Safford v. Flemming

• Decision Date: 13 April 1907
• Citation: 89 P. 827,13 Idaho 271
• Parties: JAMES L. SAFFORD et al., Appellants, v. H. E. FLEMMING et al., Respondents
• Court: Idaho Supreme Court

89 P. 827

13 Idaho 271

JAMES L. SAFFORD et al., Appellants, v. H. E. FLEMMING et al., Respondents

Supreme Court of Idaho

April 13, 1907

MINING CLAIMS-INJUNCTION PENDENTE LITE.

1. Where an action is brought to determine the right of possession to and ownership of certain mining ground, and it appears from the complaint and affidavit of one of the plaintiffs that the defendants have threatened to assault the plaintiffs and their employees if they appeared upon or undertook to do any work upon such claim, it is proper for the court to grant an injunction pendente lite, enjoining the defendants, their agents and employees from in any manner interfering with the plaintiffs and their employees in performing the necessary discovery work and other work upon said claim necessary to hold the same, although all of the allegations of the complaint and affidavit be denied by the defendants.

2. The practice of courts in mining cases is to be liberal in granting injunctive relief in mining litigation, in order that neither party may get the advantage of the other during the litigation, by force or violence.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Shoshone County. Hon. Ralph T. Morgan, Judge.

Action to quiet title to mining claim and for injunction pendente lite. The trial court refused to grant an injunction pendente lite. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellants.

John P Gray, A. H. Conner, and Henry P. Knight, for Appellants.

It has been the practice in the mining states to be liberal in the granting of injunctive relief in mining litigation, in order that one party might not be placed in worse position during the litigation. (Lindley's Law of Mines, 2d ed., sec 872; Hunt v. Steese, 75 Cal. 620, 17 P. 920; Silver Peak Mines v. Hanchett, 93 F. 76.)

Like bills of quia timet, injunctions in such cases are in the nature of writs of prevention, intended to accomplish the ends of precautionary justice. (Buskirk v. King, 72 F. 22, 18 C. C. A. 418; Hess v. Winder, 34 Cal. 270; King v. Campbell, 85 F. 814.)

Their purpose is to guard the property. It may be argued that the assaults committed and threatened are criminal acts, and therefore cannot be enjoined, but where such acts affect property rights as well, they are subject to the injunctive power of the court. (High on Injunctions, 4th ed., secs. 20 1415h.)

No appearance for respondents.

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This is an appeal from an order refusing an injunction pendente lite and dissolving a temporary restraining order issued at the time of filing complaint. The complaint was filed July 28, 1906, and the restraining order was issued upon the complaint, together with the affidavit of J. L. Safford, one of the plaintiffs, and made returnable August 10, 1906. On the latter date, the defendants appeared and filed their answer and their joint affidavit. They denied the allegations of the complaint and of the affidavit of J. L. Safford, and the court thereafter, on September 3d, made an order dissolving the temporary restraining order which had theretofore been issued and refused to grant an injunction pendente lite.

The complaint, which is verified, alleges that the plaintiffs are the owners of the Bunker Chance lode mining claim, situated in Eagle mining district, Shoshone county, Idaho; that they located the same on the 4th of June, 1906, and the complaint contained the other necessary allegations in an action of this kind. It is further alleged that thereafter the defendants, who are respondents here, entered upon said lode so located by the appellants, and pretended to initiate some claim thereto; that thereafter, on or about the seventeenth day of July, J. L. Safford, one of the plaintiffs, went upon the said ground with a man whom he had employed to perform the discovery work thereon; that said respondents met Safford and his employee there and threatened them with great bodily harm and threatened to kill Safford; that the man whom Safford had employed thereupon refused to remain and perform the discovery work; that afterward the appellants employed two other men to go on the Bunker Chance claim and go to work, and on or about July 26, 1906, while the men were so employed upon the ground, the respondents did forcibly and violently attack and assault them and prevent them from continuing the work.

The complaint also alleges on information and belief that the defendants removed the location notice of the appellants, and further, on information and belief, that it was the intention of the respondents to prevent the appellants from performing the location work required by law within the time limited by law, and prayed for an injunction pending the litigation.

The affidavit of Mr. Safford contains substantially the same allegations as are stated in the complaint, but states with more particularity the acts that occurred on the ground.

The answer of the respondents denied all the material allegations of the complaint and the...