BERRY, J.
(After Stating the Facts). — There are three principal points in this case: 1. Is the plaintiff the owner of the mining grounds claimed by him, so as to be entitled to invoke the aid of this court to prevent the acts complained of ? 2. Is [701] tbe injury alleged of such a character as to warrant the exercise of the equity power of the court? And 3. Is such injury, in fact, threatened or being done ?
As to the question of nonjoinder of parties plaintiff, that is not properly in issue on an application for an injunction against ..the acts of a stranger to the property threatened with injury. A party may intervene to protect by injunction his own interests, as well as the interests of his cotenants. But, if this were otherwise, the deeds to plaintiff introduced in evidence on the hearing cover all the interests of each of those persons in each of the three claims alleged by the plaintiff to belong to him, except said W. B. Heyburn, who is not shown to have any interest in either of said claims; and from the evidence there appears to be no ground for such claim.
We may first inquire, then, as to whether the plaintiff has shown sufficient to give him a standing in court. This case seems to have been tried, in part at least, upon the theory and tacit understanding that prima facie proof of the plaintiff’s title was all, on the question of location, that need be shown in such a case as this. After some evidence had been put in by the plaintiff tending to show the validity of his location of the Apex claim the court asked: “Are you gentlemen going into matters showing everything which goes to show a valid location? Plaintiff’s Counsel: We do not want to. Defendant’s Counsel: We do not either. Plaintiff’s Counsel: We just propose to make a prima facie case” — and passed immediately from the subject of the Apex location (which to that point had been the subject of the evidence) to the location of the Kambler. This may not be considered as a stipulation releasing the plaintiff from the obligation to introduce further evidence on the location of the Apex, or that the evidence already in made a prima facie case of location; but it seems to express the mutual understanding between the court and the counsel on either side as to the theory and rule of law on which the case was to be heard and determined; and may well have had an effect in restricting the amount of evidence which either side might deem necessary after making a prima facie case. It is not to be presumed that the defendant, on a preliminary motion, and especially under such circumstances, would introduce all the evidence he would on the trial.' [702] From a review of tbe plaintiffs evidence up to tbe close of the examination of John Gill this theory was evidently relied on;but afterward, however, the plaintiff returned to the subject of' the location of the Apex,.introduced Michael Gibbons, John M. Burke, W. Clayton Miller, J. M. Porter, C. D. Porter, and other witnesses as to the facts of locations, as to the character of the-ledge claimed in the Apex, its outcrop within the Apex lines, the character of the material as to ore, its appearance or nonappearance in the shaft sunk from the surface of the Apex, the-dip of the underground veins, and the relation of the ledge-claimed for the Apex with the defendant’s drifts beyond the west side line of the Sierra Nevada, and on other points. Much-of this evidence was controverted by the witnesses of the defendant, and some of it was corroborated; but, on the whole, the weight of the testimony seems to be in favor of the validity of the plaintiff’s locations. He certainly makes a strong primee facie case, covering his surface locations, and, of course, to the vein in the Apex, whatever it may be, and wherever it may run- or dip. The defendant, in its brief, says: “The plaintiff should establish his title to the surface ground under which he claims, which, to say the least, is very doubtful upon the showing.’” This is the defendant’s view after the evidence is all in. Jt. must be noted that the plaintiff is in possession of his claim,, and the presumption is that his possession is lawful, and the burden is on the defendant to repel such presumption, and also-that one objéct of this action is to settle the question of that right. In the cross-bill the defendant demands that it shall be-settled. The action of the judge, or of either of the judges, before whom this motion has been considered, did not afEeet, or tend to afEeet, that settlement. The judges had no authority to do that. The fact of the plaintiff’s compliance with the law, or his noncompliance, is a question of fact only, to be determined on the trial of the case. If, then, after all this preliminary proof on both sides is in, the question is pronounced by the defendant as “doubtful upon the showing,” the status of the plaintiff as a proper party to demand the preservation of the property he is contending for is practically conceded. But without such concession the law insures such right to the plaintiff-
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BERRY, J.
(After Stating the Facts). — There are three principal points in this case: 1. Is the plaintiff the owner of the mining grounds claimed by him, so as to be entitled to invoke the aid of this court to prevent the acts complained of ? 2. Is [701] tbe injury alleged of such a character as to warrant the exercise of the equity power of the court? And 3. Is such injury, in fact, threatened or being done ?
As to the question of nonjoinder of parties plaintiff, that is not properly in issue on an application for an injunction against ..the acts of a stranger to the property threatened with injury. A party may intervene to protect by injunction his own interests, as well as the interests of his cotenants. But, if this were otherwise, the deeds to plaintiff introduced in evidence on the hearing cover all the interests of each of those persons in each of the three claims alleged by the plaintiff to belong to him, except said W. B. Heyburn, who is not shown to have any interest in either of said claims; and from the evidence there appears to be no ground for such claim.
