Gilpin v. Sierra Nevada Consolidated Mining Co. , 2 Idaho 696 ( 1890 )

BEATTY, C. J.,

Specially Concurring. — Upon the record we have in this matter, were it a hearing upon the merits, I would hesitate to agree to a reversal; for, from the examinations I have been able to make of the testimony, I think its weight seems to be with the defendant. This, however, is not to settle the title to the ground in controversy, but only to preserve its value until that title can be settled upon full hearing. Admitting the defendant is right, the inconvenience to it from an injunction will be less than' would be the damage to plaintiff should he prove to be right. Always, in questions of injunction oh the working of mines, the doubt should be resolved in favor of granting the writ. There is evidence for and against plaintiff’s claim of a ledge in his Apex ground, and in the shaft therein ; but the undisputed fact, which with me is almost controlling, is that the various workings of the Sierra Nevada show a nearly flat vein, with a much more decided dip to the south than to the west, which so far sustains plaintiffs theory that the vein runs easterly and westerly, instead of mere northerly and southerly as defendant claims. At the same time it must be admitted that, from all the facts before us, the general course of the great principal vein through the country, for miles, is as defendant holds. Whether that dip to the south may be from some dislocation of the ledge, from neighboring dikes, or other causes— may be a part of another cross-ledge — I do not undertake to answer. The simple fact is, it is there; and, until clearly explained as only the result of some dislocation of the ledge, and not its true dip, I think plaintiff should be protected. I do not agree to any suggestion that these workings are a part of a wide vein, on the zone theory. While it may so prove, I do not think the facts before us so show; and I will not indulge in any theory. My concurrence in reversing the order refusing the plaintiff an injunction is based alone upon the reasons I have here stated.