Colusa Parrot Mining & Smelting Co. v. Barnard

MB. OOMMISSIO'NEB OLAYBEBG

prepared tbe opinion for tbe court.

This is an appeal from an order refusing to grant an injunction pendente lite restraining respondents from interfering with appellant’s use of tbe waters of Blaektail Deer creek, in Silver Bow county, Montana, to which appellant alleges it has - the prior right.

TJnder tbe former decisions of this court tbe principal question for consideration is whether, upon tbe evidence introduced at the bearing, tbe court below manifestly abused its discretion in refusing tbe injunction applied for. (Craver v. Stapp, 26 Mont. 314, 67 Pac. 937; Nelson v. O'Neal, 1 Mont. 284; Bluebird Mining Co. v. Murray, 9 Mont. 468, 23 Pac. 1022; Klein v. Davis, 11 Mont. 155, 27 Pac. 511; Cotter v. Cotter, 16 Mont. 63, 40 Pac. 63; Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Mont. 519, 43 Pac. 924; Heinze v. Boston & Montana C. C. & S. Mining Co., 20 Mont. 528, 52 Pac. 273; Boston & Montana C. C. & S. Mining Co. v. Montana Ore Purchasing Co., 23 Mont. 557, 59 Pac. 919.)

Tbe evidence submitted to tbe court below in behalf of tbe respective parties was very contradictory, and a review thereof seems unnecessary to this decision. Much competent testimony was introduced and received in behalf of respondents, tending to- show their prior right to and use of the water in question. The weight of such testimony was for the court below. Therefore this court cannot say that the discretion vested in that court was, upon the testimony adduced, manifestly abused.

All the evidence offered by appellant which was excluded by the court was either immaterial in a preliminary hearing like this, cumulative, or offered by the appellant in its case in chief, instead of in rebuttal, as it should have been. At the close of appellant’s case the court overruled a motion' made by counsel for respondents to dismiss the application, thereby, in effect, holding that appellant had made a prima facie case for the injunction sought. Appellant offered no evidence in rebuttal, but was content to rely upon the case it had made in chief.

In answer to' appellant’s contention that much irrelevant and incompetent testimony was admitted at the hearing against the objections of its counsel, it seems sufficient to say that presumably the court did its duty, and based its decision, upon such of the evidence as was competent, and did not consider such as was incompetent or irrelevant. (Montana Ore Purchasing Co. v. Butte & Boston Consol. Mining Co., 25 Mont. 427-432, 65 Pac. 420.)

Counsel for appellant object to the character of (be cross-examination of its witnesses by respondents’ counsel. It must. be remembered that this hearing was before the court upon a motion. The methods of procedure in such eases are largely within the discretion of the court, and will not be interfered with unless injury is shown. None is shown by appellant, and, in view of the presumption above stated, this court will not interfere.

Appellant further assigns error upon the ruling of the court below in allowing costs to respondents. The language of the order complained of is, “And it is further ordered that the said Butte Ice Company and W. McC. White have and recover from the plaintiff all costs accruing upon the said order to show cause.”

The power to allow costs is purely statutory, and therefore, unless some statutory authority' exists for their allowance in matters of this charácter, the allowance made was erroneous. The statutes of Montana allow costs to the prevailing party upon final judgments rendered in certain actions. (Code of Civil Procedure, Section 1851.) By Section 1853 costs are left to the discretion of the court in other actions. This section also provides that no costs shall be allowed in certain instances. Certain other sections of the chapters on costs allow them in certain other proceedings in court, but there is no provision allowing costs upon motions concerning injunctions. In fact, Section 1861, Code of Civil Procedure, by providing that the losing party upon all motions must pay the other $10 “as costs,” precludes the court from allowing any other costs.

Counsel for respondents seek to justify this allowance under the provisions of Section 880 of the Code of Civil Procedure This section provides as follows: “Where an injunction order is granted without notice, and the same is afterwards dissolved upon the application of the party enjoined thereby, the court or judge to whom, the application to dissolve is made, may award as costs of the application against the plaintiff, and in favor of the party applying, such sum as to the court or judge may appear just, not less than ten dollars, nor more than one hundred dollars.” We think the provisions of this section are inapplicable to the present case. The record discloses no application on the part of respondents to dissolve any “injunction order.” Again, in the application of the provisions of this section, the court or judge must fix a definite amount, not less than $10 or more than $100, which he awards “as costs” in favor of the person making the application. No sum is fixed here, but all costs are allowed. It is very apparent from the reading of the order made that the court did not have in mind, and did not intend 1» apply, the provisions of either Sections 880 or 1861, supra, when he made the order appealed from.

We deem it proper to' say that this court does not decide, or even intimate an opinion, as to whether the evidence offered would warrant a decision against the plaintiff on a trial of the ease -oil its merits. The mile is well settled that evidence suffi-eie&t to .authorize a granting of a preliminary injunction oar to warrant the refusal thereof may not be sufficient to maintain a like decision upon a final trial of the action on its merits. (Craver v. Stapp, 26 Mont. 314, 67 Pac. 937; Maloney v. Kinig, 25 Mont. 188, 64 Pac. 351.)

We therefore conclude that the court erred in allowing costs to respondents, and that the order appealed from ought to be modified in that regard -by striking out the provisions for costs, and, as so modified, be affirmed.

Pee Gueiam. — 'For the reasons contained in the foregoing opinion, the order appealed from is affirmed, with the modification suggested.