We may first inquire, then, as to whether the plaintiff has shown sufficient to give him a standing in court. This case seems to have been tried, in part at least, upon the theory and tacit understanding that prima facie proof of the plaintiff’s title was all, on the question of location, that need be shown in such a case as this. After some evidence had been put in by the plaintiff tending to show the validity of his location of the Apex claim the court asked: “Are you gentlemen going into matters showing everything which goes to show a valid location? Plaintiff’s Counsel: We do not want to. Defendant’s Counsel: We do not either. Plaintiff’s Counsel: We just propose to make a prima facie case” — and passed immediately from the subject of the Apex location (which to that point had been the subject of the evidence) to the location of the Kambler. This may not be considered as a stipulation releasing the plaintiff from the obligation to introduce further evidence on the location of the Apex, or that the evidence already in made a prima facie case of location; but it seems to express the mutual understanding between the court and the counsel on either side as to the theory and rule of law on which the case was to be heard and determined; and may well have had an effect in restricting the amount of evidence which either side might deem necessary after making a prima facie case. It is not to be presumed that the defendant, on a preliminary motion, and especially under such circumstances, would introduce all the evidence he would on the trial.' [702] From a review of tbe plaintiffs evidence up to tbe close of the examination of John Gill this theory was evidently relied on;but afterward, however, the plaintiff returned to the subject of' the location of the Apex,.introduced Michael Gibbons, John M. Burke, W. Clayton Miller, J. M. Porter, C. D. Porter, and other witnesses as to the facts of locations, as to the character of the-ledge claimed in the Apex, its outcrop within the Apex lines, the character of the material as to ore, its appearance or nonappearance in the shaft sunk from the surface of the Apex, the-dip of the underground veins, and the relation of the ledge-claimed for the Apex with the defendant’s drifts beyond the west side line of the Sierra Nevada, and on other points. Much-of this evidence was controverted by the witnesses of the defendant, and some of it was corroborated; but, on the whole, the weight of the testimony seems to be in favor of the validity of the plaintiff’s locations. He certainly makes a strong primee facie case, covering his surface locations, and, of course, to the vein in the Apex, whatever it may be, and wherever it may run- or dip. The defendant, in its brief, says: “The plaintiff should establish his title to the surface ground under which he claims, which, to say the least, is very doubtful upon the showing.’” This is the defendant’s view after the evidence is all in. Jt. must be noted that the plaintiff is in possession of his claim,, and the presumption is that his possession is lawful, and the burden is on the defendant to repel such presumption, and also-that one objéct of this action is to settle the question of that right. In the cross-bill the defendant demands that it shall be-settled. The action of the judge, or of either of the judges, before whom this motion has been considered, did not afEeet, or tend to afEeet, that settlement. The judges had no authority to do that. The fact of the plaintiff’s compliance with the law, or his noncompliance, is a question of fact only, to be determined on the trial of the case. If, then, after all this preliminary proof on both sides is in, the question is pronounced by the defendant as “doubtful upon the showing,” the status of the plaintiff as a proper party to demand the preservation of the property he is contending for is practically conceded. But without such concession the law insures such right to the plaintiff-
[703] We may then inquire as to the character of the injury alleged. By section 4288 of the Bevised Statutes of Idaho, subdivisions 1-3, it is provided that an injunction may be granted “(1) when it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually”; and “(2) when it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, great or irreparable injury to the plaintiff; (3) when it appears during litigation that the defendant is doing . . . . some act, in violation of the plaintiff’s rights, respecting the subject of the action, and [having a] tendency to render the judgment ineffectual.” The statute seems to be framed to meet the ease of such an injury as is here complained of. The subject matter of the litigation is a mine, which is valuable only for the mineral it contains. To remove that mineral is certainly waste, and waste is one ground for the issuance of this writ. It is also great injury; and that is another ground, whether it be reparable or not. Irreparable injury is still another ground, disjoined in the statute from the other grounds. To remove the ore from the mine, and leave but a worthless shell to be contended for, would certainly have a “tendency to render ineffectual” any judgment which the plaintiff might recover. Conceding the plaintiff’s rights to his mining claim and to the ledge to be as stated in the complaint, it cannot be argued that continuing to remove the ore from the mine is not waste of the property, nor that such acts do not constitute great damage, nor that to do so does not tend to render a judgment in his favor ineffectual. The chief argument of the defendant is that the defendant is solvent, and abundantly able to pay any damage which may be found against it. But even on this point the case is against the defendant. The complaint states that the defendant is a foreign corporation. That is admitted. Also, positively, that it is insolvent. That is only denied on information and belief. There was no evidence given on the subject at the hearing. Hence, that allegation of a fact in the case, except for the purposes of pleading only, must be taken as unanswered. [704] On tbe whole, upon this point, it may well be questioned whether the plaintiff has not fully shown that the injury, if consummated, will be irreparable. But, whether it be fully shown or not, the other statutory grounds, as we have seen, are sufficient to authorize him to claim an injunction.
