Blake, C. J.
The Blue Bird Mining Company (Limited) is a corporation, organized under the laws of the Territory of Montana, and owns the Blue Bird Lode Mining Claim, which is situated in the county of Silver Bow. Murray et al. own, or possess as lessees, the Darling, Little Darling, and Lena K. Lode Mining claims, which are south of and, viewed as a whole, adjoin the property of the company. It is conceded that the company, asserting the right to follow its vein in the dip and beyond the side lines of the Blue Bird Lode Mining Claim as located, has been working at places which are within the limits of the claims of Murray et al. It is maintained by Murray ei al. that this under-ground development is not upon the property of the company, and the parties have resorted to the courts for legal and equitable relief. At the commencement of the action [472]*472of the company against Murray et al., the court granted an injunction, enjoining Murray et al. from working upon the Blue Bird Lode Mining Claim, and afterwards, upon a hearing, ordered that the same be continued in force pending the litigation. A motion was then filed by Murray et al., and supported by affidavits, applying for permission to prosecute certain work, and after a hearing an order was made March 29, 1890, which is before us for review.
The application alleges that “it is necessary to the preparation of this case for trial, and to the ascertainment and determination of the exact rights of the parties, and to the continuity and identity of the veins in question in this case, or the absence thereof, to prosecute development work, and particularly work hereinafter mentioned; and .... an injunction has heretofore been issued in this case against the defendants; and .... the plaintiff has refused its consent to the prosecution of the work hereinafter mentioned.” Accurate descriptions are given of the cross-cuts, shafts, winzes, lagging, and levels, which are to be the subjects of further labor, and the object thereof is distinctly pointed out. While the general nature of this development has been stated in the application, some definite specifications are cited to show the reasons for this order. “Fourth. To run east on the level known as the two-lmndred-foot level of the Little Darling to the east end line of the claim, through the openings made by the Blue Bird Company, and particularly the floor or drift known as the Foley drift, thus named after the man who last worked there for the Blue Bird Company. {Lae intention is here to extend said drift beyond the point where the Blue Bird Company left off, in order to determine whether or not any vein shows beyond said point.) .... Sixth. To open up the lagging which now closes up the connection made by the Blue Bird Company between levels Nos. 4 and 5, and which connection is made from the winze last mentioned, and an incline from the bottom thereof, and a raise from the five-hundred-foot level. (This being a connection or cross-cut recently made by the Blue Bird Company, and immediately lagged up by it, so that these defendants had no opportunity to examine the same; and the importance of which is shown in the affidavits filed in support thereof.)”
[473]*473The conditions which are set forth in the order appealed from should be considered. “ Provided, however, that all of the above-described work shall be done by the said defendants, at their own cost; and all dirt, debris, and ores shall be raised through their own shaft, except that, if the plaintiff so desires, it may itself take, raise, and hold, until the final determination of this suit, any ores which may be extracted from the vein shown on No. 4 level, or from any vein which may be encountered north thereof, or from the winze on No. 4 level. And except, also, that if plaintiff desires it, the opening of the lagging in the connection between levels No. 4 and No. 5 may be done by plaintiff,- or under plaintiff’s supervision ; provided, full liberty be allowed defendants to examine the same; and provided, further, that in the examination of said cross-cut connection between levels 4 and 5, and the cross-cut from No. 4 south, nothing more be done than is necessary for the examination thereof, and the ascertainment of the nature of the ground, or the formation through which the same are run; that if these matters can be determined without the removal or opening of any of the timbering, or by digging in the bottom thereof, then it shall be done accordingly. And it is further ordered that, for the purpose of doing the foregoing work and inspection, the defendants, and all persons employed by them, have a right of way through any openings, levels, and cross-cuts made by the Blue Bird Company within the lines of the Little Darling Claim.And provided, also, that the work, and particularly the inspection, shall be done in such a manner as not to endanger any of the present workings or openings; and that said connection between levels 4 and 5 and the cross-cut south from the Blue Bird shaft shall be left or replaced in the same condition that the same now are or may be at the time immediately prior to the inspection; and it is further provided, that any and all work done by the defendants by virtue hereof must be done in good workmanlike and mine fashion, and timbered in best mining fashion; and that these defendants, or such thereof as shall cause said work to be done, shall be in no manner relieved from liability for the doing of said work, or the manner in which it is done by this order; but that the same liability shall attach to them on account of such work as would [474]*474attach if done without this order, in case the ground or veins in which the same may be done be found or determined to belong to the plaintiff; and it is also further provided, that, in order to prevent any collision or interference between cars or other instruments of transportation of the ores or debris, that the defendants shall furnish, at their own expense, all necessary signal-men to warn the men employed by either party of the approach of cars, etc.; and the court reserves jurisdiction over the matter of this order for the purpose of seeing that it is carried out according to its spirit, and in proper manner; and provided, further, that nothing in this order contained shall authorize the defendants, or any of them, to go outside of the boundaries of their own claims.”
