Appeal
from district court, Silver Bow county; JOHN J. McHATTON
Judge.
BLAKE
C.J.
The
Blue Bird Mining Company, Limited, is a corporation organized
under the laws of the territory of Montana, and owns the Blue
Bird lode mining claim, which is situated in the county of
Silver Bow. Murray et al. own or possess, as lessees, the
Darling, Little Darling, and Lena K. lode mining claims
which are south of, and, viewed as a whole, adjoin, the
property of the company. It is conceded that the company
asserting the right to follow its vein in the dip and beyond
the side lines of the Blue Bird lode mining claim as located,
has been working at places which are within the limits of the
claims of Murray et al. It is maintained by Murray et al.
that this under-ground development is not upon the property
of the company, and the parties have resorted to the courts
for legal and equitable relief. At the commencement of the
action of the company against Murray et al., the court
granted an injunction enjoining Murray et al. from working
upon the Blue Bird lode mining claim, and afterwards, upon a
hearing, ordered that the same be continued in force pending
the litigation. A motion was then filed by Murray et al., and
supported by affidavits, applying for permission to prosecute
certain work, and, after a hearing, an order was made, March
29, 1890, which is before us for review. The application
alleges that "it is necessary to the preparation of this
case for trial, and to the ascertainment of the exact rights
of the parties, and to the continuity and identity of the
veins in question in this cause, or the absence thereof, to
prosecute development work, and particularly work hereinafter
mentioned; and *** an injunction has heretofore been issued
in this case against the defendants, and *** the plaintiff
has refused its consent to the prosecution of the work
hereinafter mentioned." Accurate descriptions are given
of the cross-cuts, shafts, winzes, logging, and levels, which
are to be the subjects of further labor, and the object
thereof is distinctly pointed out.
While
the general nature of this development has been stated in the
application, some definite specifications are cited to show
the reasons for this order: " Fourth. To run
east on the level known as the 'two-hundred foot
level' of the Little Darling, to the east end line of the
claim, through the openings made by the Blue Bird Company,
and particularly the floor or drift known as the 'oley
Drift;' thus named after the man who last worked there
for the Blue Bird Company. [The intention is here to extend
said drift beyond the point where the Blue Bird Company left
off, in order to determine whether or not any vein shows
beyond said point.] *** Sixth. To open the logging
which now closes up the connection made by the Blue Bird
Company between levels Nos. 4 and 5, and which connection is
made from the winze last mentioned, and an incline from the
bottom thereof, and a raise from the five-hundred foot level.
[The being a connection or cross-cut recently made by the
Blue Bird Company, and immediately logged up by it, so that
these defendants had no opportunity to examine the same; and
the importance of which is shown in the affidavits filed in
support thereof.]"
The
conditions which are set forth in the order appealed from
should be considered: "Provided, however, that all of
the abovedescribed work shall be done by the said defendants
at their own cost; and all dirt, débris, and ores
shall be raised through their own shaft, except that, if the
plaintiff so desires, it may itself take, raise, and hold
until the final determination of this suit, any ores which
may be extracted from the vein shown on No. 4 level, or from
any vein which may be encountered north thereof, or from the
winze on No. 4. level; and except, also, that, if plaintiff
desires it, the opening of the logging in the connection
between levels No. 4 and 5 may be done by plaintiff, or under
plaintiff's supervision: provided, full liberty be
allowed defendants to examine the same: and provided,
further, that in the examination of said cross-cut connection
betweeen levels 4 and 5, and the cross-cut from NO. 4 south,
nothing more be done than is necessary for the examination
thereof, and the ascertainment of the nature of the ground,
or the formation, through which the same are run; that, if
these matters can be determined without the removal or
opening of any of the timbering, or by digging in the bottom
thereof, then it shall be done accordingly. And it is further
ordered that, for the purpose of doing the foregoing work and
inspection, the defendants, and all persons employed by them,
have a right of way through any openings, levels, and and
cross-cuts made by the Blue Bird Company within the lines of
the Little Darling claim. *** And provided, also, that the
work, and particularly the inspection, shall be done in such
a manner as not to endanger any of the present workings or
openings; and that said connection between levles 4 and 5,
and the crosscut south from the Blue Bird shaft, shall be
left or replaced in the same condition that the same now are
or may be at the time immediately prior to the inspection;
and it is further provided that any and all work done by the
defendants by virtue hereof must be done in good workman-like
and mine fashion, and timbered in best mining fashion; and
that these defendants, or such thereof as shall cause said
work to be done, shall be in no manner relieved from
liability for the doing of said work, or the manner in which
it is done, by this order, but that the same liability shall
attach to them on account of such work as would attach if
done without this order, in case the ground or veins in which
the same may be done be found or determined to belong to the
plaintiff; and it is also further provided that, in order to
prevent...
