Gilpin v. Sierra Nevada Consolidated Mining Company

• Decision Date: 01 March 1890
• Citation: 2 Idaho 696,23 P. 547
• Parties: GILPIN v. SIERRA NEVADA CONSOLIDATED MINING COMPANY
• Court: Idaho Supreme Court

23 P. 547

2 Idaho 696

GILPIN v. SIERRA NEVADA CONSOLIDATED MINING COMPANY

Supreme Court of Idaho

March 1, 1890

MINE OWNERS' RIGHTS-EQUITY-POWER OF COURT-INJUNCTION-NONJOINDER OF PARTIES.-Nonjoinder of parties plaintiff is not properly in issue on an application for an injunction against the acts of a stranger to the property threatened with injury.

WHEN PARTY ENTITLED TO INJUNCTION.-Where a party makes a prima facie case that he is in possession of a claim, and his surface location shows a vein the apex of which is within the lines of the claim, and carries valuable ore, he is entitled to an injunction restraining other parties owning contiguous claims from extracting ore from a vein within his lines until the matter can be determined on its merits.

CLAIM OWNER'S RIGHTS-IRREPARABLE INJURY-WASTE.-Where a party alleges that acts are being committed and threatened to be continued in violation of his rights, which will cause waste great or irreparable injury, he is entitled to a writ restraining the commission of such acts, particularly where the subject matter of the litigation is a mine, and the act complained of is the removal of the ore therefrom, by underground workings, which would render the mine worthless.

BOUNDARY LINES OF MINING CLAIM.-Section 2322 of the Revised Statutes of the United States provides, among other things, that the owner of a mining claim "shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lode or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations."

Dissenting opinion appears in 23 P. 1014.

APPEAL from District Court, Shoshone County.

No briefs found on file.

The complaint shows the plaintiff to be the owner, and entitled to the possession, of one compact piece of mining lands in the Yreka mining district, Shoshone county, Idaho territory embraced within the outer boundary lines of three contiguous mining claims, called the "Apex," the "Rambler," and the "Tip Top," all constituting the plaintiff's said mining grounds; that while the plaintiff was so in possession, on the 29th of October, 1888, the defendant, a corporation, entered upon such grounds of the plaintiff, and with force, etc., took possession, and unlawfully ejected the plaintiff, and still unlawfully withholds the same from the plaintiff, to his damage of $ 100,000; that the plaintiff's said claim is upon a mineral zone or belt containing gold, silver, and other precious metals; that previous to such ouster the plaintiff had been working and mining the three locations named as above, as one mining claim, continuously since the third day of November, 1887; that the defendant owns a mining claim adjoining on the east of these several claims of the plaintiff, so constituting one claim, the defendant's claim, being called the "Sierra Nevada"; that the western side line of the Sierra Nevada is coincident with eastern end boundary line of said Tip Top claim, and also with the eastern end line of the Apex claim, and nearly coincident with the eastern end line of the Rambler claim. The relation of the properties of the parties is shown by the following diagram:

[SEE DIAGRAM IN ORIGINAL]

The plaintiff further claims, in substance, that the plaintiff's middle claim, the Apex, is upon and along said mineral zone or belt; that the mineral-bearing rock in place is a part of such zone, and crops to the surface in and upon the Apex location, the true apex of the zone or belt being within the exterior boundaries of the Apex claim; also that the zone or belt is of greater width than the Apex claim, and extends on either side of the Apex, and is covered by the Rambler and Tip Top locations. The plaintiff also claims, and the fact is admitted by the defendant both in its cross-complaint and in argument, that the defendant, prior to the commencement of this action, has been working the Sierra Nevada claim, and from the underground tunnels in the Sierra Nevada claim has extended its works and tunnels, beyond its western side line, into and upon the grounds claimed by the plaintiff, and maintains his possession thereof against the plaintiff, and has been and is extracting and carrying away ore therefrom, and is, as the plaintiff avers, preventing the plaintiff from working his mines within his own mining grounds; that such acts are waste, and irreparable damage to the plaintiff's property; to recover which property, with other purposes, this action is instituted; that the defendant is a foreign corporation, and insolvent; and prays that pending the litigation a temporary injunction be granted, etc. The allegations of the complaint are made positively, as of the plaintiff's own knowledge, and the same are verified in the same manner.

