26 Mont. 265 | Mont. | 1902
delivered the opinion of the court.
The plaintiffs, asserting title in themselves to the Minnie Healy lode claim and to a certain vein alleged to bave its apex therein and to' dip to the north beneath the Piccolo' and Gam-betta lode claims owned by the defendant, brought an action against the defendant to quiet their title and to enjoin the der fendant from trespassing thereon. Upon the complaint and an affidavit in support thereof, the judge below issued a restraining order' against the defendant, and also an order to show cause why an injunction pending the action should not be granted. After a hearing the order to show cause whs made absolute on April 25, 1901, and an injunction pendente Hie granted as prayed for in the complaint. From this order the defendant has appealed.
We have devoted much time to the study of the transcript and ¿brief s, consisting of 310 printed pages and eight maps of the property in dispute. No useful purpose would be served by a statement or discussion of the evidence. The sole ques
The injunction order should be modified so as to exclude from its operation the “Leonard” vein throughout its length and depth, leaving in force the order so far as it enjoins the defendant from entering upon the Gambetta vein and extracting ore therefrom. To accomplish this purpose we think the order should, in the present state of development and under the evidence adduced, go no further than to’ enjoin the defendant from entering upon (except for the purpose of passing to and from ground to which the injunction order of the district court does not apply, and for the purpose of keeping the openings in repair) or mining, or extracting ore from, any of the ore bodies ■embraced and described in the injunction order of the district court, lying towards the south of a plane descending vertically into the ear th on a line par allel with the south side line of the Piccolo lode claim and passing through the point at which the north side line of the Gambetta lode claim intersects the third, or 300 foot, level south of the “Leonard shaft.”
The cause is therefore remanded with direction to' the district court forthwith to vacate so much of the order as enjoins the defendant from entering upon or working, or extracting ore from the Leonard vein, or from any vein or veins lying to'wards the north of the plane indicated, and also from entering upon or using any levels or openings in the possession of the defendant and passing to the south of the plane or lying on either side thereof, as the means of access to' other openings and workings of the defendant not described and embraced in the injunction order appealed from. In the event the plaintiffs
Reversed in part, with directions.
Rehearing denied February 6, 1902.