Magnet Mining Co v. Page & Panaca Silver Mining Co.

By the Court, Belknap, J.: Upon the filing of the complaint in this case an application was made for an injunction restraining the defendant from extracting or removing ore from certain described mining ground of which the plaintiff claims to be possessed in fee. An order was made fixing the time for the hearing of the application for the injunction; and in the mean time the defendant was restrained from the commission of the acts complained of. The hearing of' the application was continued several times by stipulation, and, for some cause unexplained by the record, was not heard upon the day finally set for hearing. The merits were reached by motion to dissolve the restrain [349] ing order. It was then modified so as to restrain defendant from removing ore from the premises in controversy. The answer fully and fairly denies plaintiff’s alleged title and possession, and no testimony was offered upon either of these points. The questions of title and possession, therefore, stand upon the pleadings. A complete denial by the answer is taken as true, and, in the absence of testimony establishing the material allegations of the complaint, the injunction should be dissolved, unless good reasons appear for continuing it. So, in New York an injunction was retained where it could work no injury, while to dissolve it might do so, notwithstanding a full denial of the equities of the bill. Bank of Monroe v. Schermerhorn, Clark’s Ch. 309. And where the statement of the defendant was extremely improbable. Moore v. Hylton, 1 Dev. Eq. 429. ‘ And where the denial was grounded upon information and belief. Poor v. Carleton, 3 Sum. 70. But no reasons appear to make this an exceptive case. The denials of the answer must be taken as Jirue, and so taken, the plaintiff has no ground for equitable relief. The order appealed from isjreversed and the injunction dissolved.