Heinze v. Boston & M. Consol. Copper & Silver Min. Co.
| Decision Date | 13 June 1904 |
| Parties | HEINZE et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.
Suit by F. Augustus Heinze and another against the Boston & Montana Consolidated Copper & Silver Mining Company. From an order denying an application to modify an order directed by the Supreme Court (67 P. 1134) to be made, plaintiff appeal. Affirmed.
John J McHatton and James M. Denny, for appellants.
A. J Shoers, C. F. Kelley, and Forbis & Evans, for respondent.
This cause was heretofore before this court on appeal by the defendant from an order granting an injunction pendente lite. Upon consideration of the facts exhibited in the record, the order of the district court was modified. 26 Mont. 265, 67 P 1134. Afterward an application was made to the district court to extend the scope of the order so as to include ore bodies expressly excluded from its operation by the order of this court, it being alleged that subsequent developments made in the disputed territory demonstrated that these ore bodies belong to a vein having its apex in plaintiffs ground. Charges were also made that the defendant, though enjoined from mining within plaintiffs' boundaries and removing ore therefrom, burnt powder and other material in its own workings adjacent to the place where plaintiffs' operations are carried on, for the purpose of obstructing the plaintiff's by producing illness in their employés and rendering it dangerous for them to remain in the vicinity, and that the smoke so created entered into the workings of plaintiffs and produced the intended effect. The district court denied the application. The plaintiffs appealed.
The situation of the property involved, and the controversy with reference to it, is illustrated by the following diagram:
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The legal title to an undivided six-eighths interest in the Minnie Healy lode claim is admitted to be in the plaintiffs. The claims to the north, the Piccolo and Gambetta, belong to the defendant. The contention of plaintiffs is that the apex of the discovery vein in the Minnie Healy is found near the east boundary of the claim, at the discovery shaft, and passes through the claim from the east to the west nearly parallel with the south boundary line of the Piccolo, and crosses the west end line of the claim immediately west of the west shaft; that it dips to the north at an angle of about 70~; and that the defendant is trespassing upon the exterior portions of it beneath the surface of the Piccolo and Gambetta claims. The particular portion of the workings involved here is indicated by the irregular shaded figure near the southwest corner of the Gambetta, and consists of large bodies of ore on the eighth and lower levels of the defendant's workings down to the twelfth. The defendant is engaged in stoping and removing this ore. The contention of the defendant is that these ore bodies are a portion of the Leonard vein, having its apex in the defendant's ground to the north. Upon the former hearing the same contention was made, and this court, upon the evidence adduced, concluded that it did not tend to show that the plaintiffs had any ground for their contention. Accordingly the district court was directed to modify its order so as to exclude these ore bodies from its operation. This it was directed to do by limiting the scope of the order to the workings south "of a plane descending vertically into the earth on a line parallel with the south side line of the Piccolo lode claim, and passing through the point at which the north side line of the Gambetta lode claim intersects the third or 300-foot level south of the Leonard shaft." The line of this plane is indicated by the letters E. B. The workings where the nuisance is alleged to have been committed are in the Minnie Healy ground, and are connected with the plaintiffs' workings by a crosscut extending south from the point F. It is charged that a fire was built in this crosscut near the point F, and that the smoke created by...
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