22 Mont. 159 | Mont. | 1899
Defendant, on the motion to dissolve, after introducing maps showing the relative positions of the veins and claims involved, put in its evidence which consisted principally of the testimony of mining engineers who are in charge of and familiar with the workings of the Pennsylvania and other of defendant’s lode claims. From their testimony we collect the following: When this action was brought, defendant was working in No. 3 vein, as shown on the diagram, on the plane of a section 621feetfrom the Pennsylvania claim, at the point where No. 3 vein is nearest to the north side of the Pennsylvania claim. Upon the trial of a suit entitled “Morse v. The Montana Ore Purchasing Company,” pending in the Federal Courts, this plaintiff had designated a tract of country, indicated on the map, as a mineralized zone having its apex in the plaintiff’s Rarus claim, but such zone lay east of defendant’s No. 3 vein, which was not one of the veins of such zone. Plaintiff’s witnesses had sworn to this effect in said former suit, and had claimed that the hanging wall of such zone was quite a distance north of defendant’s No. 7 vein, as shown on the diagram used. Witnesses said that No. 3 vein would probably have its apex 600 feet south, and No. 7 also many feet south, “of any ground owned by plaintiff; that plaintiff had never done any development work to demonstrate where the apex of the vein they claim is; that, on the trial of the above referred to suit in the Federal Court, plaintiff’s witnesses had sworn that in the Pennsylvania shaft, close to the end line where a crosscut had been driven, there was no vein, and defendant’s experts said on this hearing, if that were so, it would be impossible for the apexes of the No. 3 and No. 7 veins to come within plaintiff’s ground at all. Witnesses also said that a 40 degree line, as fixed by the court’s order, cut right through No. 7 vein, and all that portion of the vein beneath the line could not be worked; that the crosscuts shown
The cross-examination elicited that, so far as any veins showed which were developed by the plaintiff towards the surface lying east of the west end line of the Johnstown, they had their apexes in the plaintiff’s ground; that the strike of No. 3 vein on the 600-foot level underneath the Pennsylvania surface, as compared with the direction of the Johnstown side line, is approximately parallel, and the apex of said No. 3 vein would lie very close to-the south side line of the Pennsylvania claim; that in the trial in the Federal Court defendant’s contention was that there was nothing to justify the theory of a zone, but, if there was a zone, it would embrace the whole of Butte City; that some of the stopes made on the ore body had one dip, others another; some of the ore bodies were vertical, others dipped 45 degrees to the south; that there are two veins between what had been termed the east and west faults — one with a dip of about 65 degrees, the other of 40 to 45 degrees; that, in places, the vein or veins had a flatter dip, and, following a flat vein to the south on the dip, it would not reach No. 3 and No. 7 veins, but go to the west of them; that there are several faults down in the Pennsylvania claim; that in some places the apex of the vein is 1,000 feet below the surface, but that at one point it is cut by the 40 degree line.
