| Idaho | Jan 20, 1913
— This appeal is from an order denying the application of the appellant for an injunction pendente lite. The complaint alleges the ownership by the appellant of the Stewart Fraction quartz lode mining claim and that within said claim is a vein or lode, the top or apex of which crosses the easterly end line of said claim at approximately the center thereof between corners 1 and 2 and extends within the boundaries of said claim in a westerly direction, following the general course of said vein for a distance of 705 feet, more or less; that said vein has a downward course, and descends into the earth southerly and beyond the south boundary and side line of said claim into .and beneath the surface of the Ontario lode mining claim; that defendants have been, and are now, extracting ore and mineral from that part of said vein beneath the surface of the Ontario claim between a vertical plane drawn downward through the east end line of said Stewart Fraction claim extended southerly in its own direction and a vertical plane drawn downward through a line parallel to, and 705 feet westerly from, said east end line extended.
The prayer is for an accounting, for judgment for the value of the ore and mineral removed by the defendants, and for a temporary injunction pendente lite and a permanent injunction when the action is finally determined.
The complaint is supported by several affidavits. At the time of the commencement of the action a restraining order and an order to show cause why an injunction pendente lite should not be granted were issued. The application was made and decided upon the complaint, affidavits filed by the respective parties, oral testimony adduced by the cross-examination of certain of the witnesses for the plaintiff and the oral
The only error specified is that the court erred in denying said application for an injunction.
There appears to be no question in regard to the fact that the Stewart Mining Co., a corporation, owns the Senator Stewart Fraction mining claim, which claim is patented. There are three ore bodies beneath the Ontario mining claim, which are in controversy. The most southerly one is designated as the “Frank” ore body, the most northerly the “Gray” ore body, and the middle one, the “May” ore body.
It is contended by the appellant company that the apex of said ore bodies is within the surface boundaries of the Senator Stewart Fraction mining claim, and that the ore in said ore bodies is the property of the Stewart Mining Company. It is claimed that said apex is a subsurface apex. _ It is admitted by both the appellant and the respondents that the said vein or lode ends along the line of the said apex where it encounters a fault of large magnitude known as the “Osborn” fault. What is claimed by the appellant to be the apex of said vein is claimed by the respondents to be the side edge or bottom edge' of the vein. There is but little controversy regarding the facts to be considered in determining the question of apex. The position of the respondents with reference to said alleged apex is stated in the affidavit of Mr. Hershey, one of the expert witnesses for the respondents, as follows:
“The apex alleged as crossing the easterly end line of the Senator Stewart Fraction mining claim and extending thence substantially parallel to the said line of the said claim is the line along which the northeast ore body is cut off by a great fault. This fault was observed on October 7th, this year, in the Fir tunnel, and in the stopes near the three hundred foot level.....It is one of the great faults of the district and has a very strong gouge and fault breccia. This displacement on the fault is not definitely known but it is certainly some thousands of feet. It is younger than and cuts
Witness Bailey testified: “I visited the place where the •vein and ore body within the Stewart works terminates underneath the east end line of the Senator Stewart Fraction claim. Said ore body and vein are cut off underneath said east end line by fault dipping southwest and having a strike, the •course of which is substantially parallel to the side lines of the Senator Stewart Fraction claim. The line of the vein where it is cut off by the said fault beneath the east end line of the Senator Stewart Fraction claim is merely the edge •of the vein on the line of its dip. The apex of said Stewart vein is much farther to the west end, judging from the dip of the vein, the apex has a course almost at right angles to the course of the alleged apex described in the complaint herein.”
Witness Boehmer testified: “I find a vein penetrating both .properties, having a course north thirty degrees east, nearly parallel to the end line of the Senator Stewart Fraction claim and its apex crossing the southerly side line of the latter about seven hundred feet to the west of its easterly end line.
“At about the middle of this claim the vein is abruptly terminated by an extensive fault which has a course north •seventy-five degrees west. The dip of the vein is in a direction south sixty degrees east, nearly parallel to the side lines of the Senator Stewart Fraction claim.
