Parrot Silver & Copper Co. v. Heinze

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the Court. This is an appeal from an order granting an injunction pendente lite. The plaintiff is the owner of the Little Mina lode claim, situate in the county of Silver Bow. This claim lies in a northwesterly and southeasterly direction. Immediately south of the easterly half of the claim lies the Nipper lode [486] claim, which at the time this action was begun, was occupied and worked by defendant A. P. Heinze as lessee of defendant F. A Heinze, the owner. This latter claim lies nearly due east and west. As ground for the injunction plaintiff alleges that within the boundaries of the Little Mina claim are two veins, the apex of one of which, known as the ‘ ‘discovery vein,” extends throughout the entire length of the claim, while that of the other, or more southerly one, extends from the westerly end line of the claim approximately parallel with the south side line thereof to a point 205 feet west of the easterly end line of the claim, where it passes into the Nipper claim; that the part of this latter vein which is within the boundaries of the Little Mina claim’ in its downward course dips to the south, and so far departs from the perpendicular as to extend outside of the vertical plane of the southerly side line, and to enter the ground lying south of the little Mina claim; and that the defendants, by means of underground workings, have entered upon the portions of said vein west of the point at which it crosses the southerly side line of the Little Mina claim, and through these workings are engaged in mining, removing, and converting to their own use large quantities of ore which belong to the plaintiff. The defendants deny that they are trespassing upon the vein, or any part of the vein, or any vein, which has its apex in the Little Mina claim, and allege that the vein upon which A. P. Heinze is engaged in mining has its apex in the Nipper claim. At the hearing-evidence was submitted, both oral and written as to the identity of the vein in dispute with that having its apex within the boundaries of the Little Mina claim. The district court was of the opinion that this evidence was sufficient to warrant the issuance of the injunction as to A. P Heinze, his agents and employes. The question submitted to us is whether the court’s discretionary power was properly exercised. After a careful examination of the record and the briefs of counsel, we have concluded that there was no abuse of discretion. -The transcript reveals a sharp conflict in the state [487] ments.of the witnesses, both as to matters of fact gained from actual observation of the workings in the properties and in matters of expert opinion based upon these facts. But, inasmuch as there was substantial evidence tending to establish the identity of the vein in the Nipper claim upon which the defendant A. P. Heinze was engaged in mining, with that owned by the plaintiff, we think it proper that the order should stand pending the final determination of the controversy. (Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53; Anaconda Copper Mining Co. v. Butte & Boston Mining Co. 17 Mont. 519, 43 Pac. 924; Heinze v. Boston & Montana Consol. Copper & Silver Mining Co. 20 Mont. 528, 52 Pac. 273.) Several errors are assigned in appellants’ brief touching the admissibility of certain evidence. Counsel fail, however, to point out in the argument wherein the rulings made by the court upon this evidence resulted in any prejudice to the appellants. Under the circumstances we do not feel that it is incumbent upon us to examine them. Let the order be affirmed. Affirmed. Mr. Justice Word, being absent, takes no part in this decision.