, and even then no injunction would issue to restrain a mere trespass — certainly not in the absence of some showing of irreparable injury or the insolvency of the trespasser.

No contention is made that the work done by the defendants in prospecting this ground was done in or about any one of the shafts where plaintiff was prosecuting his work when enjoined, or that the work done by the defendants in any manner interfered with the .work done by the plaintiff. The fact that plain*336tiff posted a notice a.t each of bis shafts did not create any new right in him, or enlarge the right he already had. A notice of location (for such these notices purported to be) posted upon mineral land before discovery is made is an absolute nullity. ( Upton v. Larkin, 5 Mont. 600, 6 Pac. 66; Section 2320, Rev. St. U. S. [U. S. Comp. St. 1901, p, 1424].) The mere fact that the plaintiff was enjoined from continuing his work, and that, too, wrongfully, as determined by this court (Harley v. M. O. P. Co., 27 Mont. 388, 71 Pac. 407), did not alter the relative rights of the parties, or entitle the appellant here to an injunction in this action. Competing prospectors cannot make use of the writ of injunction to* secure priority of discovery or location on, or apparent superiority of right to, a mining claim.

We are of the opinion that the complaint does not state facts sufficient to entitle the appellant to an injunction, and that the district court committed no error in sustaining the demurrer. The judgment is affirmed.

Affirmed.