Stewart Mining Co. v. Ontario Mining Co.

• Decision Date: 20 January 1913
• Parties: STEWART MINING CO., a Corporation, Appellant, v. ONTARIO MINING CO., a Corporation, and STANLEY A. EASTON and MYRON A. FOLSOM, Respondents
• Court: Idaho Supreme Court

129 P. 932

23 Idaho 280

STEWART MINING CO., a Corporation, Appellant, v. ONTARIO MINING CO., a Corporation, and STANLEY A. EASTON and MYRON A. FOLSOM, Respondents

Supreme Court of Idaho

January 20, 1913

MINING CLAIMS-EXTRALATERAL RIGHTS-INJUNCTION PENDENTE LITE-DISCRETION OF COURT.

(Syllabus by the court.)

1. Where the Stewart Mining Company owns the Senator Stewart Fraction mining claim, and it is claimed that a vein which apexes in said mining claim extends on its dip outside of the exterior boundaries of said claim and underneath the surface boundaries of the Ontario mining claim, and the Ontario Mining Company is working said Ontario mining claim and extracting large amounts of ore therefrom, which is claimed by the Stewart Mining Company as a part of the Stewart Fraction vein on its dip, and an action is brought to determine the rights of the parties, and application is made for an injunction pendente lite, the action of the court in refusing to grant such injunction will not be disturbed unless it clearly appears that there has been an abuse of the discretion of the court in said matter.

2. In this class of cases an injunction pendente lite, upon proper application, should be granted, unless it appears that there is no reasonable ground for the assertion of title in the plaintiff.

3. In this class of cases it is within the discretion of the court to substitute an indemnifying bond in lieu of the injunction.

APPEAL from the District Court of the First Judicial District, in and for Shoshone County. Hon. W. W. Woods, Judge.

Action to determine the ownership of a vein or lode on its dip outside of the surface boundaries of the Stewart Fraction mining claim and to obtain an injunction pendente lite. Application for injunction denied. Affirmed.

Affirmed. Costs awarded to respondents.

Gunn Rasch & Hall, Happy, Cullen, Lee & Hindman and Featherstone &amp Fox, for Appellant.

"Always in questions on the working of mines, the doubt should be resolved in favor of granting the writ." (Gilpin v Sierra Nevada etc. Co., 2 Idaho 709, 23 P. 547, 1014, 17 Morr. Min. Rep. 210.)

An injunction should be granted, pending the determination of the issue as to ownership, unless it appears that the plaintiff's title is bad, or, at least, that there is no reasonable ground for the assertion of title by the plaintiff. (Lindley on Mines, 2d ed., p. 1608.)

The purpose of such injunction is to protect the rights of the parties until the final determination of the case. (Safford v. Flemming, 13 Idaho 271, 89 P. 827; Boyd v. Desrozier, 20 Mont. 444, 52 P. 53; Snyder, Mines, sec. 1626 et seq.)

James E. Gyde, John P. Gray and Myron A. Folsom, for Respondents.

"The issuance of a preliminary injunction pendente lite rests largely in the discretion of the court, and the exercise of that discretion will not be reversed on appeal unless there appears a clear abuse of such discretion." (Angell v. Continental Oil Co., 19 Idaho 746, 115 P. 692; Sharon v. Sharon, 75 Cal. 1, 16 P. 345.)

The courts do not grant injunctions upon mere chance of extralateral rights. (Montana Ore Purchasing Co. v. Boston etc. Min. Co., 22 Mont. 159, 56 P. 120; Collins v. Bailey, 22 Colo. App. 149, 125 P. 543.)

SULLIVAN, J. Stewart, J., concurs.

OPINION

SULLIVAN, J.

This appeal is from an order denying the application of the appellant for an injunction pendente lite. The complaint alleges the ownership by the appellant of the Stewart Fraction quartz lode mining claim and that within said claim is a vein or lode, the top or apex of which crosses the easterly end line of said claim at approximately the center thereof between corners 1 and 2 and extends within the boundaries of said claim in a westerly direction, following the general course of said vein for a distance of 705 feet, more or less; that said vein has a downward course, and descends into the earth southerly and beyond the south boundary and side line of said claim into and beneath the surface of the Ontario lode mining claim; that defendants have been, and are now, extracting ore and mineral from that part of said vein beneath the surface of the Ontario claim between a vertical plane drawn downward through the east end line of said Stewart Fraction claim extended southerly in its own direction and a vertical plane drawn downward through a line parallel to, and 705 feet westerly from, said east end line extended.

