Klein v. Davis

27 P. 511, 11 Mont. 155, 1891 Mont. LEXIS 65

• Court: Montana Supreme Court
• Decided: August 31, 1891
• Status: Published

Opinion

De Witt, J.

An important question has been presented by-counsel; that is to say, whether the right to dump tailings being granted to defendants, such grant included the right to run a bed-rock flume across the dumping ground; such flume, it being claimed by defendants, was necessary to the exercise of the right to dump tailings. This question is interesting, and largely the gist of the case, and, as it seems to us, should be determined upon a full investigation of the facts, and the nature, character, and proposed uses of the flume. This could be done upon a trial. The matter is now before us only on the complaint and affidavits, on an appeal from an order dissolving a ■temporary injunction.

Aside from the point just referred to, we find that all of plaintiffs’ alleged equities are denied by the defendants’ affidavits.

The question of law that we have noticed, we do not feel impelled to investigate at this stage of the case, as it is before us upon a pleading and affidavits only, which are, each in itself, ex parte in character; and the allegations are not subjected to cross-examination, which would bring out all the facts as upon a trial. It occurs to us that a clear and full knowledge of the facts in relation to the flume would greatly aid a court in finally determining whether its proposed use was within the grant of the easement to dump tailings. We leave that matter for the investigation of the lower court, for the reason that the question of the dissolution of the temporary injunction can be decided upon other grounds.

The proposed flume was a considerable enterprise. It extended seven hundred and fifty feet. It had been in construction for a year and a half. Only twenty-eight feet remained to be built. Plaintiffs stood by for a year and a half, and offered no objection to the prosecution of the work, until only three or four per cent of the whole remained to be done, and they then concluded that irreparable injury was about to be done them by the completion of these twenty-eight feet. An injunction would not apply to the past work. It was only a matter of restraining the completion of a few feet of a large work. It is noticed above that all the allegations as to taking out gold and tearing down the dam are denied. Therefore, the only question is whether the district judge abused his discretion in dissolving the temporary injunction as to completing the twenty-eight feet of flume. The judge went upon the premises and made a personal examination. “The granting or refusing of an injunction is a matter of discretion in the court below.” (Blue Bird Min. Co. v. Murray, 9 Mont. 475, citing the early cases of Nelson v. O’Neal, 1 Mont. 284, and Atchinson v. Peterson, 1 Mont. 561.)

We are of opinion that there was no abuse of discretion by the district judge, and his order dissolving the injunction is affirmed.

Affirmed.

Blake, C. J., and Harwood, J., concur.