We may then turn to the main and last consideration in this case, and inquire whether the evidence taken shows that the injury complained of is in fact being done. We have before said that, prima facie, a miner is confined within the boundary lines of his claim. Section 2322 of the Bevised Statutes of the United States, provides, among other things, that the owner of a mining claim “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations.” The claim of the defendant is that the veins of ore on which the defendant admits it is working are veins, the top or apex of which lies inside of the side lines of the Sierra Nevada claim. On the other hand, the plaintiff avers that the apex of such veins is not within the side lines of the Sierra Nevada claim, and hence that the defendant has no right to follow it within the plaintiff’s lines. His theory is that the true apex of the lode is in his Apex claim, and that its strike is nearly at right angles with the western side line of the Sierra Nevada claim, and that the dip of the vein matter is more to the south than is claimed by the defendant. But the plaintiff also urges that, wherever the apex of this vein may be, or if it have no apex at all, but is simply a blanket vein, if its apex be not between the defendant’s side lines, the defendant has no right to follow it into the plaintiff’s grounds, or within the boundaries of the claims of which the plaintiff is in possession. That is a proper construction of the law. The defendant’s right to that ore, if he have such right, must be based solely upon the fact that the vein has its apex within its own side line. The difficulty in determining this matter is greatly increased by the [705] fact that no up-raises upon the vein are shown to have been made by the defendant to determine its apex, or to show its dip or trend. No shafts have been sunk on any of the ground in ques-. tion, except it be the shaft in the Apex claim, which penetrated the workings of the defendant. Considerable evidence has been produced, mostly (unless we except the evidence of the Apex shaft, and diagrams and plats of defen'1 ant’s workings) of a speculative character. There is in that evidence much conflict on material points. But, considering all of the witnesses of equal credibility, the circumstances under which their knowledge was obtained, and the probabilities of their correct understanding of the facts, throws light upon many of these apparent discrepancies; and the actual measurements and plats of skillful •engineers show controlling facts, in view of which the oral evidence must be understood, and erroneous theories must be corrected. The courses of the surface lines of these several claims require careful attention. The fact that the Sierra Nevada •claim has been relocated and swung around from its original location has little or no bearing upon what is here the main question. We are to consider the claim as it now is.
It is proved without a question that the plaintiff sunk a shaft from about midway between the side lines of the Apex claim, ■and near the eastern end line, in what is described as 'ledge matter,” consisting of quartzite, talc, and some ore, at a considerable deflection to the south from a vertical line, following the dip of this so-called “ledge matter” in its several variations, but always inclining to the south, a distance of about one hundred and fifty feet, and was led thereby upon and into the underground workings of the defendant; that such shaft, in its descent, when the defendant’s work was struck, had passed beyond the side line of the Apex claim, a considerable distance into the Eambler grounds; that in the descent the plaintiff found some ■ore before reaching the defendant’s works, and had put some in sacks before reaching the lagging over the defendant’s tunnel. This so-called “ledge matter” is testified to as continuous. It is55 worthy of note that the ore which the defendant was tunneling and stoping out was, in character, carbonate and galena.
[706] “Witness Gibbons. — Q. State from your observation as to the quality of the ore. A. It was carbonate, I said.” This-dues not seem to be controverted, and the fact may bear upon the question of apex or dip; for it is a matter of common knowledge that carbonate ores are sometimes found in blanket veins-without apices or dips. The extraordinary width of this mineral belt or zone — extending, as all concede, often to many hundreds of feet — is unusual, and hardly conceivable in a fissure vein; also-its position, almost horizontal, at least in the claims in question. All, taken together, may raise strong doubts, in the absence, of actual demonstration, of its being in its main breadth a fissure-vein at all. If that were so, it would be an end to the controversy between the parties, and the injunction should, of course, issue. But the case is presented as concerning a fissure vein only, with the usual apices and dips; and so we must consider it, by the light given us by the evidence. In examining the-maps and diagrams in the case, our attention is at once called to the fact, from the map of the defendant (exhibit “X”), that, the mean dip of the vein in the grounds claimed by the plaintiff,, corresponding, also, mainly to the evidence of the witness, is south, five degrees west. The north side line of the Apex claim runs south, eighty-two degrees, thirty minutes east. Hence, such dip is only two and one-half degrees east of a right angle with that side line of the Apex claim, or nearly at right angles with it. The lead of the vein as claimed by the defendant on that map seems by inspection to be about north, from five to ten degrees east; so that the average dip, as the defendant claims it, would deflect from the lead of the Sierra Nevada ledge something less than five degrees — possibly not at all. It was stated on the argument, and not controverted, and as we think the rulé-is, that the true average dip of a vein is always at right angles-to the lead; and, if the veins so being worked by the defendant are really dips from the Sierra Nevada claim or lead, it is difficult to harmonize these principles and facts. But they do all harmonize with the claim and theory of the plaintiff. To comply with the defendant’s theory, the average true dip should be west, and perhaps some degrees north of west, or at least ninety degrees from what it is shown to be on the map., and also as-stated by the witnesses.
