Butte & B. Consol. Min. Co. v. Montana Ore-Purchasing Co.

• Decision Date: 21 November 1898
• Citation: 55 P. 112,21 Mont. 539
• Parties: BUTTE & BOSTON CONSOL. MIN. CO. v. MONTANA ORE-PURCHASING CO.
• Court: Montana Supreme Court

55 P. 112

21 Mont. 539

BUTTE & BOSTON CONSOL. MIN. CO. v. MONTANA ORE-PURCHASING CO.

Supreme Court of Montana

November 21, 1898

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

Action by the Butte & Boston Consolidated Mining Company against the Montana Ore Purchasing Company to enjoin the maintenance of a tramway. From an order dissolving a temporary restraining order, and refusing an injunction pendente lite, plaintiff appeals. Reversed.

Wm. H De Witt, John F. Forbes, and Louis Marshall, for appellant.

Clayberg & Corbett and J. J. McHatton, for respondent.

PIGOTT J.

This appeal is from an order made April 6, 1898, dissolving a temporary restraining order theretofore granted on the application of the plaintiff, and refusing the plaintiff an injunction pendente lite against the maintenance by the defendant of a tramway.

1. Plaintiff and defendant are owners in common of the Snohomish lode mining claim. Defendant has constructed a tramway over a portion of the claim, and uses it for the purpose of conveying ores from the Rarus Mine to a bin built by defendant on the common property. The Rarus Mine is owned by the defendant, as are also the tramway and ore bin. This tramway and bin are used by the defendant alone, and cannot be utilized by plaintiff in its mining operations. In the event plaintiff desired to erect works, it could not do so on that part of the claim over which the tramway runs. Plaintiff insists that the tramway and bin were placed upon the common property wrongfully, and without its consent or the consent of its predecessor in interest; while the defendant pleads that the structures were erected with the consent of the grantor of plaintiff. To sustain the allegation that the tramway and bin were built upon the property with the consent of the plaintiff, defendant introduced in evidence certain correspondence between one Palmer, who was general manager of the Butte & Boston Mining Company, the immediate grantor of the plaintiff, and the defendant. If Palmer was clothed with the power to confer upon the defendant a right of way for the tramway, the question would be presented as to whether or not the route agreed upon was followed by defendant in laying the tramway. We find it unnecessary, however, to determine the latter question, since we are of the opinion that Palmer was not, in virtue of his office as general manager, authorized to grant for his company either an easement or a license. In the late case of Great Falls Water Works Co. v. Great Northern Ry. Co., 21 Mont. -- 54 P. 963, we declined to express an opinion upon the question now presented. But we think there can be only one answer made: Corporations, like natural persons, are bound only by the acts and contracts of their agents done and made within the scope of their authority. There is no presumption that the general manager of a corporation has power to convey its lands, or to grant an easement or give a license therein. See Walrath v Mining Co. (May 23, 1898) 18 S.Ct. 609; Kipp v. Coenan, 55 Iowa, 63, 7 N.W. 417; Stow v. Wyse, 7 Conn. 214; Leggett v. Banking Co., 1 N. J. Eq. 541. The defense so interposed rests upon the acts of the general manager of the corporation which conveyed the land to plaintiff; and the burden was upon defendant to show that he had the authority to grant the right of way over, or to permit a license to be exercised on, the property. The failure of defendant to prove that such power had been lodged in the general manager makes further discussion of this defense unnecessary.

2. Inspection of the record discloses that in all substantial matters the defendant in this case is in the attitude and position of the defendants in Connole v. Mining Co., 20 Mont. 523, 52 P. 263; and the facts shown by the record before us so closely resemble those presented in the case cited as to demand the application of the same rules. We held in the Connole Case that the court below did not abuse its discretion in granting a temporary injunction upon facts similar to those presented in the case at bar, and that under section 592 of the Code of Civil Procedure, the acts of the defendants constituted an assumption and exercise of exclusive ownership over a portion of the property owned in common by them and the plaintiff, and that injunction, being an appropriate remedy as against a stranger, was properly...