The respondents move to dismiss this appeal for the following reasons, to wit: “(1) That this court has no jurisdiction of the appeal or case. (2) That the order sought to be appealed from is not appealable. (3) That no exception was taken, or appears to have been taken to said order, and that there is no bill of exceptions thereto in the record, and that none was taken or filed, or appears to have been taken or filed.”
The notice of appeal states that the plaintiff appeals “from the order made and entered in the above-entitled cause . . . . whereby said judge, upon the application of the defendants, modified the injunction granted in this case against the defendants, and permitted defendants to prosecute certain work in the workings of plaintiff, and from the whole and every part of said order.”
The Code of Civil Procedure provides that “ an appeal may be taken .... from an order to grant or dissolve an injunction” (§ 421), and “from an order granting or dissolving an injunction.” (§ 444.) The order of injunction obtained by the appellant restrained Murray et al. from working upon the property, which it described as the Blue Bird Lode Mining Claim.
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Blake, C. J.
The Blue Bird Mining Company (Limited) is a corporation, organized under the laws of the Territory of Montana, and owns the Blue Bird Lode Mining Claim, which is situated in the county of Silver Bow. Murray et al. own, or possess as lessees, the Darling, Little Darling, and Lena K. Lode Mining claims, which are south of and, viewed as a whole, adjoin the property of the company. It is conceded that the company, asserting the right to follow its vein in the dip and beyond the side lines of the Blue Bird Lode Mining Claim as located, has been working at places which are within the limits of the claims of Murray et al. It is maintained by Murray ei al. that this under-ground development is not upon the property of the company, and the parties have resorted to the courts for legal and equitable relief. At the commencement of the action [472]*472of the company against Murray et al., the court granted an injunction, enjoining Murray et al. from working upon the Blue Bird Lode Mining Claim, and afterwards, upon a hearing, ordered that the same be continued in force pending the litigation. A motion was then filed by Murray et al., and supported by affidavits, applying for permission to prosecute certain work, and after a hearing an order was made March 29, 1890, which is before us for review.
The application alleges that “it is necessary to the preparation of this case for trial, and to the ascertainment and determination of the exact rights of the parties, and to the continuity and identity of the veins in question in this case, or the absence thereof, to prosecute development work, and particularly work hereinafter mentioned; and .... an injunction has heretofore been issued in this case against the defendants; and .... the plaintiff has refused its consent to the prosecution of the work hereinafter mentioned.” Accurate descriptions are given of the cross-cuts, shafts, winzes, lagging, and levels, which are to be the subjects of further labor, and the object thereof is distinctly pointed out. While the general nature of this development has been stated in the application, some definite specifications are cited to show the reasons for this order. “Fourth. To run east on the level known as the two-lmndred-foot level of the Little Darling to the east end line of the claim, through the openings made by the Blue Bird Company, and particularly the floor or drift known as the Foley drift, thus named after the man who last worked there for the Blue Bird Company. {Lae intention is here to extend said drift beyond the point where the Blue Bird Company left off, in order to determine whether or not any vein shows beyond said point.) .... Sixth. To open up the lagging which now closes up the connection made by the Blue Bird Company between levels Nos. 4 and 5, and which connection is made from the winze last mentioned, and an incline from the bottom thereof, and a raise from the five-hundred-foot level. (This being a connection or cross-cut recently made by the Blue Bird Company, and immediately lagged up by it, so that these defendants had no opportunity to examine the same; and the importance of which is shown in the affidavits filed in support thereof.)”