[707] The following - diagram, drawn from the exhibits, mostly of the defendant, will tend still further to illustrate the facts in the case:
Tunnel A is a working tunnel, and some distance below the plane of the mineral and of the tunnels upon the ore. All the tunnels, B, C, D, E, are claimed by the defendant to enter on the outcrop of the ledge; but the elevations marked on exhibit "X” show that such outcrop is not an apex or crest of a vein dipping laterally from it, but that it is an outcrop on the mountain side of a mineral deposit, nearly horizontal in position, but rising slightly as it recedes into the hill, and at right angles with a line formed by the mouths of these tunnels. All these tunnels run on the footwall, or. rather on the bedrock or floor of the ore deposits. Here there can be no dispute as to the respective elevations of the mineral at the points named. The elevation of the bottom of the mouth of tunnel B is three thousand four hundred and fifteen feet. At its face, in the Rambler claim, it is three thousand four hundred and nineteen feet — a rise of four feet. The elevation at the mouth of tunnel C, distant from B about one hundred and fifty feet, is three thousand four hundred and thirty-eight feet. At a point a little over [708] two hundred feet west, where the measurement was taken, its elevation is three thousand four hundred and forty-one feet — a rise of three feet. Tunnel D, at its mouth, is three thousand four hundred and forty-nine feet. At about one hundred and fifty feet west, its elevation is three thousand four hundred and fifty-four feet — a rise of five feet. At a point near the southeast corner of the Apex claim, it falls to three thousand four hundred and forti'-eight feet — a depression of one foot below its mouth, about two hundred and fifty feet distant. The elevation of tunnel E at its mouth is three thousand four hundred and sixty-nine feet. In about one hundred feet it descends to three thousand four hundred and sixtj'-sevcn feet, and in about sixty feet further rises to three thousand four hundred and seventy-two feet, or to a plane three feet above its mouth. It is admitted on the argument that the water from these workings of the defendant flows out at the mouths of these tunnels. When we consider that these tunnels are practically almost parallel with each other, and running nearly west, it seems impossible to conclude that these deposits of ores in any way dip from anything yet shown in the Nevada claim. They all rise upward from the entire Sierra Nevada system, whatever its formation may be.
Bpt, further considering the tunnel developments, there is not one of them that does not leave the line of the Sierra Nevada outcrop, practically, at right angles to it — each, as testified by the defendant’s witnesses, upon a vein of mineral, and pursuing an almost due.westerly course; .tunnel B, at least, running over six hundred feet — and all ending among the stopes, uniting these tunnels at their westerly ends. Not one tunnel indicates a lead in the direction of what the defendant claims as the apex of its mining claim; but all of them do indicate an extension of the mineral belt or zone westerly, at almost right angles from the defendant’s outcrops, longitudinally with the side lines of plaintiff’s claims, through and westerly of 'the point reached-by the-plaintiff’s shaft, from what is called the "discovery point” of the Apex claim, the bedrock or floor of the whole system rising slightly from the outcrop on the Sierra Nevada as the system, zone, or mineral belt and the defendant’s tunnels reach to the [709] westward. Another fact, heretofore mentioned, lias proof positive in tbe several elevations of these tunnels — namely, that the dip of the floor of this mineral belt or zone is from north to south. The elevation at the month of tunnel B is three thousand four hundred and fifteen feet. One hundred and fifty feet northerly, at the mouth of C, the rise is twenty-three feet. At D, one hundred and twenty-five feet farther, the rise is eleven, feet. From D to C, one hundred feet farther north, it is twenty feet. So that the rise from B to C — a distance, by inspection, of the map, of about three hundred and seventy-five feet — crossing this mineral belt, is fifty-four feet; and as far west as these tunnels go along this belt the same relations in the elevations of the southern portions seem to be maintained. This also corroborates the evidence of some of the witnesses, and is consistent with plaintiff’s claim.
From these and other like facts, it seems to us as plain that defendant shows no reason whatever to justify it in extending its works, and extracting the ore in this mineral ground west of its own side line of the Sierra Nevada claim, and within the boundary lines of the plaintiff’s mining claim. The order denying the injunction should be overruled, and a temporary injunction should issue, as prayed in the complaint. It is so ordered.