25 Mont. 427 | Mont. | 1901
delivered the opinion of the Court.
This action was instituted by the plaintiff for the purpose . of obtaining a perpetual injunction restraining the defendants from obstructing a certain way or road used by plaintiff in hauling lumber and other supplies to its mines and in conveying the ores extracted therefrom to its smelter. The smelter is situated near Meaderville, in Silver Bow coxxnty, northeast of Bxxtte. The pxxblic highway leading from Bxxtte to Meaderville runs first east from Bxxtte, and then north, passing immediately to the xxrest of the smelter. A short distance to the soxxth of the smelter the road in controversy leaves this, highway, and leads off in a northwesterly direction, passing over the Never Despair, Michael Devitt and other patented mining claims belonging to the defendant Bxxtte & Boston Consolidated Mining Company, to the Rarxxs and Johnstown mines, which belong to the plaintiff. The Michael Devitt claim lies in an easterly and westerly direction contigxxoxxs to and west of the Never Despair claixn, and the l'oad in question, entering xxpon the former claim near the soxxtheast corner, passes diagonally over it towards the northwest. At the time this sxxit was brought, the defendant corporation, through the other defendants, its officers and ageixts, was engaged near the soxxtheast corner of the Michael Devitt claixn in making excavations for the foxxndations of á boiler lxoxxse and oi*e bins, which it intended to xxse in hoisting and storing ore from a shaft sunk on the Never Despair claim, a short distance to the east. The complaint alleges that these operations of the defendants had seriously obstructed the road, and deprived the plaintiff of a free passage over it; that the said road had for many years been used and traveled by the public generally with the knowledge and acqxxiescence of the defendant corporation and its predecessors, and in common with them; that the same is a pxxblic highway by prescriptive use; and that the obstructions created by the defendants woxxld resxxlt in special damage to plaintiff, in that they exxt off all access
The defendants admit that their operations interfere with free passage over the road, but deny that the road is a public highway by prescriptive use or otherwise, or that plaintiff has a special right or easement therein. Upon the filing of the complaint the district court made an order to show cause why an injunction ad litem should not issue. Upon a hearing the order was discharged, and the injunction denied. The plaintiff has appealed.
1. The principal question presented to this court is whether the district court abused its discretion in refusing to issue the injunction as prayed. We do not think it did.
Plaintiff did not claim, nor did it make any effort to show, that the authorities of Silver Bow county had ever attempted to establish by the ordinary legal proceedings, or to assume control over, the road in controversy, or that plaintiff had ever secured a right of way therein under the provisions of the statute regulating’ the procurement of access by private roads 1o mines and mining claims. (Compiled Statutes 18S7, Fifth Division, Secs. 1496-1507; Political Code, Secs. 3630-3641.) Its effort was directed altogether to an attempt to show adverse user by the public for the period prescribed by law as sufficient to bar a recovery of the land occupied by the road, and, in case the evidence fell short of establishing this, to show' that the user by plaintiff had been exclusive and adverse for this period; so as to establish the right to such a private way as is provided for under the sections of the statute cited, and thus to bring the case within the principle of State v. Auchard, 22 Mont. 14, 55 Pac. 361. Under the law as declared in that case, a high-wyay by prescription exists only where the general public has used the Avay without substantial interruption for the period of time fixed by the statutes of limitation applicable to' lands. By analogy, and of necessity, the same rule applies to private
Upon the whole case the defendants made a reasonable showing that the plaintiff’s claims are unfounded in fact, and, under the rule heretofore declared by this court in similar cases, the order will not be reversed on the ground that the trial court might have entertained a different view. (Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, and cases cited.)
Counsel argue that, as it appears from the evidence that the road in controversy had been in use for more than five years at the time of its obstruction, it is a public highway within the meaning of Section 2600 of the Political Code. This section was construed in State v. Auchard, supra, as “a remedial statute, curing irregularities, but not supplying jurisdiction, where none was acquired, in the creation of the roads, and as recognizing the existence of highways by prescription when they had
2. The court admitted, over the objection of the plaintiff, evidence tending to show the character of the buildings which the defendants were engaged in erecting, and the amount intended to be expended thereon. Counsel for appellant contend that this evidence was irrelevant and immaterial, and that the action of the trial court in admitting it was prejudicial. We are not prepared to say that the evidence was not properly admitted, but, conceding that plaintiff’s position is correct, we think the error without prejudice. Presumably the trial court based its findings upon such of the evidence before it as was competent, excluding from consideration, such as had no weight or relevancy. The other evidence in the record, the competency of which is unquestioned, was sufficient to justify the findings, and the order will not, therefore, be reversed. (Merchants’ Nat'l Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851.)
The order is affirmed.