[473]*473The conditions which are set forth in the order appealed from should be considered. “ Provided, however, that all of the above-described work shall be done by the said defendants, at their own cost; and all dirt, debris, and ores shall be raised through their own shaft, except that, if the plaintiff so desires, it may itself take, raise, and hold, until the final determination of this suit, any ores which may be extracted from the vein shown on No. 4 level, or from any vein which may be encountered north thereof, or from the winze on No. 4 level. And except, also, that if plaintiff desires it, the opening of the lagging in the connection between levels No. 4 and No. 5 may be done by plaintiff,- or under plaintiff’s supervision ; provided, full liberty be allowed defendants to examine the same; and provided, further, that in the examination of said cross-cut connection between levels 4 and 5, and the cross-cut from No. 4 south, nothing more be done than is necessary for the examination thereof, and the ascertainment of the nature of the ground, or the formation through which the same are run; that if these matters can be determined without the removal or opening of any of the timbering, or by digging in the bottom thereof, then it shall be done accordingly. And it is further ordered that, for the purpose of doing the foregoing work and inspection, the defendants, and all persons employed by them, have a right of way through any openings, levels, and cross-cuts made by the Blue Bird Company within the lines of the Little Darling Claim.And provided, also, that the work, and particularly the inspection, shall be done in such a manner as not to endanger any of the present workings or openings; and that said connection between levels 4 and 5 and the cross-cut south from the Blue Bird shaft shall be left or replaced in the same condition that the same now are or may be at the time immediately prior to the inspection; and it is further provided, that any and all work done by the defendants by virtue hereof must be done in good workmanlike and mine fashion, and timbered in best mining fashion; and that these defendants, or such thereof as shall cause said work to be done, shall be in no manner relieved from liability for the doing of said work, or the manner in which it is done by this order; but that the same liability shall attach to them on account of such work as would [474]*474attach if done without this order, in case the ground or veins in which the same may be done be found or determined to belong to the plaintiff; and it is also further provided, that, in order to prevent any collision or interference between cars or other instruments of transportation of the ores or debris, that the defendants shall furnish, at their own expense, all necessary signal-men to warn the men employed by either party of the approach of cars, etc.; and the court reserves jurisdiction over the matter of this order for the purpose of seeing that it is carried out according to its spirit, and in proper manner; and provided, further, that nothing in this order contained shall authorize the defendants, or any of them, to go outside of the boundaries of their own claims.”
The respondents move to dismiss this appeal for the following reasons, to wit: “(1) That this court has no jurisdiction of the appeal or case. (2) That the order sought to be appealed from is not appealable. (3) That no exception was taken, or appears to have been taken to said order, and that there is no bill of exceptions thereto in the record, and that none was taken or filed, or appears to have been taken or filed.”
The notice of appeal states that the plaintiff appeals “from the order made and entered in the above-entitled cause . . . . whereby said judge, upon the application of the defendants, modified the injunction granted in this case against the defendants, and permitted defendants to prosecute certain work in the workings of plaintiff, and from the whole and every part of said order.”
The Code of Civil Procedure provides that “ an appeal may be taken .... from an order to grant or dissolve an injunction” (§ 421), and “from an order granting or dissolving an injunction.” (§ 444.) The order of injunction obtained by the appellant restrained Murray et al. from working upon the property, which it described as the Blue Bird Lode Mining Claim. The court in making the order under examination modified and thereby partially dissolved the original injunction by authorizing work within certain restrictions to be done. In Hunt v. Steese, 75 Cal. 626, the court says: “Motions for injunction are regularly heard upon complaint, answer, and affidavits, and no bill of exceptions is necessary, unless it be to identify the papers [475]*475used on tbe bearing in the court below.” The provisions of the Code of Civil Procedure of this State are similar to those of the Code of California, and we have adhered to the same rule. (Granite M. M. Co. v. Weinstein, 7 Mont. 346; Vaughn v. Dawes, 7 Mont. 380.) The necessary papers have been properly certified, and the motion to dismiss the appeal must be overruled. (See, also, Hefflon v. Bowers, 72 Cal. 270.)
