Klein v. Davis
| Decision Date | 25 July 1891 |
| Citation | 27 P. 511,11 Mont. 155 |
| Parties | KLEIN et al. v. DAVIS et al. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; HORACE R. BUCK Judge.
Action by Henry Klein and Elizabeth Constants against Joseph Davis and others for damages and for an injunction. Temporary injunction dissolved. Plaintiffs appeal. Affirmed.
On the complaint filed, the plaintiffs obtained from the judge of the district court a temporary restraining order. The defendants moved to discharge the order, on affidavits by them filed, and on the complaint. The order was discharged from which plaintiffs appeal to this court. It appears from the complaint that the plaintiffs are the owners of certain premises lying in a gulch, which, for convenience of designation, will be called the "Dumping Ground." It is described by metes and bounds. That about April 15 1891, defendants entered upon said ground, and commenced to excavate and tear up the soil, and wash out the gold therein contained, and convert the same to their own use, and proceeded to tear out a retaining dam of plaintiffs, and to run down debris and mining tailings upon said ground, (the dumping ground so above designated,) to the damage of plaintiffs in $2,000; and have extracted gold-dust therefrom to the value of $3,000, the property of plaintiffs. The prayer is for damages and injunction. Upon this complaint alone application was made to the district judge for a temporary restraining order, which was granted. On the motion to dissolve the order, the defendants filed affidavits. These affidavits fully deny that defendants have torn out any retaining dam of plaintiffs; deny that defendants have taken any of the gold in the ground or converted the same to their own use; and, in fact, deny all the equities set up by plaintiffs, except in the matter more fully set out below. The judge of the district court, at the request of the parties, and accompanied by a representative of each side of the litigation, went upon the ground, and made a personal examination of the same in the presence of such representatives. It further appears from the affidavits of defendants, and we state only that which is fully conceded by all parties, and omit all in regard to which there is any controversy, that the defendants own another piece of ground south of the dumping ground, and up the gulch therefrom, and adjoining the same. This latter piece we will designate as the "Mining Ground." The title to the mining ground and the easement in the dumping ground (below described) came to defendants by mesne conveyances from the same source. The mining ground was described in the first conveyance as "the following described placer mining claim situated," etc.; describing it by metes and bounds. From the same source of title came to the defendants an easement on the dumping ground. That easement is described as "a right of dumping tailings from the above described ground [the mining ground] upon that portion of said lot 74, [describing the ground, which we designate as the "dumping ground;"] the said parties of the first part covenanting and agreeing not to interfere with the said party of the second part in his exclusive right of dumping tailings," etc. This description of the easement is that contained in the first deed in the chain of title which ends in the defendants. Plaintiffs claim that the easement purports to be enlarged in one of the subsequent mesne conveyances. But that will not be noticed. We will take the description of the easement as originally granted, in regard to which there is no controversy that it came to defendants. It is also shown by defendants' affidavits that they and their predecessors had...
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