Connole v. Bos. & M. Consol. Copper & Silver Min. Co.

• Decision Date: 07 March 1898
• Citation: 20 Mont. 523
• Court: Montana Supreme Court
• Parties: CONNOLE et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. et al.

20 Mont. 523

CONNOLE et al.

v.BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. et al.

Supreme Court of Montana.

March 7, 1898.

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

Action by Daniel W. Connole and others against the Boston & Montana Consolidated Copper & Silver Mining Company and another. From the granting of an injunction pendent lite, defendants appeal. Affirmed.

Wm. H. De Witt, J. F. Forbis, and Louis Marshall, for appellants.

J. J. McHatton and Robt. B. Smith, for respondents.

PIGOTT, J.

This is an appeal by defendants from an order granting an interlocutory injunction, restraining them from constructing or operating a tramway over the surface of the Snohomish lode claim, situate in Silver Bow county. It appears from the pleadings and admissions that the plaintiffs and the defendant Butte & Boston Consolidated Mining Company are tenants in common of the lode claim, plaintiffs owning an undivided one-half interest therein, and said defendant the other half; that all the acts of the defendant Boston & Montana Consolidated Copper & Silver Mining Company which are complained of were performed with the consent of its co-defendant; that defendants entered upon the claim for the purpose of constructing a tramway thereon; that the tramway, when constructed, was to be the property of the defendant Butte & Boston Consolidated Mining Company, and to be used by it for its benefit. The complaint alleges, among other things, that defendants had removed earth and rock from the surface of the claim, and had constructed ditches, and thrown up a large embankment thereon, and thereby destroyed the surface in divers places, and were constructing a tramway; that defendants are threatening to continue the trespasses, and to construct such tramway, for the purpose of hauling different kinds of material thereover; and that, unless restrained, defendants would repeat the trespasses, and plaintiffs would be obliged to bring a multiplicity of suits against them; and that, unless restrained, they would construct and operate a tramway in disregard of plaintiffs' rights, and so as to impose a great burden upon the interest of plaintiffs in the claim. The answer denies any destruction of the surface, and alleges that the surface is valuable only for rights of way, and for mining operations. Upon the hearing of the order to show cause why an injunction pendente lite should not issue, evidence was adduced tending to support the allegations of the complaint, and to the effect that the tramway in question is intended to be a permanent structure, built by throwing up an embankment, and laying ties and railroad iron thereon for the purpose of running cars over it, and that the intention of the defendants was and is to extend the tramway over the Snohomish claim, and thence northerly beyond that claim to other mines owned exclusively by the defendants, and to haul ores over the tramway from these mines to the smelter of the Butte & Boston Company; that a portion of the embankment near the shaft of the Snohomish lode is about 15 feet in height on the uphill side; that the tramway as now constructed is in part on trestles; that the tramway is an obstruction to the road now upon the Snohomish claim; that the tramway as laid out would be an injury to the claim, and would interfere with the sinking of shafts on the easterly part of the ground, and with the dump from a shaft now on the claim; that the tramway would also interfere with work necessary to be done for the ascertainment of the apex of the vein; that a tramway across a mine is always an objectionable feature, and is never permitted unless laid by the owners for their own use. It further appeared that the plaintiffs are not mining the ground, and that the defendant Butte & Boston Consolidated Mining Company, through its lessees or licensees, is mining...