Miller v. Scoggin

• Decision Date: 10 February 1948
• Docket Number: 2378
• Citation: 64 Wyo. 248,189 P.2d 693
• Parties: LESLIE A. MILLER, MARGARET M. MILLER, KATHERINE M. MABEE, JOHN S. MILLER, ARTHUR H. READ, LEE W. READ, HERBERT W. READ, WINIFRED M. READ, MRS. T. J. CARROLL, BERNARD HOWELL, RAY E. LEE, D. AVERY HAGGARD, ADELAIDE B. LEE, JOHN D. MABEE, MARTHA B. HAGGARD, Plaintiffs and Respondents, v. HARRY L. SCOGGIN, Defendant and Appellant
• Court: Wyoming Supreme Court

189 P.2d 693

64 Wyo. 248

LESLIE A. MILLER, MARGARET M. MILLER, KATHERINE M. MABEE, JOHN S. MILLER, ARTHUR H. READ, LEE W. READ, HERBERT W. READ, WINIFRED M. READ, MRS. T. J. CARROLL, BERNARD HOWELL, RAY E. LEE, D. AVERY HAGGARD, ADELAIDE B. LEE, JOHN D. MABEE, MARTHA B. HAGGARD, Plaintiffs and Respondents, v. HARRY L. SCOGGIN, Defendant and Appellant

No. 2378

Supreme Court of Wyoming

February 10, 1948

APPEAL from District Court, Crook County; H. R. CHRISTMAS, Judge.

Action by Leslie A. Miller and others against Harry L. Scoggin to enjoin defendant from interfering with plaintiff or their employees in going upon placer mining claims and placing improvements on the claims and from threatening plaintiffs or their employees with bodily harm or injuries. From a judgment granting an injunction, the defendant appeals.

Affirmed.

For the defendant and appellant there was a brief and oral arguments by E. C. Raymond of Newcastle, Wyoming and James T. McGuckin of Sundance, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Injunction will not lie to take the possession of land from one person and give it to another. It is not necessary that the writ of injunction itself should deny possession to one of the contending parties and give it to another. If the writ, no matter how worded, has that effect and upon the trial such effect is shown, then the writ should not have issued. Casper Wyoming Theatres Co., et al. v. Rex Inv. Co., 37 Wyo. 357; Alaska Development Co. v. Brannan, 40 Wyo. 106.

Only damages which follow naturally and proximately from the actions themselves are recoverable. Damages created without necessity, where there is ample law to determine the question without the damages being created, cannot be recovered.

It may be stated as a broad general rule that a wrong doer is liable to the person injured in compensatory damages for all the natural and direct or proximate consequences of his wrongful act or omission, and conversely, subject to some qualifications and exceptions hereinafter stated that he is liable only for such consequences. 17 C. J. 728.

The rule with reference to the procedure to be followed is that evidence is admissible in mitigation of damages to ascertain to what extent the damages are to be attributed to such acts or omissions of the plaintiff. If he fails to use such diligence his negligence is regarded as contributing to his injury, and, furthermore, such damages as could have been so avoided are not regarded as the natural and probable result of the defendant's acts. 8 R. C. L. 444.

A demurrer to the petition may be raised for the first time in this court. Spaugh v. Peterson, 34 Wyo. 374, 376; Slaughton v. Johnson, 47 Wyo. 536, 541; County Commissioners v. Brewer, 50 Wyo. 419, 429; Grover Irrigation Company v. Lovella Ditch Company, 21 Wyo. 204.

For plaintiffs and respondents there was a brief and oral argument by Albert D. Walton of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

Courts generally have recognized the distinction between the granting of injunctions in mining cases from those in other classes of cases. It is now a common practice to grant an injunction in cases where irremidiable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction, pending legal proceedings for the determination of the legal title.

A denial of the preventive remedy by injunction, where the injuries complained of are of a character calculated to destroy the value of the land for all useful purposes, would be tantamount to a denial of all protection. So, too, where the defendant threatens to prevent the plaintiff from completing work necessary to perfect his location, or a lessor prevents a lessee from taking out gold from the leased property, and thus defeats the sole object of the lease. The right to injunctive relief in cases involving extraction of ore in a mine is well settled, particularly in the mining states and territories of the West. Lindley on Mines, 3rd Ed Vol. 3, Sec. 872, 2187.

