30 Mont. 414 | Mont. | 1904
prepared the following opinion for the court:
Appeal by defendants from an order extending the terms of an injunction pendente lite. The circumstances out of which the order complained of arose are, briefly, as follows: Plaintiffs were the owners of a certain portion of the Plymouth quartz lode mining claim. Defendants were the owners of the Silver King quartz lode mining claim, which adjoins the Plymouth claim on the north. Roth are patented properties. The veins having their apices within the boundaries of the Silver King apparently dip1 to the south, and under, the surface boundaries of the Plymouth. In the year 1899 plaintiffs began this suit against defendants to recover damages for an alleged trespass upon the Plymouth by means of underground workings conducted through a shaft upon the Silver King, and the extraction of ores from a vein whose apex is alleged to' be within the Plymouth surface boundaries, and for an injunction against further trespasses. Plaintiffs also sought to have'their title to' the vein in question determined and quieted. The defendants in their answer denied the alleged trespass, and set up that this vein had its apex within the surface boundaries of the Silver King, owned by them, and dipped under the surface boundaries of the Plymouth. They also asked the court that their title to the vein in question be determined and quieted. An injunction pendente lite was issued against defendants soon after filing the bill of complaint, which restrained' defendants “from entering
The practice pursued by defendants in this regard cannot be countenanced or approved of by this court, for at least two reasons:
Subsequent to the above jiroceedings, various suits were commenced by defendants herein as plaintiffs, against plaintiffs herein as defendants (in some of which suits third persons were' joined as defendants), some of which were for the recovery of certain ores extracted by the plaintiffs herein,. and others for
It is very doubtful whether the brief presented by appellants complies with the rules of this court, and consideration of the appeal is objected to on this ground. But an investigation of the briefs and record has disclosed the fact that one prominent question is presented to the court for consideration, and, it being a question of more or less importance to litigants in general, we have concluded to give such question consideration, under the theory announced in Alder Gulch Con. Min. Co. v. Hayes, 6 Mont. 31, 9 Pac. 581, and Brownell v. McCormick, 7 Mont. 12, 14 Pac. 651.
If the ores in question in these suits were extracted from a vein the apex of which was within the surface boundaries of the Silver King, the plaintiffs in such suit were the primary owners thereof; but if, on the other hand, the ore' in question had been extracted from a vein the apex of which was within the Plymouth boundaries, then the defendants in such suits were the primary owners thereof. So we perceive that the question at the basis of each of these suits was, within the surface boundaries of which claim was the apex of the vein from which the ore was extracted to be found? or, in other words, did the vein from which the ore was taken belong to the one party or the other ? The decision in this suit would have settled the controversy as to' the primary ownership of these veins, and therefore of all the ore contained therein. We are therefore of the opinion that there was no occasion for the instituiton of these suits, and that their pendency interfered with the jurisdiction of the court having the control of the suit in which the order appealed from was entered.
The following statement by Beach, in his Law on Injunctions, is very pertinent and correct: “An injunction must be obeyed in its- spirit as well as its letter. The party enjoined must not do the forbidden thing, nor permit it to be- done, nor effect it by trick or evasion. In deciding whether there has been a breach or not, the objects for which the relief was granted must be considered.” (Beach on Injunctions, par. 251; Grand Junction Canal Co. v. Dimes, 17 Simons, 38, 42 Eng. Chan. Rep. 38; Smith v. New York Cons. Stage Co., 28 How. Prac. 277; Ex parte Vance, 88 Cal. 281, 26 Pac. 118.)
To hold that the defendants could not min© any ore in the disputed territory, could not take away or convert to- their own us© any of the ores, rocks or minerals therein, could not interfere with any portion of the premises, or any part thereof, or any of the rocks, ores or minerals therein, but that they might recover the same, or the value thereof, after plaintiffs had extracted them, while a suit was pending the- purpose of which was- to determine, the rights of the parties to- the veins, from which the ore was- extracted, would be, at least, anomalous. The legal effect of the original injunction being the same before as after amendment, and this court having affirmed the granting
We therefore advise that the order appealed from be affirmed.
For the reasons stated in the foregoing opinion, the order is affirmed.