The contention of the appellant is that the court had no authority to make the order; that it is unprecedented, and deprives the Blue Bird Mining Company (Limited) of the possession of its property, without due process of law. The counsel for the appellant in their brief say: “The plaintiff is within the limits of the defendants’ ground; that is not disputed, but it claims it has a right there; that where it has worked it has a right to be, and as a necessary consequence that the defendants have no right to be.” How does this concession affect the relations of the parties? In Cheesman v. Shreve, 37 Fed. Rep. 36, Mr. Justice Brewer says: “These defendants are entering beneath the surface, withiu the side lines of ground patented to complainants, and seeking to mine and take ore therefrom. Prima facie they are trespassers. They justify this entrance under authority of the laws of the United States, and especially section 2322 of the Revised Statutes, which give to the owner of a vein, lode, or ledge, the top or apex of which lies within the surface lines of his own location, the right to follow that vein downward, outside of the side lines of his location, and into territory whose surface belongs to another.So the defendants are entering within the side lines of complainant’s property. Prima facie they are trespasser’s; and where the affidavits, upon an application for a preliminary injunction, are conflicting, the rule is to preserve the possession as against such prima facie trespassers by a preliminary injunction, leaving the question of title to the property to be established by a suit at law.”
The granting or refusal of an injunction is a matter of discretion in the court below, and this rule was recognized at an early period in the courts of Montana. (Nelson v. O’Neal, 1 Mont. 284; Atchison v. Peterson, 1 Mont. 570; Hicks v. Michael, 15 Cal. 107; Hicks v. Compton, 18 Cal. 206; De Godey v. Godey, 39 Cal. 167; Rogers v. Tennant, 45 Cal. 186; Hiller v. Collins, [476]*47663 Cal. 238.) The question to be decided is whether there has been an abuse of judicial discretion.
In St. Louis M. & M. Co. v. Montana Company (Limited), ante, p. 288, this court reviewed the English and American authorities upon the right of parties interested in mines to have an inspection and survey under the laws of the State. We arrived at the conclusion that the source of these statutory provisions was the chancery practice of England, and, avoiding repetition, we will say that most of the cases cited in the opinion relate to orders which were made by virtue of equitable jurisdiction. Under the Constitution, “ the District Courts shall have original jurisdiction in all cases at law and in equity, including all cases which involve the title or right of possession of real property. . . . (Art. viii. § 11.) Independent of the statute upon the subject, we think that the court below, by virtue of its equity powers, could authorize the inspection and survey of the premises in controversy upon the motion of any party to the action. It was also maintained in St. Louis M. & M. Co. v. Montana Company (Limited), that the object of these proceedings was to obtain the best evidence for the trial, and that no constitutional rights of the owner of the property to be viewed had been infringed, although there would' be an interference with its possession. The appellant admits that it is willing that the respondents shall have all the privileges essential to an inspection and survey of its vein and works, but denies the power of the court to allow any work to be done thereon. The books seem to be destitute of precedents. The court is preserving the property pending the litigation, and the sole purpose of the order permitting any development by the respondents is to ascertain the facts, if possible. The appellant, according to Cheesman v. Shreve, supra, is prima fade a trespasser, and therefore the respondents are prima faoie in the rightful occupancy of the levels, shafts, winzes, and cross-cuts, which are described. The respondents submit with their brief certified copies of five orders, which have been made in controversies relating to lode mining claims by the Circuit Court of the United States for the District of Colorado. They contain all the features of which the appellant complains as obnoxious. Viewing the order as the best means of discovering the truth, and having the practi[477]*477cal effect of an inspection and survey, and considering the actual condition of the property, we are unable to hold that the court below has abused its discretion.
It is therefore adjudged that the order be affirmed with costs.
Harwood, J., and De Witt, J., concur.