Crescent Mining Co. v. Silver King Mining Co.

MINER, J.: This action was commenced July 18, 1895, in which the plaintiff prays that the defendant and its officers and agents be restrained from diverting or taking from Thayne’s or Shadow lake, by its pipe line or otherwise, or from any of its visible sources of supply or tributaries of said lake, including the said stream issuing from the said Jeannette tunnel, any water or waters therein, or from taking any water from the said plaintiff's pipe line against its will, and from entering upon the JEtna, Hecla, Rebellion, Climas:, Garfield, Senate, Walker, Extension. Spring, and Pinto mines, and from bringing any force of men upon said mining claims, and from using or attempting to use said pipe line upon said mining claims, and for an order to show cause, and for temporary injunction and judgment. Afterwards, on motion of defendant, and upon a hearing, the restraining order was set aside, upon defendant filing a bond, in the sum of $25,000, conditioned to pay all damages that might arise to the plaintiff for the acts complained of. And it was further ordered that the parties maintain the same status existing at the commencement of the suit. The bond ordered was given. The cause came on for hearing upon the order to show cause why the temporary restraining order should not be granted pending a final hearing, and the court granted the restraining order as prayed for, except that the order allowed the defendant, during the irrigating season, to take from the waters of Shadow lake an amount of water equal to the amount heretofore used by the grantors of the defendant, and reasonably necessary for irrigating certain lands formerly owned by Sullivan and his grantors,'described in the proofs, and that in case — 63 — of an appeal from tbe order the defendant should give a supersedeas bond, in the sum of $25,000, suspending said injunction order during the pendency of the suit. From this order this appeal is taken. Upon the hearing, numerous eco parte affidavits were filed, tending to sustain the allegations in the complaint and the denials and allegations in the answer. It also appears from the affidavit of one Thomas W. Ferry that prior to 1886 he and others owned the Thayne and Jeannette patented mining claims, and the Jeannette tunnel, which supplies the lake in question with water, as well as the unpatented claims known as the “Sunlight” and “Starlight,” and that -they continued to own the same, and the water of Thayne lake until they conveyed the. same to the defendant, in 1895, and that the Thayne and Jeannette tunnel was constructed by him long prior to 1886, and was located upon the Thayne patented mining claim, and that he then developed the stream of water in controversy, which ever since has afforded the principal, supply and source of water to Thayne or Shadow lake; that he located the Starlight-and Sunlight claims in. 1881, and made a relocation of each of said claims subsequently,- on the 10th day of January, 1883; that all of said mining and patented claims were located upon vacant, unpatented mineral lands of the United States, and that such locations were made and assessment work done in accordance with law; that the Thayne and Starlight lie together, and substantially embrace what is known as “Thayne Lake,” and that through his permission and license the plaintiff was allowed to insert its pipe line into said lake for the purpose of supplying water to its mines; that the Pinto mining claim was located over the Starlight while it was a valid claim; that he constructed the Jeannette tunnel prior to 1886; and that he and his co-locators owned said claims and water until they sold: — 64 — them to the defendant, in May, 1895. Many of the facts stated in this and other affidavits are disputed by counter affidavits. In fact, the complaint and the affidavits in support of it, and the equities therein alleged, are, so far as material, substantially met and denied by the answer and the affidavits in support of it. The allegation in the complaint that the defendant built its pipe line across the plaintiff’s mining claim without authority is met by the answer, which alleges that permission was granted by the superintendent of the plaintiff company to lay said pipe line, and that the plaintiff afterwards tore said pipe line up, whereupon said defendant replaced it, and maintained it by guarding it. The complaint leaves in doubt what quantity of water the plaintiff appropriated, or what quantity it is entitled to use; as against the defendant and other appropriators; and it does not clearly appear from it that defendant had not acquired and did not OAvn the water referred to1 in the complaint, as the wmter of prior appropriators, which plaintiff did not appropriate, and no definite or certain quantity of water from the lake is alleged to belong to the plaintiff. Nor does it appear that any written notice of its appropriation of the water was ever posted or recorded. The order appealed from, restraining the defendant from taking water, “* * * except that the said defendant, during the irrigating season of each year, is allowed and permitted to take from the waters of said Shadow lake an amount of water equal to the amount heretofore used by the grantors of said defendant, and reasonably necessary for irrigating certain lands, formerly owned by one Sullivan and his grantors, described in the proofs in this action,” is quite indefinite and