30 Mont. 484 | Mont. | 1904
delivered the opinion of the court.
This cause was heretofore before this court on appeal by the defendant from an order granting an injunction pendente lite. Upon consideration of the facts exhibited in the record, the order of the district court was modified. (26 Mont. 265, 67 Pac. 1134.) Afterward an application was made to the district court to extend the scope of the order so as- to include ore bodies expressly excluded from its operation by the order of this court, it being alleged that subsequent developments made in the disputed territory demonstrated that these ore bodies belong to a vein having its apex in plaintiffs’ ground. Charges were also made that the defendant, though enjoined from mining within plaintiffs’ boundaries and removing ore therefrom, burnt powder and other material in its own workings adjacent.
The situation of the property involved, and the controversy with reference to it, is illustrated by the following diagram:
The legal title to an undivided six-eighths interest in the-Minnie Nealy lode claim is admitted to be in the plaintiffs. The claims to1 the north, the Piccolo and Gambetta, belong to the defendant. The contention of plaintiffs is that the apex of the discovery vein in the Minnie Nealy is found near the east boundary of the claim, at the discovery shaft, and passes through the claim from the east to- the west nearly parallel with the south boundary line of the Piccolo, and crosses, the west end line of the claim immediately west of the west shaft; that it dips to the north at an angle of about ‘l0 degrees; and that the defendant is trespassing upon the exterior portions of it beneath the surface of the Piccolo and Gambetta claims. The
The workings where the nuisance, is alleged to have been committed are in the Minnie Llealy ground, and are connected with the plaintiffs’ workings by a crosscut extending south from the point E. It is charged that a, fire .was- built in this crosscut near the point E, and that the smoke created by it was carried by the natural draft- through the- crosscut south into plaintiffs’ workings.
The evidence in the record fails to disclose any additional development by the plaintiffs, tending to connect these excluded ore bodies with the apex of the Minnie llealy vein.
Much mining has been done by the defendant on the- various levels from the 800 down to the 1,200' since the order was modified, but none of this development tends to support the conclusion that the ore bodies in controversy belong to the Minnie llealy vein. Furthermore, the plaintiffs have not by their operations so developed their own workings from the apex of their vein down to the disputed territory as to furnish substan
There is no substantial ground for controversy as to the meaning of the order made by this court upon the former appeal. It is said by counsel for plaintiffs that it is ambiguous, in that there are two points at which “the north side line of the Gambetta lode, clailm intersects the third or 300-foot level, south of the Leonard shaft,” and that, as this court evidently intended to so fix the position of the dividing plane as to preserve the property pending the litigation, a proper construction of the order -would make the plane pass through the point G, instead of B. It, is further said that, as a vertical plane passing through the point G cuts through the ore bodies, and leaves a portion of them to the north, to be mined out by the defendant, the injunction order should, in any event, be extended to prevent this result. After consideration of the facts then before the court, the order was made. The word “south” was used intentionally to indicate exactly the point through which the plane should pass. It is not ambiguous, but clear and explicit, as it was in
There is some evidence in the record that, about the time the injunction was applied for, certain employes of the defendant were engaged in creating smoke in the crosscut extending south from the disputed ore bodies, and that by natural draft through this opening this smoke found its way into the workings of the plaintiffs within the Minnie Tlealy ground. It created discomfort to. plaintiffs’ employes, and temporarily stoppied operations. It appears, however, that there was a controversy between the parties over the use of that crosscut; the plaintiffs’ employes having attempted to put in a bulkhead near the point A to exclude the defendant’s employes from the Avorkings to the south. The smoke seems to have been created for the purpose of preventing the completion of this obstruction, and not to interfere with plaintiffs’ mining. This crosscut is one of defendant’s Avorkings, and, by the terms of the modified order Imade by this court, the defendant and its employes Avere entitled to use it as a, passagcAvay to all the Avorkings in the Gambetta and Piccolo claims south of the vertical plane for the purpose of inspection and repairs. (20 Mont. 205, Oí Pac. 1134.) The district court doubtless entertained the view that the occurrence Avas one of the incidents of a squabble for the possession and control of this opening, and Avas not intended to be a continuing nuisance, so as to interfere Avith the plaintiffs in the prosecution of their ordinary mining operations. As the eAÚdence of the circumstances attending the incident is not Arery clear, and as the conclusion drawn from it by the district court is probably correct, this court will not reverse its action.
Let the order be affirmed.
Affirmed.