“The apex of the vein would cut both side lines of this claim, if not cut off by the fault. The fault cuts off the vein on its course to' the north, and this edge of the vein against the fault is nearly parallel to the dip of the vein and is in no sense the apex of the vein. The apex of this vein does not and cannot cross the easterly end line of the Senator Stewart Fraction claim.”
Witness Bradley testified: “The vein now being worked in the Senator Stewart Fraction is one of the northerly and southerly veins of the Wardner district, which is cut off on its northeasterly strike by one of the many important faults that traverse the Wardner district, i'. e., the northeasterly
Witness Sinks testified: ‘ ‘ The alleged apex described in the complaint herein as crossing the east end line of the Senator Stewart Fraction, occupies a position at right angles to the course of the ore bodies which I have been working for the Ontario Mining Company.”
There are affidavits or other witnesses for the respondents substantially to the same effect as given above.
Witness Green, for the appellant, in his affidavit, among other things, states as follows: “This vein has a course which resembles an arc of a circle in which the strike is continually changing, with a consequent change in the direction of the dip. As it approaches the northeast its course changes until it lies approximately east and west, making only a very small angle with the strike of the fault mentioned elsewhere. That this fault does not constitute a side edge termination of this vein is conclusively shown by the fact that the vein departs from the fault at an angle less than forty-five degrees on its
“The facts as exposed in the ground show conclusively that the true top or apex of this vein crosses the east end line of the Senator Stewart Fraction claim and continues in a general westerly and southwesterly direction to and across the south side line of this same claim at a point approximately seven hundred and five feet west of the southi-c-.-'c comer Na. 2 of the Senator Stewart Fraction claim.”
Witness Clancy, in his affidavit, states as follows: “I have prepared a map which correctly represents and shows the true course of apex of said vein in th£ Senator Stewart Fraction mining claim, which map is ma.de a part of this affidavit. The apex of said vein as depicted on said map is not the side edge or bottom edge of the vein but is the true top or apex. From the said top, 'or apex the vein has a downward course for a distance of over sixty feet at an angle of from forty-five to fifty degrees from the horizontal and continues in a downward course at a lesser angle to and into the Ontario mining dfmi,. ....
“I have maps of cross-sections of the vein from the top or apex of the Stewart Fraction to the workings in the Ontario claim, which said maps are hereto attached and made a prrt of this affidavit. The apex of said vein, as shown by the map hereinbefore referred to, and the downward course of the vein as shown by such cross-sections were placed on such maps by me from actual surveys made by me in the grcr.md, in connection with mining operations conducted therein. ”
Witness Beaudry testified: “The apex of this vein, as it was '’¿¿found to exist by actual mining operations conducted, is correctly depicted on -.the map made and a part of the affidavit of Mr. Clancy; that the stopes and workings following the vein for a considerable distance along this vein in the Stewart Fraction claim are closed by filling and pressure of the ground so that it is impossible at this time and has been impossible for some time to enter the same. I know, however, that the vein was continuous and' the ore in the vein was continuous, as stated above. This vein 'as disclosed by such workings had a pitch downward from the ,apex at an angle of forty-five to fifty degrees from the horizontal for a distance of sixty feet. This downward course of the vein can now be seen in the stopes, which are open. The ore body and vein in the Stewart Fraction claim, which extends easterly and westerly along the claim, is of my own knowledge, gained from actual mining operations in the property, a part of dijd connected with the ore body in the Stewart mining claim sdesignated by Mr. Hershey as the Frank ore body, and which^is in fact the Stewart ore body. The apex of the vein in the extending through the east end line of the Stewart Fraction claim is not the side edge of a vein or the bottom edge o'f a vein, but is the top and true apex of the vein. From this ajiex
“I am familiar with the fault disclosed in the three hundred and the two hundred levels of the Stewart mine, and referred to by Mr. Sershey as the second fault in the Ontario. This fault has caused a displacement of the vein in the two hundred level of about thirty feet. Stoping is now being done above this level and at the top of the stopes the ore from both sections of the vein is continuous through the plane of the fault. I therefore know and state, that what is designated in the affidavit of Mr. Calloway as the southern ore body in the Ontario is a part of the same vein as the other ore bodies shown on the map and made a part of his affidavit. There is a working known as the three hundred of the Stewart extending from the east and west apex in the Stewart Fraction claim to a point in the Ontario claim near the northwest boundary thereof. From this working a drift has been run southerly on ore in the vein to a point within a very short distance of the stopes extended by the Ontario Mining Company above the Gray drift, the works so extending from the east and west apex in the Stewart Fraction has followed the vein and has been in ore all the way. There is no doubt but that the ore body of the Ontario, designated as the Gray ore body, is a part of the same vein and ore body disclosed in the working and drift mentioned.”
