Nelson v. O'Neal

• Decision Date: 31 January 1871
• Citation: 1 Mont. 284
• Parties: NELSON, appellant, v. O'NEAL, respondent.
• Court: Montana Supreme Court

1 Mont. 284

NELSON, appellant,

v.O'NEAL, respondent.

Supreme Court of the Territory of Montana.

January Term, 1871.

Appeal from the Third District, Lewis and Clarke County.

THE facts are stated in the opinion of the court.

The judgment appealed from was rendered in the district court, in August, 1870, by SYMES, J.

SHOBER & LOWRY, E. W. TOOLE and G. MAY, for appellant.

It is admitted by the pleadings that respondents were insolvent. The jury found that the erection of the dam higher, as complained of by appellant and threatened by respondents, would interfere with the profitable use and enjoyment of appellant's mining ground. Appellant was entitled to an injunction to restrain respondents from erecting said dam. Ramsay v. Chandler, 3 Cal. 90.

An injunction is a preventive remedy, and it comports more with justice to both parties to restrain the threatened trespass, than to leave the appellant to his remedy at law, particularly when the respondents admit their insolvency and have no remedy at law. Slade v. Sullivan, 17 Cal. 102; Hill. on Inj., ch. 1, §§ 1, 5, 7, 14, 31.

Appellant's mining operations will be interfered with, if respondents are not enjoined. Respondents have shown no right to trespass on appellant's ground.

W. F. SANDERS, for respondents.

Respondents own the ground on which the dam was erected and debris arrested. Respondents threatened to raise their dam higher to stop a trespass of appellant. They could compel appellant to stop this trespass on his own ground. The pleadings and findings do not show who has priority of right in mining. Appellant cannot have judgment, until the questions relating to the right of respondents to flow back on appellant's ground, debris, tailings, etc., which appellant is wrongfully attempting to flow on respondents, are settled in favor of appellant. Logan v. Driscoll, 19 Cal. 623; Am. Law Reg. 1867, 1868, p. 698.

Parties must care for their own tailings on their own ground. Respondents could crib those of appellant on his own ground, but the jury find that respondents cribbed them on their own. A mere threat to commit a trespass, without an overt act, does not justify an injunction.

KNOWLES, J.

This is an action of trespass, brought by appellant for damages for an alleged entry upon his mining ground, and erecting a dam thereon, which stopped tailings upon the said mining ground, and alleging that the respondents threatened to continue the injury, and to erect the said dam higher, and asking for an injunction to restrain them from the commission of these wrongs. Respondents deny that appellant owns the mining ground described; admit erecting...