Heinze v. Boston & Montana Consolidated Copper & Silver Mining Co. , 20 Mont. 528 ( 1898 )

Pemberton, C. J.

These two cases were argued and submitted together, as the facts and questions presented by the records are conceded to be the same in each case.

Counsel for the appellants do not particularly complain of the action of the District Court in enjoining them, from extracting and removing ores from the ground in dispute in these cases, but insist that the court erred in restraining and preventing them from using the drifts and levels extending under the ground claimed by respondents, mentioned in the statement, for the purpose of running their cars in hauling ores, which they claim come from their own ground, to their shaft.

In Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Montana 519, 43 Pac. 924, we held that the granting of a preliminary in] pendente lite was so largely a matter of discretion that it would be sustained on appeal, when there was a reasonable showing in support of the application therefor in the lower court. See cases cited in that case. We think this may be said to be the settled rule in this state. The question, then, for determination here is, was there such a reasonable showing before the District Court as to authorize that court to enjoin the appellants from running their cars along the levels underlying the ground claimed by respondents, for the purpose of hauling ores to which appellants contend the respondents cannot, and do not, assert title ?

It cannot be disputed that the title to some of the ores and ground in controversy depends upon the question as to where, if at all, it shall in the trial of these causes be finally determined that the Pennsylvania vein in its strike crosses the south side line of that claim. It is fairly to be inferred, we think, from the records of these cases, that bodies of ore, more or less extensive and valuable, underlie the ground in dispute in this litigation. The levels which the appellants claim the right to use for the running of their cars pass through or near to these ore bodies. The appellants alone have access to these levels, for they constructed them and have used them ever since. By means of these levels and the cars used therein any ores under the ground in controversy might be removed, whether they be such as are in dispute or not. Under such circumstances, might not the District Court have reasonably concluded that there was a sufficient showing to support the belief that the property or ores of the plaintiff were so far imperiled as to justify the issuance of an injunction pendente lite restraining the use by the appellants of their cars in and along the levels mentioned %

Might not the District Court, in view of the great value of the property in dispute, — that value depending so largely upon the value of the ores in dispute, — have thought that it would be a proper and discreet exercise of equitable jurisdiction to hold the property intact pending this litigation in order that, when the true ownership has been determined, the owner or owners may possess and enjoy it with its wealth and value preserved, and saved from the liability of receiving it at the end of these trials despoiled of its value, and forced, as per consequence, to a suit for damages, which remedy this court held in Anaconda Copper Mining Co. v. Butte & Boston Mining Co., supra, “would be very inadequate ?” In order to avoid such injurious results to litigants in these mining cases, where so much is so often involved, may it not reasonably and justly appear to trial courts that it is a proper exercise of their equity powers to preserve these large estates intact pending litigation involving their ownership ? And if, from a consideration of all the facts and circumstances involved in such litigation, the District Courts so determine and act, is it within our province to say that they thereby abuse that sound judicial discretion which should control in the issuance of writs of injunction pendente.lite?

The evidence in this case does not show with any such definiteness or certainty in or under what particular ground the ores in dispute are located as would enable the District Court to fix a line beyond which the appellants might or might not go in extracting ores or hauling them with their cars along the levels in question, so as to limit the extent to which the injunction might go. There are frequently questions involved in litigation, concerning the ownership of mines and mining claims, which distinguish it from controversies in relation to other classes of property. For instance: The issuing or refusing to issue, an injunction pendente lite, in a case involving the right to the use of water to irrigate a ranch, may involve the value of a season’s crop to one of the litigants, as well as the value' of his time, etc. But the issuing of such a writ in a mining case frequently involves principally, as in these cases, a question of delay. The ores are preserved in the ground, and the owner is ordinarily only delayed for a time in extracting them by the injunction. We are clearly of the opinion that, in cases like these, it devolves upon the party complaining to show that the District Court has been guilty of a substantial abuse of judicial discretion in the action assigned as error, before this court can be expected to interfere. The records in these cases do not disclose any such abuse of discretion as to justify a reversal of the action of the District Court.

The judgment and orders appealed from in each of the above-entitled causes are therefore affirmed.

Affirmed.

Hunt and Pigott, JJ., concur.