Witness Frank testified: “That what he [Clancy] designates as the top or apex of the vein is not the side edge or the bottom edge of the vein and cannot be, for the reasons stated in the affidavit of Mr. Fred T. Greene, to which reference is hereby made. That this apex at all points constitutes the topmost portion of the ore body and vein which has been mined below, and from this apex the vein has a downward course at an angle from the horizontal in excess of forty-five degrees, which is wholly inconsistent with the claim of the defendant that this apex is the side edge or bottom edge of the vein. ’ ’
Witness Miller testified: “That the portion of the apex of the Stewart vein westerly from the point where it crosses the
Witness Merriam testified: “ .... that the top or apex is along a fault plane; that from the said top or apex the vein has a downward course at an angle from the horizontal of forty-five to fifty degrees; that the said apex is not the side edge or bottom edge of the vein but is the true top or apex of the vein; that affiant followed said vein from its top or apex in its downward course to the stopes in the Ontario claim.”
Clancy testified orally that the elevation of the top of the stope at or near the east end line of the Senator Stewart Fraction claim is approximately 2,665 feet, and that the elevation of the top of the stope at a point marked “N” on the map introduced as Exhibit “E” is approximately 2,990 feet, and that there is a difference in elevation of 325 feet; that the distance between the points mentioned is 600 feet; that the angle of declination is approximately twenty-six degrees, which is less than the slope of the mountains in the Coeur d’Alene district, the usual slope being about thirty degrees. The witness further testified that the cross-sections shown on said map show that the vein has a downward course of 45 degrees from the top or apex for a distance of eighty or ninety feet, and that the cross-section “B” shows the vein to have a downward course as it leaves the apex of forty-five degrees.
There is a clear conflict in the opinion testimony of the witnesses as to whether the apex of said three ore bodies is within
As this case will shortly be determined upon its merits, we are not inclined to comment very extensively upon the evidence. While we think from all of the evidence the court would not have abused its discretion in granting an injunction pendente lite or in requiring the respondents to give a sufficient bond to secure the appellant for the ore taken out, in case the action was finally determined against the respondents, we are not inclined to hold that the court abused its discretion in refusing to do so. However, in cases of this character, it is proper for the court to grant an injunction or require security to be given pending the determination of the issue as to the ownership of the ore, if there is any doubt in the mind of the court as to the title. The mere existence of a doubt as to the title does not of itself constitute a sufficient ground for refusing an injunction. However, in questions of injunction against the working of mines, the doubt should be resolved in favor of granting the writ. This comports more with substantial justice to the parties, we think, than to leave the plaintiff to pursue his remedy at law provided he is successful in sustaining his title to the ore. (Lindley on Mines and Mining, sec. 872, p. 1608.)
It was held by this court in Safford v. Fleming, 13 Ida. 271, 89 Pac. 827, that it has been the practice of courts in mining cases to be liberal in granting injunctive relief in min
We are unable to say, in this case, that the judge or trial court abused its discretion in refusing to grant said injunction pendente lite, therefore its action therein will be affirmed, and it is so ordered. Costs awarded to respondents.