The prayer is for an accounting, for judgment for the value of the ore and mineral removed by the defendants, and for a temporary injunction pendente lite and a permanent injunction when the action is finally determined.

The complaint is supported by several affidavits. At the time of the commencement of the action a restraining order and an order to show cause why an injunction pendente lite should not be granted were issued. The application was made and decided upon the complaint, affidavits filed by the respective parties, oral testimony adduced by the cross-examination of certain of the witnesses for the plaintiff and the oral testimony of Easton, one of the defendants. The court refused to grant the injunction pendente lite, and it is from that order that this appeal is taken.

The only error specified is that the court erred in denying said application for an injunction.

There appears to be no question in regard to the fact that the Stewart Mining Co., a corporation, owns the Senator Stewart Fraction mining claim, which claim is patented. There are three ore bodies beneath the Ontario mining claim, which are in controversy. The most southerly one is designated as the "Frank" ore body, the most northerly the "Gray" ore body, and the middle one, the "May" ore body.

It is contended by the appellant company that the apex of said ore bodies is within the surface boundaries of the Senator Stewart Fraction mining claim, and that the ore in said ore bodies is the property of the Stewart Mining Company. It is claimed that said apex is a subsurface apex. It is admitted by both the appellant and the respondents that the said vein or lode ends along the line of the said apex where it encounters a fault of large magnitude known as the "Osborn" fault. What is claimed by the appellant to be the apex of said vein is claimed by the respondents to be the side edge or bottom edge of the vein. There is but little controversy regarding the facts to be considered in determining the question of apex. The position of the respondents with reference to said alleged apex is stated in the affidavit of Mr. Hershey, one of the expert witnesses for the respondents, as follows:

"The apex alleged as crossing the easterly end line of the Senator Stewart Fraction mining claim and extending thence substantially parallel to the said line of the said claim is the line along which the northeast ore body is cut off by a great fault. This fault was observed on October 7th, this year, in the Fir tunnel, and in the stopes near the three hundred foot level. . . . It is one of the great faults of the district and has a very strong gouge and fault breccia. This displacement on the fault is not definitely known but it is certainly some thousands of feet. It is younger than and cuts off all the veins of the system to which the Stewart ore bodies belong. In the Fir tunnel, and near the three hundred foot level, it strikes approximately east and dips approximately south. Projecting it to the surface at any dip known to be persistent for some distance or any section of the fault will bring its apex well north of the northeast or No. 1 corner of the Senator Stewart Fraction claim, hence outside of the claim. As the northeast ore body in the Stewart mine approaches this great fault, it is broken and bent somewhat toward the right by the drag of the fault. It is further broken and dragged in the fault breccia, but is cut off rather abruptly on the Fir tunnel level. In the stopes immediately above the three hundred foot level, there is an angle of more than thirty degrees between the fault and the adjacent portion of the vein. From a geological standpoint, the above defined line along which the vein is cut off by the great fault is not a top or an apex, but rather the bottom edge of the ore body. From the known structural relations of the district, it may be premised that this fault will continue to cut off the vein in depth, so that by going down on the dip of the vein on any line one will come eventually to this fault. For practical purposes it is the downward termination of the vein. In the same way, the Frank ore body is terminated downward by the fault traced upward from the Ontario workings. The only essential difference between the two faults is that the displacement on one apparently is much greater than on the other. The real apex of each of these ore bodies must be looked for upward. From a knowledge of the position of the Frank vein in the so-called Stewart upper tunnel, I believe the real apex of the vein to lie within the west four hundred feet of the Senator Stewart Fraction claim, substantially as indicated in a plat accompanying the affidavit of F. W. Callaway. It has a course approximately parallel to the general course of the vein. . . . The position of the true or subsurface apex of the northeast [or Gray] ore body or vein, in the Senator Stewart Fraction claim, is not known to me, but from the known position of the vein in the workings, I believe it must lie more than six hundred feet westerly from the easterly end line of the claim, and know that it does not pass through this easterly end line."

Witness Bailey testified: "I visited the place where the vein and ore body within the Stewart works terminates underneath the east end line of the Senator Stewart Fraction claim. Said ore body and vein are cut...