Heinze v. Butte & B. Consol. Min. Co.

• Citation: 129 F. 274
• Decision Date: 04 March 1904
• Docket Number: 1,033.
• Parties: HEINZE et al. v. BUTTE & B. CONSOL. MIN. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

129 F. 274

HEINZE et al. v. BUTTE & B. CONSOL. MIN. CO.

No. 1,033.

United States Court of Appeals, Ninth Circuit.

March 4, 1904

This is a writ of error, directed to the Circuit Court for the District of Montana, to review an order of that court adjudging F. Augustus Heinze Josiah H. Trerise, and Alfred Frank guilty of contempt of court, in violating an order of the court permitting the inspection and survey of certain premises mentioned and described in the order.

On May 17, 1898, the defendant in error filed a bill in equity in the Circuit Court for the District of Montana against the Montana Ore Purchasing Company, Chili Gold Mining Company John MacGinnis, Edward L. Whitmore, and Carlos Warfield, as defendants, to enjoin and restrain the defendants from extracting and removing certain ores and minerals from out of the Michael Devitt claim, of which complainant claimed to be the owner. The suit was ancillary to an action at law brought by the same complainant, as plaintiff, against the same parties, as defendants, to recover damages for the same trespasses. Upon the bill, process was issued, and the defendants appeared and answered. The Montana Ore Purchasing Company, in its answer, justified the trespasses charged in the bill of complaint by virtue of its claim of ownership of the Rarus and Johnstown lode claims, lying northerly of and adjacent to the Michael Devitt claim. It was alleged that these claims were patented by the United States; that they had parallel end lines; that certain veins or lodes which had their tops or apexes within the said Rarus and Johnstown lode claims extended on their strike through said lode claims nearly parallel to the side lines of said claims, departed through the end lines thereof; that these veins or lodes on their downward course or dip so far departed from a perpendicular as to pass beyond the vertical side lines of said lodes or claims, and to enter the ground described in the complaint as the Michael Devitt lode claim; that the Montana Ore Purchasing Company was the owner of said veins or lodes which had their tops or apexes within the Rarus and Johnstown claims, and all ores, minerals, and metals therein contained, throughout their entire depth; that any entry which had been made by the defendant or its lessee, the Chili Gold Mining Company, within the vertical side lines of the Michael Devitt claim mentioned in the complaint, had been upon such veins or lodes, and that any ores, minerals, or metals which had been extracted from within said vertical lines had been taken and extracted from said vein or lode and that the same was the property of the defendant or its lessee. The answer of the defendant the Chili Gold Mining Company pleaded substantially the same justification, under the lease from the Montana Ore Purchasing Company. The answer of the defendants MacGinnis, Whitmore, and Warfield justified as officers or agents of the Chili Gold Mining Company.

Upon the bill an injunction pendente lite was issued in accordance with the prayer of the bill, and served upon F. Augustus Heinze, as president of the Montana Ore Purchasing Company Edward L. Whitmore, a trustee and general manager of the Chili Gold Mining Company, and upon each of the other defendants named in the bill of complaint. This injunction is still in force.

On October 1, 1903, the complainant in the action presented a petition to the Circuit Court, showing that the defendants had constructed certain shafts upon the Rarus and Johnstown claims, and from said shafts had made a large number of underground workings, extending through the said Johnstown and Rarus claims into and beneath the surface of the Michael Devitt claim, and also had extended and made a large number of workings from the said shafts south into the claim called the 'Pennsylvania Claim,' which joins the said Michael Devitt claim on the west, and from the said Pennsylvania claim into and beneath the surface of the Michael Devitt claim; that, in order that the complainant might be prepared to prove its contention in the case, and prove that it was the owner of the ore bodies in controversy, and also prove a violation of the injunction by the defendants, it was necessary that the complainant, by its representative, should make a survey, inspection, and examination of certain portions of the Rarus and Johnstown, claims, and underground workings therein, and underground workings made from the shaft and working of said claims, and from and through the Pennsylvania claim into and beneath the surface of the Michael Devitt claim, and all workings made from any of said claims under the surface of the Michael Devitt claim. To this petition the Montana Ore Purchasing Company filed its answer on October 13, 1903, in which it denied the several allegations contained in the petition; denied that it had possession and control of any of the shafts or portions of the Johnstown and Rarus claims lying north of the Michael Devitt claim, or extending into the Michael Devitt claim; and denied that it was necessary for the complainant to have the survey, examination, or inspection of the workings in the Rarus, Johnstown, or Pennsylvania claims for the purpose of the trial, or for any matter connected therewith.

