Boyd v. Desrozier

• Citation: 52 P. 53,20 Mont. 444
• Parties: BOYD v. DESROZIER et al.
• Decision Date: 14 February 1898
• Court: Montana Supreme Court

52 P. 53

20 Mont. 444

BOYD v. DESROZIER et al.

Supreme Court of Montana

February 14, 1898

Appeal from district court, Silver Bow county; William Clancy Judge.

Action by Anna L. Boyd against Austin Desrozier and others. From an order granting an injunction pendente lite, defendants appeal. Affirmed.

J. W Cotter, for appellants.

Darrow & Laiss, for respondent.

PIGOTT J.

Appeal by defendants from an order of the court below granting an injunction pendente lite. Plaintiff alleged in her complaint (filed August 10, 1897) ownership of, and right of possession to, the Blue Gulch placer mining claim, situate in Silver Bow county, the wrongful entry and taking possession by defendants about June 1, 1897, and their continued possession and mining of the same, and extraction of gold dust therefrom, and prayed for the recovery of possession of the claim, and for damages. With the complaint was filed an affidavit of the plaintiff, reiterating its allegations, and charging the insolvency of the defendants demand by her on them for the delivery of possession, and cessation of mining, and their refusal to accede to her demand, and alleging that defendants would, unless restrained, continue to work and mine the claim, the effect of which would be the washing away of the soil. Upon the complaint and affidavit the court issued a restraining order, and an order to show cause why an injunction pendente lite should not be granted. Prior to the hearing of the order to show cause, defendants filed an answer denying plaintiff's ownership and right of possession, and wrongful entry and possession by them. In the answer was incorporated a counter affidavit denying their insolvency. They alleged that plaintiff failed to perform upon the claim the annual labor required by law during the years 1893, 1894, 1895, and 1896, and had failed to resume work thereon in good faith prior to the time the defendants relocated the claim, in 1894 and 1897. They asserted title, alleging that they were in possession of 2,250 feet in length by 600 feet in width of the ground in dispute, by virtue of their locations of 1894 and 1897 upon the public domain of the United States, followed by the annual labor thereon. On the hearing of the order to show cause, August 23, 1897, the plaintiff introduced in evidence the notice of location of the Blue Gulch placer claim, made May 29, 1893, by plaintiff's predecessor in interest, and introduced evidence tending to show a valid location. Proof was also made by her that a notice in lieu of the annual labor for the year 1894 was filed on December 27th of that year. The court received also the dulyfiled affidavits of two persons, showing performance of the annual labor on the claim for 1896. There was also evidence to the effect that plaintiff caused the annual labor to be performed for the year 1895. The plaintiff testified that in the spring of 1897 she requested the defendants to vacate the ground in controversy, and also made the same demand in the August following, a few days before she commenced her suit. In behalf of defendants some evidence was elicited from defendant McRae tending to show that the Blue Gulch placer was not located as required by law, and that the annual labor had not been performed; that defendants in May, 1894, located a portion of the ground in controversy, and named it the "Perry Clance Placer"; that on August 2, 1897, certain of the defendants posted a notice of location, and staked the Last Chance placer upon part of the ground embraced within the claim of the plaintiff, but had not perfected the location when the restraining order was served. There was also some testimony tending to show that the plaintiff in 1894 saw some of the defendants working the Perry Clance claim, and that she said nothing with reference to stopping their work. When the testimony was all in, defendants requested the court that, in the event plaintiff was found entitled to a temporary injunction, defendants be permitted to perfect their location of the Last...