Power v. Klein

27 P. 513, 11 Mont. 159, 1891 Mont. LEXIS 66

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

Opinion

De Witt, J.

This action is for damages and injunction. It is a companion to the case of Klein v. Davis, ante, page 155 (just decided). The defendants therein are the plaintiffs herein. The plaintiffs herein filed their complaint, praying that the defendants be enjoined from interfering with the construction of the flume described in the case of Klein v. Davis. The same proposition of law will arise in this case as to the extent of the easement in the right to dump tailings. The plaintiffs, upon their complaint, obtained from the district judge a temporary injunction. The defendants did not move to dissolve, or make any showing by affidavits or answer why the injunction should not be granted. They appealed directly from the order granting the temporary injunction. Nothing is before this court but the complaint. Its allegations are undenied, and for the purpose of this review are taken as true. We do not know what may develop when an answer is filed, and evidence introduced, if the case goes that far, denying the alleged equities of plaintiffs. The question of the extent of the easement may be then tried upon a full hearing of the facts on each side. The complaint itself, we are of opinion, sets up a prima facie case for a temporary injunction, and this in consideration of the fact that the district judge examined the premises, and had an opportunity to form a conclusion which is not afforded to this court.

We do not,N discover that there was an abuse of discretion by the judge of the court below. (See cases cited in Klein v. Davis.}

The order granting the temporary injunction is affirmed.

Affirmed.

Blake, C. J., and Hakwood, J., concur.