Hickey v. Parrot Silver & Copper Co.

• Citation: 25 Mont. 164
• Court: Montana Supreme Court
• Decision Date: 23 March 1901
• Parties: HICKEY et al. v. PARROT SILVER & COPPER CO.

25 Mont. 164

HICKEY et al.
v.
PARROT SILVER & COPPER CO.

Supreme Court of Montana.

March 23, 1901.

Appeal from district court, Silverbow county; William Clancy, Judge.

Action by Michael Hickey and others against the Parrot Silver & Copper Company. From an order appointing a receiver of certain property claimed by both parties, defendant appeals. Reversed.

Wm. Scallon, T. J. Walsh, and J. K. Macdonald, for appellant.

McHatton & Cotter, for respondents.

PIGOTT, J.

This is an appeal by the defendant from an order of the district court of Silverbow county made on the 16th day of May, 1900, appointing one McLaughlin receiver of so much of the Nipper lode-mining claim as lies west of a plane drawn through a point on the north side line of that claim 205 feet northwesterly from the southeast corner of the Little Mina lode-mining claim, and parallel with the vertical planes of the end lines thereof, together with all the veins and ore bodies belonging to that part of the Nipper, including all extralateral rights, and authorizing and directing him to work and mine such part, and cause a reduction of the ores by him extracted therefrom. The appointment was made on the petition of Arthur P. Heinze, one of the plaintiffs, and after the issues were framed in the action. The state of the pleadings at the time the petition was filed was this: The complaint stated that the plaintiffs, other than the Heinzes, were the owners of thirty-one undivided thirty-sixths of the Nipper lode-mining claim; that they had leased to F. Augustus Heinze their interest, and had agreed to sell it to him upon the fulfilling of certain conditions, and that he was entitled meanwhile to mine the property; that F. Augustus Heinze assigned or sublet to Arthur P. Heinze, who at the time the complaint was filed was and for a long time has been in and entitled to the possession of the interest mentioned; that the defendant had wrongfully entered into the Nipper lode claim by means of a shaft and underground workings, and had mined and carried away ores therein contained, and was then so engaged, and threatened to, and, unless restrained by the court, would, from day to day, continue to enter upon the claim, and mine, extract, and convert them to its own use; that the claim is valuable almost entirely for the ores of copper, gold, and silver which it contains; that the plaintiffs have no means of knowing the amount and value of the ores which had already been extracted by the defendant, and would be unable to ascertain the amount and value which the defendant would take away in the future unless enjoined. The relief prayed for was an injunction against the threatened trespasses. By answer the defendant admitted that it had entered within the vertical planes of the boundaries of the Nipper lode-mining claim, but denied that it had removed or threatened to remove any ore therefrom, alleging that its operations had been confined to developing the vein so as to determine the true apex thereof. It denied the assignment or subletting to Arthur P. Heinze, and for an affirmative defense alleged ownership of the Little Mina lode claim, adjoining the Nipper on the north, and averred that it was engaged in the prosecution of development work on the vein, the apex of which is within the Little Mina lode claim; that the vein on its dip so far departs from the perpendicular as to pass beyond the vertical planes of the south side line of the Little Mina lode claim and to enter the Nipper claim. It alleged that it had not entered within the Nipper lode claim upon any vein which it had not followed downward on the dip from its apex within the Little Mina. These allegations were put in issue by the replication filed September 20, 1899, which seeks a decree quieting title in plaintiffs.

On the 5th day of March, 1900, the plaintiff Arthur P. Heinze filed his petition for the appointment of a receiver, setting forth, in substance, these alleged facts:

Under a certain lease, the petitioner is in possession of an undivided 31/36 of the Nipper lode-mining claim, and is engaged in mining the ores from the veins within the claim, and is entitled to remain in possession and mine and extract the ores until the 12th day of July, 1901, on which day his lease will expire. The defendant, asserting ownership of the Little Mina, lying to the north of the Nipper, has commenced an action against F. Augustus Heinze and the Montana Ore-Purchasing Company, alleging that there is a vein which has its apex in the Little Mina claim, and which in its downward course departs into the Nipper claim, and asserts that the part of the Nipper vein lying between vertical planes, one drawn downward through the westerly line of the Little Mina, and one through a point 205 feet northwesterly from the southeast corner of the claim, measured along its south line, and extended in their own direction to an intersection with the Nipper vein within the Nipper claim, belongs to the defendant, and is a portion of the vein which has it apex in the Little Mina claim. The assertions so made by the defendant are made in bad faith and fraudulently, and in collusion with the Boston & Montana Consolidated Copper & Silver Mining Company, the Butte & Boston Consolidated Mining Company, the Anaconda Copper-Mining Company, the Colorado Smelting & Mining Company, the Washoe Copper Company, the Amalgamated Copper Company, the Standard Oil Company, Lewisohn Bros., Marcus Daly, H. H. Rodgers, and others, and as a part of the conspiracy entered into by the defendant and the corporations and persons mentioned, for the purpose of preventing the owners of the 31/36 interest in the Nipper lode claim and the petitioner from mining the ores therefrom, and for the purpose and with the intent, by means of false testimony and affidavits, to obtain an injunction preventing the mining of the ores, with the intention and for the purpose and by the means so alleged the defendant is threatening to obtain, and “very likely” will obtain, an injunction against the petitioner, enjoining him from mining the ores from the Nipper claim and vein, “by reason of the said matters and the means which it and its co-conspirators will employ, and by reason of the fact that it is quite usual for the courts to grant an injunction where one party claims that another is trespassing upon a vein belonging to it, and the testimony offered on the hearing of an application for an injunction is contradictory or conflicting, and that said Parrot Silver & Copper Mining Company is now threatening to, and will, as plaintiff is informed and believes, within a short time institute an action or proceeding against him for the purpose of preventing him, by means of a restrainingorder or injunction, from mining or taking away any of the ores from said portion of said Nipper vein lying between the planes aforesaid, and that by reason of the conspiracy existing between said Parrot Silver & Copper Company and the other companies and persons hereinafter mentioned, and by reason of the fact that it and they will procure witnesses to wrongfully, fraudulently, and falsely testify that in their opinion the said Nipper vein has its apex for a portion of its length in the Little Mina claim, and by reason of the fact that the location and ownership of the said Nipper vein cannot be finally determined in such a proceeding, and the court may feel obliged, under its rules of practice, to enjoin this plaintiff from mining or carrying away any of the ores therefrom,” if such action be brought, as petitioner is informed and believes it will, it cannot be tried for several years, in consequence of which the title of the owners of the 31/36 in the Nipper lode claim to the vein and ore will be brought into and held in dispute by the defendant, and petitioner will be enjoined from mining or carrying away any of the ores during the term of his lease, whereby the lease will be rendered valueless to him. The claims and pretenses of the defendant to the vein and ores are without foundation in right or equity, and are entirely fraudulent, “and are put forth and will be maintained, not for the purpose of protecting any right to said property, but for the purpose of irreparably injuring this plaintiff, and destroying his...