King v. Mullins

MR. OHIEE JUSTICE BRANTLY,

after stating the case, delivered the opinion of the court.

Under the view we take of the case, it will not be necessary to consider whether the court erred in striking out the notice. Presumably this was done upon the ground which, among others, was laid in the motion, that title cannot be acquired to lands under tbe mineral laws of the United States by reason of brick-clay deposits therein.

Conceding the location to be valid, and that the court should not have stricken out the notice, this, in connection with the evidence offered to show irreparable mischief, presented no ground for an injunction. Upon'this theory the evidence tended to show an unlawful entry and ouster as to' the disputed portion of the ground, but no irreparable injury which the plaintiffs will suffer during the litigation. There is. nothing shown but a simple technical trespass. Nothing of value is being removed or carried away; nor is the adj acent surface being incumbered by the debris deposited thereon to such an extent as to* interfere seriously with the operations of the tenant in possession under qdaintiffs, or the use of the ground for the purpose of manufacturing brick. The estate is not being removed or destroyed, nor is it being seriously impaired. There is presented a case for a suit at law in trespass, such as is this case, or one in ejectment to establish plaintiffs’ title and recover the possession of tlie disputed portion, and it falls clearly within the rule that an injunction will not issue to restrain a trespass unless the injury being done is irreparable, or is in the nature of waste and goes to the destruction of the estate. (Heaney v. Commercial Co., 10 Mont. 590, 27 Pac. 379.) Though the rule laid down in the case cited was modified in the later case of Lee v. Watson, 15 Mont. 228, 38 Pac. 1077, because too broadly stated as applied to the facts in that case, yet, as applied to cases similar in their facts to the one under consideration, it states the correct rule, and is followed.

The foregoing observations render unnecessary a consideration of the question, which arises upon the record, whether the plaintiffs, by reason of their fraudulent collusion with their tenant in possession, and by reason of their apparent abandonment of their placer location under the agreement with the tenant, are in a position to demand any relief whatever from a court of equity.

The order complained of is affirmed.

Affirmed.