The answer is upon information and belief, and is so verified. It admits that the defendant is a foreign corporation. Except this admission, it denies every other material allegation of the complaint, and prays that the complaint be dismissed. The defendant also files his cross-bill, and prays affirmative relief; and for such purposes makes this plaintiff, Larry O'Neill, A. D. Bevin, David Le Ban, A. M. Baldwin, Edward Leonard, W. T. Malony, William Rogers, C. J. McMillen, B. F. Bates, and W. B. Heyburn, parties defendant, and avers: 1. The corporate character of the cross-complainant. 2. That on the 6th of April, 1886, the lands of the Sierra Nevada claim were public domain, and unoccupied mineral lands, and on that day were duly claimed, by parties named, as a mining claim, under that name; that said locators, with others who had become interested in the Sierra Nevada claim, on June 3, 1886, "having discovered the true strike and course of said vein," filed an amended location of said claim, as it now appears on the diagram heretofore given; that the cross-complainant became the owner of such amended location and claim on the 15th of November, 1886, and is still such owner, and in possession of the same, and has expended $ 100,000 in improvements thereon, in tunnels run in and upon said vein, cross-cuts, shafts, etc., and is still in possession of all such tunnels, etc. 3. "That while said E. M. Gilpin claims to be the owner in his own right of said Apex mining claim, as a matter of fact, each and all of the parties hereto, to wit [the other defendants in this cross-complaint named] are the owners of undivided interests therein as tenants in common with the said E. M. Gilpin," and the claim of said Gilpin to be the sole owner is untrue; wherefore said parties are joined as defendants herein in order that "their claims, together with the claim of the said E. M. Gilpin, may be fully and finally determined, adjudicated, and settled"; that said defendants "actually claim an interest unknown to the cross-complainant in and to the premises hereinbefore described, and in and to the vein thereon, which is the Sierra Nevada lode mining claim and vein"; and, that such claim may also be settled, it is necessary that all of said defendants be made parties. 4. That all of the defendants are insolvent, and are pretended owners of a mining claim described in the complaint of the plaintiff, Gilpin, as the Apex, Rambler, and Tip Top mining claims, and, as such alleged owners, have by their underground workings entered upon the Sierra Nevada claim, and by shafts, etc., have gone down and broken into the works of the cross-complainant, "made by its following its said vein, upon the dip thereof, into the ground," and threaten to take and hold possession, etc., of said workings so broken into, and are engaged in underground works with that intent. 5. That the locations of the Apex, Rambler, and Tip Top are in fact void and of no effect, because they were made, or attempted to be made, within the line of the Sierra Nevada, etc., and that, if the defendants be allowed to carry out their designs, the cross-complainant will sustain irreparable damages. 6. And prays that the defendants named, except said Gilpin, be brought in as defendants; that all such defendants be decreed to have no right to any of the ground in controversy; that pending this suit the defendants be enjoined from entering upon, etc., any of the grounds in dispute, and upon the determination of the action the injunction be made perpetual.

A large amount of evidence was taken upon the issues so made up, and upon the fifth day of February, 1890, his honor, Judge Sweet, by order, denied the injunction. From that order an appeal is taken by the plaintiff to this court.

Order denying the injunction overruled, and a temporary injunction issued.

W. B. Heyburn and W. W. Woods, for Appellant.

William H. Clagett and Albert Hagan, for Respondent.

BERRY J. BEATTY, C. J., Specially Concurring. SWEET, J., Dissenting.

OPINION

BERRY, J.

(After Stating the Facts).--There are three principal points in this case: 1. Is the plaintiff the owner of the mining grounds claimed by him, so as to be entitled to invoke the aid of this court to prevent the acts complained of? 2. Is the injury alleged of such a character as to warrant the exercise of the equity power of the court? And 3. Is such injury, in fact, threatened or being done?

As to the question of nonjoinder of parties plaintiff, that is not properly in issue on an application for an injunction against the acts of a stranger to the property threatened with injury. A party may intervene to protect by injunction his own interests, as well as the interests of his cotenants. But, if this were...