McGregor v. Silver King Min. Co.

• Decision Date: 27 August 1896
• Docket Number: 620
• Court: Utah Supreme Court
• Parties: JAMES McGREGOR, RESPONDENT, v. SILVER KING MINING COMPANY, APPELLANT

45 P. 1091

14 Utah 47

JAMES McGREGOR, RESPONDENT, v. SILVER KING MINING COMPANY, APPELLANT

No. 620

Supreme Court of Utah

August 27, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. W. H. King, Judge.

Action by James McGregor against the Silver King Minging Company. From an order granting a temporary injunction, defendant appeals.

Defendant undertook to dig a trench across plaintiff's mining lands, and justified his acts under condemnation proceedings by authority of the statute approved March 10, 1892.

Reversed.

Dickson Ellis & Ellis, for appellant.

On the question of plaintiff's proper remedy appellant cited Thorn v. Sweeney, 12 Nev. 256; High on Injunctions, sec. 13, and cases cited in note 1; Swift v. Jenks, 19 F. 643; Jerome v. Ross, 7th John. Ch. side pp. 334-337.

Moyle, Zane & Costigan and Marshall & Rayle, for respondent.

There can be no question upon our right to an injunction, unless their condemnation proceedings are good. Richards v. Dower, 64 Cal. 62; Robertson v. Smith, 7 Mining Rep. 196; Mott v. Ewing, 90 Cal. 231; Moore v. Waterworks Co., 68 Cal. 146; Moore v. Massini, 32 Cal. 595; 1 High on Injunc., sec. 702; 3 Pomeroy Eq. Jurisp., sec. 1357.

The foregoing authorities show that such a trespass is always an irreparable injury, and good cause for injunction. The case of Thorn v. Sweeney, cited by defendant, is irreconcilable with the settled law on the subject.

An injunction also lies on account of the force and violence. Coeur D'Alene Co. v. Miners' Union, 51 F. 260; Ann Arbor R. R. Cases, 54 F. 40, 746, 994.

The alleged defence of condemnation proceedings raises a question which is of first impression, and of the highest importance. But it is not necessary to decide any constitutional question in this case, because the act of 1892 does not apply to condemnation proceedings by mining companies. That procedure is regulated by the act, Laws of 1890, p. 38. All the authorities are opposed to the doctrine of implied repeals, except when absolutely necessary, and the act of 1890 being a specific act, was not repealed by general words in the act of 1892. Endlich Interp. Stat. § 223, et seq.

Hence the defendant has mistaken his remedy, if the law gave him one, and his defence must fail.

MINER, J., and RITCHIE and STREET, District Judges, concur.

OPINION

PER CURIAM:

The plaintiff in this case alleges that he is the owner of certain mining claims named in the complaint; that on the 16th day of October, 1895, the defendant company entered, with a large force of men, upon the mining claims of plaintiff, dug a trench thereon for the purpose of laying a pipe line in said trench across the surface of said claims, and threatened to maintain the same, which trespass, plaintiff claims, will ripen into an easement, cause a cloud upon plaintiff's title, and a multiplicity of suits, unless enjoined; and asks a restraining order and judgment. The defendant files its answer, admitting that it entered upon the claims as aforesaid, and dug the trench and laid the pipe line across the surface of said claims, which were rocky, barren, and of no value whatever, for the purpose of maintaining the same across said land of the plaintiff; denies the damage, trespass, force, irreparable injury, and easement alleged; denies its intention to construct said pipe line across said land of the plaintiff, which lies between the defendant's water supply, in Thayne's mine and tunnel, and its mining works below, except by virtue of condemnation proceedings begun and concluded under section 2788, Comp. Laws Utah 1888, as amended, wherein damages were awarded and tendered the plaintiff, which damages he refused to accept; and alleges that it had a right to construct said pipe line, in order to carry water, which was necessary to operate its said mine, from Thayne's tunnel and mining claim, which it owned, to the defendant's mine; that said water supply was the only source of supply for water to its mine, and the same could not be operated without said water; that at, before, and since the time in question, it had owned, operated, and developed the Silver King Mines, and was then engaged in working, operating, and extracting ores therefrom, and employed over 150 men for that purpose; that defendant is, and for many months last past has been, desirous of conducting said water by means of a pipe line from said source to its said Silver King mines; that owing to the topography of the country between said Thayne mining claim, and the tunnel thereon, and the said Silver King mines, it is not practicable to construct a pipe line for the carrying of said water from said Thayne tunnel to said Silver King Mines without crossing the said mining claims of the said plaintiff; that the surface, and the whole of the surface, of said mining claims of the said plaintiff is rocky and barren, and that a trench or a pipe line across said lands would not result in any damage to said plaintiff; that the defendant, being unable to obtain the consent of said plaintiff to construct said trench and pipe line over and across said lands of said plaintiff by offering to pay full compensation to said plaintiff for said right of way for such trench and pipe line over said lands of said plaintiff, and for all injury that might be done thereto, proceeded, under the provisions of an act of the legislature aforesaid, to construct the same; that the plaintiff will suffer no irreparable or other damage by the running of said pipe line; that the defendant is solvent, and able to pay any sum plaintiff may recover as damages; and that the plaintiff has a remedy at law. Upon the hearing the court granted an interlocutory injunction enjoining the defendant from digging of said trench, and from laying a pipe line therein, and from continuing to maintain any trench or pipe line upon said McGregor consolidated group of mines. From this order this appeal is taken.

Defendant assigns as error the making of said order, and that the proofs do not establish facts which constitute any ground of equitable relief, and because all the equities of the bill were denied in the answer, and a complete defense affirmatively interposed under the statutes of Utah in relation to eminent domain. The plaintiff takes issue upon this contention, and claims that section 2788, Comp. Laws Utah 1888, as amended, under which the condemnation proceedings were had, is unconstitutional, and the condemnation sought was not for public use, and was not necessary. In this somewhat collateral proceeding, we are not disposed to discuss the constitutional question here presented, as the result must depend upon other questions. The foundation of the jurisdiction of a court of equity to issue injunctions to restrain trespasses is the probability of irreparable injury, the inadequacy of pecuniary compensation, and the prevention of a multiplicity of suits where the rights of numerous persons are involved. It is not sufficient that the complaint alleges that the injury would be irreparable, when that is the ground of equitable relief. But the plaintiff, in addition thereto, should affirmatively show by its complaint why it would be so, or allege facts which will justify that reasonable conclusion; otherwise the extraordinary remedy by injunction should not be allowed. The allegation in the complaint that the defendant may or will acquire an easement in the land proposed to be covered by the pipe line, under the circumstances in this case, is sufficiently answered by the fact that no such easement or servitude could be acquired, except by consent or acquiescence of the plaintiff, and in any event forms no basis for injunctive relief pending the final hearing. Washb. Easem. (4th Ed.) §§ 86, 110, 111; Thorn v. Sweeney, 12 Nev. 251. And the digging of a trench and pipe line across plaintiff's lots, which are alleged to be rocky, barren, vacant, and comparatively valueless, is not such an irreparable injury as to justify this extraordinary remedy by injunction, when taken in connection with all the other facts in the case. Ordinarily, this remedy by injunction will not be exercised when the right of the complainant is doubtful, and has not been settled at law. Even when it has been...