The working of mines is something more than the common, ordinary use of real estate, and requires the use of more than ordinary remedies to protect the rights of parties entitled to the possession. 15 Amer. & Eng. Encl. Law 605; Allen v. Dunlap, 33 P. 675.

A temporary injunction usually should be granted where the questions presented are grave and injury to the moving party will be certain, substantial, and irreparable if it is denied and the final determination is in his favor, while if it is granted and the decision is unfavorable, the inconvenience and loss to the opposing party will be inconsiderable or may be adequately protected by a bond. The court will grant a preliminary injunction when it is made to appear that there is a substantial controversy between the parties and that one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case. Power to issue an injunction pendente lite is exercised, whenever necessary to subserve the ends of justice. A preliminary injunction should not issue unless from the pressure of an urgent necessity; and a preliminary injunction should not be granted except to maintain the status quo or to prevent irreparable injury. 43 C. J. S. Sec. 17 Injunctions.

The practice of the courts in mining cases should be liberal in granting injunctive relief in mining litigation in order that one party might not be placed in a worse position during the litigation. Lindley Law of Mines (2d Ed.) Sec. 872. The purpose of such injunction is to protect the rights of the parties until the final determination of the case. Safford v. Fleming, Ida. 89 P. 827.

A violation of criminal laws will not, as a general rule, be enjoined, but injunction will issue to inhibit a criminal act when that act invades civil or property rights and where there is no other adequate remedy available. 43 C. J. S. 762.

The granting or denial of a temporary injunction pending final hearing is within the sound judicial discretion of the trial court, and upon appeal, an order granting such an injunction will not be disturbed unless contrary to some rule of equity or the result of an improvident exercise of judicial discretion. Especially will the the granting of a temporary writ be upheld when the balance of injury as between the parties favors its issue. Pratt v. Stout, (C. C. A 8) 85 F. 2d. 172.

RINER Chief Justice. KIMBALL, J., and BLUME, J., concur.

OPINION

RINER, Chief Justice.

This is a companion case with No. 2379, Scoggin et al vs. Miller et al this day decided. The circumstances which brought about the litigation in that action have been set forth quite fully in the opinion in that case filed. A number of the points urged in this case have been already disposed of by what has been said in that opinion and it will accordingly be unnecessary to reexamine them further. Some repetition of the facts and circumstances related in No. 2379 and references to that opinion will perhaps be unavoidable here but that will be done as shortly as possible.

The plaintiffs and respondents herein who for convenience and brevity may be subsequently referred to as the M-R locators as in Case No. 2379 supra, brought this action to obtain a temporary injunction restraining the defendant Harry L Scoggin from interfering with plaintiffs or their employees in going upon the placer mining claims theretofore located by plaintiffs as described in the opinion aforesaid and placing improvements upon said claims and also from threatening the plaintiffs or their employees with bodily harm or injuries and that upon final determination of the action the injunction be made perpetual.

The pleadings of the parties may be briefly outlined as follows Plaintiffs' petition filed June 27, 1945 alleged that the plaintiffs were on July 1, 1941 and since that date the owners and in possession of the Milread placer mining claims Nos. 1 to 4 inclusive and also the Milread placer mining claims Nos. 6 and 8 respectively, Nos. 9 to 16 inclusive and Nos. 18 to 20 inclusive, some seventeen placer mining claims in all, the land descriptions of each claim being set forth and the details of the steps taken by them as required by law to establish such claims as valid under federal and state mining statutes were also alleged. It was then averred that on January 19, 1945 the plaintiffs had filed their application for a United States patent to these claims in the United States Land Office at Buffalo, Wyoming; that the notice of application for patent for these lands was being duly published in the Sundance Times, a newspaper of general circulation in Crook County, Wyoming, its first publication being on June 21, 1945 and its last one August 16, 1945; that in order to obtain such a patent under the federal mining law to these several claims, it was necessary that plaintiffs do or cause to be done improvements worth at least $ 500 on each placer mining claim; that until June 20, 1945 the employees of the plaintiffs were engaged in building roads both to and on said claims, having theretofore placed some equipment on said claims for use there; that the defendant, Scoggin, on June 15, June 20, and June 22, 1945 went to plaintiffs' employees and ordered them to remove their equipment from plaintiffs' claims and refused to allow Miller, one of the M-R locators, and his employees to continue their work or go on with work on said...