On October 14, 1903, upon the petition and upon the motion of the complainant, an order of inspection, examination, and survey was entered in the Circuit Court, appointing certain persons as agents and representatives of the complainant during a period of 15 days, to survey, examine, and inspect the Michael Devitt, Rarus, Johnstown, and Pennsylvania lode claims, and all the underground workings and openings in said claims, so far as was necessary to enable complainant to ascertain whether the said underground workings and openings in the Rarus, Johnstown, or Pennsylvania connected with the underground workings in the Michael Devitt lode claim. It was further ordered that for the purpose of such inspection, examination, and survey, the agents and representatives of the complainant were authorized to temporarily remove or open all doors, bulkheads, or other obstructions which might be found in said premises, or any part thereof, and which might interfere with or obstruct such examination, inspection, and survey, provided that at or before the completion of such inspection, examination, and survey, the complainant should replace all such bulkheads, doors, or other obstructions so removed and leave the premises in the same condition as found, so far as practicable. The defendants were required to hoist and lower complainant's representatives through the shafts on the Rarus and Johnstown lode claims in the control of the defendants, and furnish to the representatives of the complainant ingress to egress from the said premises and the said workings at all reasonable times during the period of 15 days.

The defendants thereupon appealed from said order to this court, and petitioned this court for a writ of supersedeas. This petition was denied, the court holding that the order appealed from was in no sense final, and therefore not appealable. 126 F. 168. The defendants thereupon presented to this court a petition for a writ of certiorari to review the action of the Circuit Court in making the order of October 14, 1903. This petition was denied; the court holding that, having determined that the order was not appealable, the court had no power to issue the writ of certiorari. 126 F. 169. Thereafter another petition for writ of certiorari was filed in this court by the Johnstown Mining Company to review the same order. This petition alleged that it was not a party to the action in the Circuit Court, but, it appearing that the petitioner had acquired its title to a portion of the ground involved in the inspection order from the Montana Ore Purchasing Company during the pendency of the cause, and after the issues were joined in the same, this petition was also denied.

Pending these proceedings the order of the Circuit Court of October 14, 1903, was not enforced, and on November 3, 1903, the period for the inspection, examination, and survey mentioned in the order was extended by the court for a period of 21 days from November 4, 1903. Upon an attempt being made upon several days from November 4 to November 16, 1903, to execute and enforce the order, its execution is charged to have been impeded and obstructed by F. Augustus Heinze, Josiah H Trerise, and Alfred Frank. The charge being brought to the attention of the Circuit Court by affidavit, that court issued an order, directed to Heinze, Trerise, and Frank, to show cause why they, and each of them, should not be committed for contempt in refusing to permit the inspection, examination, and survey as directed by the court. In response to this order, the parties named appeared, and severally pleaded 'Not guilty.' The court thereupon heard testimony upon said charge, and rendered its judgment on December 19, 1903, to the effect that the persons charged, to wit, F. Augustus Heinze, Josiah H. Trerise, and Alfred Frank, were each and all guilty of contempt of court in violating, obstructing, and refusing to obey the order of the court; that the acts of contempt were committed after notice and full knowledge of the issuance of the said order. From this order a writ of error was allowed, and on the 21st day of December, 1903, a bond on the writ of error for costs in the sum of $300 was accepted and approved by the judge holding the Circuit Court, but the judge refused to take a supersedeas bond to stay the judgment of the court in the contempt proceedings. Thereupon application was made to the writer of this opinion, as a judge of the Circuit Court of Appeals, to take a supersedeas bond and direct the clerk of the Circuit Court...