uncertain, when taken in connection with the uncertain allegations in the complaint as to the quantity of water appropriated by the plaintiff and other appropriators. — 65 — Smith v. Phillips, 6 Utah, 376. We do not consider it necessary at tliis time to review in detail the conflicting testimony presented by ex parte affidavits on this hearing; nor shall we undertake to lay down any rule of law governing the case, beyond the order we make. It is apparent that this court cannot, on the present showing, safely determine the rights of these parties, upon the pleadings and conflicting testimony presented. That determination can only be reached upon a trial, where the witnesses can be heard and examined in a way to sift their candor, recollections, and truthfulness. The main issue to be determined is whether the defendant or the plaintiff owns these mines, and has the right to use the water flowing from the Thayne and Jeanette tunnel into Thayne’s or Shadow lake. From the pleadings and testimony, it is plain that the respective rights of these parties are uncertain and indefinite,- — so much so that the right of neither party can safely be determined from the uncertain and conflicting testimony presented upon ex parte affidavits. When this is the case, and it appears, as it does in this case, that continuing the injunction until the hearing will work great injury to one of the parties, without corresponding benefit to the other, then the injunction should not continue, when adequate protection to the parties- can be had without it. McGregor v. Silver King Min. Co., 45 Pac. 1091; Swift v. Jenks, 19 Fed. 643. Concerning the effect of the order now made, so far as it operates to allow the defendant’s pipe line to lie undisturbed for a portion of its length through certain mining claims of the plaintiff, alleged to be unused for any purpose, and of no value, we may say further that, as appears now, under the pleadings, the defendant can have no legal right to occupy the plaintiff’s property with its — 66 — pipe line, noiynterfere with tbe plaintiff’s right of dominion over it, — rocky, barren, vacant, though it may be,— unless its assertion of a license so to do is substantiated. If the license is proven, many authorities sustain the right claimed. Campbell v. Railway Co., 110 Ind. 490; Russell v. Hubbard, 59 Ill. 335; Williams v. Flood, 63 Mich. 487; Rhodes v. Otis, 33 Ala. 578; Rerick v. Kern, 14 Serg. & R. 267; 13 Am. & Eng. Enc. Law, 551; Railroad v. Mitchell, 69 Ga. 114; Railroad v. McLanahan, 59 Pa. St. 23; Wilson v. Chalfant, 15 Ohio 248; Clark v. Glidden, 60 Vt. 702; Gibson v. Association, 33 Mo. App. 177-180; House v. Montgomery, 19 Mo. App. 170; Baker v. Railroad Co., 57 Mo. 265; Cook v. Pridgen, 45 Ga. 331; Stephens v. Benson, 19 Ind. 367; Ang. Water Courses, § 318. As this matter is of minor importance, — the injury caused by such occupancy, in any event, being merely nominal, and susceptible of full compensation in damages, — we think all questions concerning the acts alleged to constitute a license to the defendant, the authority of any particular officer of the plaintiff company to grant it, if it shall finally appear that any permission in fact was purported to be granted, and all contentions as to the legal effect of such acts, may well be remanded to the district court for fuller investigation; and we see no urgent reason for disturbing the condition of affairs as to this point, any more than any other. The status quo established by the court below has existed for 13 months, and an early trial on its merits is entirely practicable; and the order we shall make, in effect, leaves all interests in precisely the same condition as during that period, and as left by the court below, pending the appeal, in the order which granted the injunction, and at the same time prescribed the conditions upon which the appeal should be taken. Under these circumstances, we are of the opin — 67 — ion, and. therefore order,that the temporary order appealed from be, and the same is hereby set aside, upon the condition and when the defendant herein shall cause to be executed on its behalf, and filed with the clerk of the district court, a good and sufficient bond, in the penal sum of $25,000, to be approved by the clerk of the district court, conditioned that the defendant will pay all damages which the said plaintiff may sustain by, through, or from the laying or being of the pipe line or pipe lines through and across the lands of plaintiff, if it be finally determined that its construction was, or maintenance is, 'wrongful, and the diversion of the water through said pipe and pipe line, and all damages which the plaintiff may recover in this suit against the defendant for and upon account of the alleged trespass and diversion of the water of said Shadow lake, and other matters and wrongs alleged in the complaint, if the plaintiff’s contention as to such matters, or any of them, is finally sustained. And it is further ordered that in the meantime, 'and pending the final hearing of this suit, or until the further order of the district court, or the judge thereof, the plaintiff and defendant herein observe and preserve the status ■ of the properties described in the pleadings, so far as the pipe lines of the respective parties are involved, as it existed at the commencement of this suit, and that the costs of this proceeding shall abide the final result of the case. Ritchie, District Judge, concurs.