Parrot Silver & Copper Co. v. Heinze

• Decision Date: 26 November 1900
• Citation: 62 P. 818,24 Mont. 485
• Parties: PARROT SILVER & COPPER CO. v. HEINZE et al.
• Court: Montana Supreme Court

62 P. 818

24 Mont. 485

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

Supreme Court of Montana

November 26, 1900

Appeal from district court, Silverbow county; Henry C. Smith, Judge.

Application for injunction by the Parrot Silver & Copper Company, a corporation, against A. P. Heinze and others. From an order granting the same, defendants appeal. Affirmed.

McHatton & Cotter, for appellants.

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

BRANTLY C.J.

This is an appeal from an order granting an injunction pendente lite. The plaintiff is the owner of the Little Mina lode claim situate in the county of Silverbow. This claim lies in a northwesterly and southeasterly direction. Immediately south of the easterly half of the claim lies the Nipper lode claim which, at the time this action was begun, was occupied and worked by defendant A. P. Heinze as lessee of defendant F. A. Heinze, the owner. This latter claim lies nearly due east and west. As ground for the injunction plaintiff alleges that within the boundaries of the Little Mina claim are two veins, the apex of one of which, known as the "discovery vein," extends throughout the entire length of the claim, while that of the other, or more southerly one extends from the westerly end line of the claim approximately parallel with the south side line thereof to a point 205 feet west of the easterly end line of the claim, where it passes into the Nipper claim; that the part of this latter vein which is within the boundaries of the Little Mina claim in its downward course dips to the south, and so far departs from the perpendicular as to extend outside of the vertical plane of the southerly side line, and to enter the ground lying south of the Little Mina claim; and that the defendants, by means of underground workings, have entered upon the portions of said vein west of the point at which it crosses the southerly side line of the Little Mina claim, and through these workings are engaged in mining, removing, and converting to their own use large quantities of ore which belong to the plaintiff. The defendants deny that they are trespassing upon the vein, or any part of the vein, or any vein, which has its apex in the Little Mina claim, and allege that the vein upon which A. P. Heinze is engaged in mining has its apex in the Nipper claim. At the hearing evidence was submitted, both oral and written, as to the identity of the vein in dispute with...