Harrigan v. Lynch
| Decision Date | 04 April 1898 |
| Citation | 52 P. 642,21 Mont. 36 |
| Parties | HARRIGAN et al. v. LYNCH. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; Henry N. Blake Judge.
Action by Patrick J. Harrigan and another against Michael Lynch. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed.
Toole & Wallace, for appellant.
T. J Walsh, for respondents.
By this appeal the court has again before it for interpretation the provisions of section 592 of the Code of Civil Procedure. The parties are tenants in common of the M. L. lode claim situated in Lewis and Clarke county. Plaintiffs own an undivided one-fourth, and the defendant an undivided one-third, interest in the claim. The complaint alleges that the defendant, without the consent of the plaintiffs, had extracted gold ore from the claim, which he appropriated to his own use, and was continuing and threatening to continue to extract such ore and dispose of the same, and to convert it to his own use, all to the damage of the property; that defendant assumed and exercised exclusive ownership over the common property; that defendant was conducting operations in a wasteful manner; and that he refused to render an account to plaintiffs. The relief demanded is an injunction restraining defendant from committing the acts complained of, and an accounting. The answer admits the extraction of the ore, and defendant's intention to continue such extraction, but denies that his operation of the claim was without plaintiffs' consent, or that the claim was injured by the acts of the defendant, and alleges, in effect, that all the proceeds of the ores taken out by him were used in defraying the expenses of developing the claim and hauling and milling the ore, and sets up that his operations were conducted in a skillful manner; that the mine has been developed and benefited by the operations mentioned in the complaint. Upon the trial it appeared, among other things, that defendant had taken out and reduced 828 tons of ore, of the probable gross value of $3.25 a ton, and that the cost of hoisting and milling was approximately $4.01 per ton; that there was no profit, in money, derived from his operations; that defendant was working the claim without the consent of plaintiffs, had failed to render an account when they asked for it, and that he was proceeding with the work in all respects as if he were sole owner. Defendant offered to show that the work performed by him enhanced the value of the property, and that he was working in a shaft which had been sunk by him in 1885 with the consent of the then owners; but, on objection, the evidence offered was excluded as immaterial. The court found that the defendant, since April, 1896, had taken away from the claim 828 tons of ore, of the value of $3 per ton, and had disposed of the same, and converted the proceeds to his own use, and had thereby lessened in value and injured the common property, and threatened to continue to take away and dispose of the ore, but that he had applied all the proceeds of the ores milled or disposed of by him in payment of legitimate expenses incurred in the necessary extraction of the ore; that in his operations he had developed the claim in a miner-like manner; that plaintiffs did not consent to the acts of defendant, but might, with the exercise of slight diligence, have ascertained that he was sinking a shaft upon the property; that defendant performed the labor in good faith at his own expense, for the purpose of developing the claim; and that the defendant was exercising exclusive ownership over the part of the claim upon which he performed work. From these findings the court drew the conclusion of law that, within the meaning of section 592 of the Code of Civil Procedure, defendant had taken away ore from the claim, and thereby injured it, and lessened its value, without the consent of the plaintiffs. Judgment was entered enjoining defendant from extracting ore from the claim, or reducing or otherwise disposing of any ore extracted from it. From this judgment, and from an order refusing a new trial, defendant appeals.
1. Plaintiffs contend that the question whether the evidence is sufficient to sustain the findings is not before the court, for the reason that the notice of intention to move for a new trial, while in the transcript, is not included in the statement on such motion or in a bill of exception. This court has many times held such notice of intention to be an indispensable part of the record on appeal from the order granting or denying a new trial (Gum v. Murray, 6 Mont. 10, 9 P. 447; Morse v. Boyde, 11 Mont. 248, 28 P. 260; Grinnell v. Davis, 20 Mont. 222, 50 P. 556); but in none of the cases did the record disclose facts from which a waiver of the objection to a want of notice would be inferred. In the case at bar, however, it is clearly shown by the record itself that plaintiffs offered amendments to the proposed statement served by defendant, without then or at any time reserving objection to the want of notice of intention to move for a new trial; and this, we think, amounted to a waiver of notice. Williams v. Gregory, 9 Cal. 76, cited with approval in Payne v. Davis, 2 Mont. 384; Frost v. Meetz, 52 Cal. 670; Godchaux v. Mulford, 26 Cal. 316; Brundage v. Adams, 41 Cal. 619; Society v. Moore, 68 Cal. 158, 8 P. 824; Christy v. Waterworks, 68 Cal. 73, 8 P. 849; Hobbs v. Duff, 43 Cal. 485. The view stated renders unnecessary the consideration of the question whether a notice of intention to move for a new trial which is included in the transcript, but is not embraced in the statement or in a bill of exceptions, is part of the record on appeal; and the question is reserved.
2. Section 592 of the Code of Civil Procedure provides: "If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist." The findings of the court are responsive to the issues, and are sufficient to bring the case within the statute quoted, and to support the...
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