It was also testified to that the apex of.the zone claimed by plaintiff is 130 feet on the west end line of the Johnstown, and 300 feet on the plane of the east end line thereof; that it had been claimed by some of plaintiff’s engineers in the Federal suit that a crosscut that had been run south from the hanging wall was all in country rock; that others had said there was a small vein up near the north end, but that in its course south there was no vein; that neither of the veins Nos. 3 or 7 had an apex in that portion of the Johnstown owned by plaintiff; that the dip of the Pennsylvania No. 1 vein from
On the part of plaintiff, the evidence of its engineers was that it is impossible to tell where the ore bodies included in the Pennsylvania claim do apex; that ore bodies are to be found in- the Pennsylvania underlying a plane drawn through the north side line of the Pennsylvania claim, and extended to the south at an angle of 40 degrees. These ore bodies lie comparatively flat, particularly on the west side of fhe ep.st • fault, and veins Nos. 3 and 7 may have their apexes in the Johnstown and in all probability they do. These veins have a much flatter dip on the west than on the east side of the fault, as they seem to change their dip passing through the fault. The east fault intersects the veins. No. 3 has ore on
On cross-examination it was developed that all of the ore streaks lying above a certain point in one the faults have about a 40 degree dip; below that they are straighter. It was-also testified to by plaintiff’s witnesses that in the No. 3 vein there were places where it was intersected by the east fault; that there was a crevice deemed a clay seam; that all of the ore streaks to the west of the clay seams in the Rarus have a very flat dip, approching 35 degrees in places; that the strike of No. 3 vein is about parallel to the side line of the Johns-town’s side line, so far as the workings on the 600 and 700 foot levels show; that, if No. 3 vein were continued on its present strike and dip, the chances are the cropping would be to the north of the Pennsylvania north side line; that the workings disclosed and lying west of the east clay seam or fault, and made from the Rarus shaft, indicate that the apexes are in that part of the Johnstown owned by plaintiff; that the drift run on the 600 level of the Pennsylvania, supposed to be on the No. 7 vein, is practically in the locality where a drift, to be made following the vein from the Johnstown surface by plaintiff, would reach down to the No. 7 vein at the 600-foot level; that there was a fault in No. 3 vein on the 700 level;
In reviewing this case, we have not lost sight of the established rule that the granting or denying of a temporary restraining order by a district court or judge, in mining suits particularly, is a matter of judicial discretion, not to be interfered with on appeal, unless it clearly appears that that discretion has been abused. We affirm that general doctrine, but do not interpret it as granting to the district courts an unlimited discretion, the exercise of which is not to be revised by the Supreme Court of the State. The right of appeal from an order refusing to vacate a temporay order involves the right to have this tribunal review the facts upon which the lower court assumed to exercise judicial discretion, to the end that we shall decide finally whether or not from the decision made by the district court, considering the nature, circumstances, and facts of the case, there has been an exercise of that judicial discretion alone comprehended in law. There is no hard and fast rule governing discretion; if there were discretion would have no place; yet no discretion contemplated by the law can be wisely exercised, unless it be guided and controlled by certain legal principles. These principles have as a foundation the surer doing of equity between parties. The exercise of the power of a judge to say injunction shall or shall not issue, without regard to the grounds upon which that power may be exercised, is not judicial discretion. The regulation of the power must always be by the judgment of the court or judge upon the case before him, rather than by his humor to exert the great power he possesses. If the discretion bé of the one kind, it is not to be interfered with; but if it be of the other it will be reviewed and overturned, as not appearing to have been made on grounds which find legal reason and support.
In this case it appears clearly to us that the court abused
There is nothing substantial in the evidence of plaintiff from which the district court could judge that plamtiff was probably right, and that injury would follow a denial of the restraining order pending the determination of the suit. In-j unction orders should not be kept in force, and parties denied the right of working their own mines, upon the vague possibilities that veins within their claims may have their apexes in another owner’s ground, — in other words, the writ is not solely for the purpose of preserving the property in statu quo, and it will not be granted for that purpose only, unless the party seeking it shows that, if it be not granted, real injury will probably ensue to his rights. A fortiori, it should be dissolved where the party enjoined is within the limits of his own possession, and clearly shows that there is no reasonable probability of his trespassing on plaintiff’s property. Nothing in Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53, or Heinze v.
As what we have said is decisive of the questions before us, we need not consider the unusual order of the court enjoining •defendant from commencing or prosecuting any action at law ■or in equity against this plaintiff in respect to the several matters alleged in plaintiff’s complaint, or for or in respect to the ownership of the veins lying beneath the plane established by the court’s order, until the further order of the court. No showing was made to justify such a clause in the injunction •order, and we know of no authority in the court to make it. We advert to this point merely as going to show that, upon the whole case, the district court has violated the plainest rules which confine its power within the bounds of law and ¡sound legal discretion. (Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co., 21 Mont. 539, 55 Pac. 112.)
The order denying the motion to dissolve and modifying the temporary restraining order issued is reversed, and the cause is remanded for further proceedings, with directidns to dissolve the temporary restraining order heretofore issued.
Reversed and remanded.