By the Court,
Talbot, J.:
This is an appeal from an order denying defendant’s motion to dissolve a preliminary injunction, which had been granted at the time of the commencement of the action. In issuing the injunction, and in refusing the motion for its dissolution, the court considered the complaint and affidavits which were presented by the respective parties.
It is alleged that the plaintiff holds the patent from the State of Nevada to 160 acres of agricultural land, through the application and contract of the plaintiff’s grantor; that for many years prior to 1890 the Holmes Mining Company operated mills and mining machinery for the reduction of ores, by which a large amount of tailings were produced and impounded on the land, and that these ever since have remained in place in one body, to the amount of between 400,000 and 500,000 tons, of the value of $5 per ton; that the tailings have never been abandoned, and that they were duly sold by the sheriff to the plaintiff under a writ of execution in the suit of the Southern Nevada Gold and Silver Mining-Company against the Holmes Mining Company; that in August, 1904, the original defendants in the present action, who have since conveyed to the Belleville Placer Mining Company, located the ground upon which the tailings were situated as a placer claim, and publicly asserted that the deposit of the tailings converted the ground into mineral land, subject to placer location under the United States mineral laws; that the defendants, claiming a right, title, and interest in the tailings by reason of the placer location, in August, 1904, unlawfully entered upon the land, and proceeded to excavate and remove some of the tailings where the same were impounded by the former owners thereof; that the tailings were not the subject of mineral entry as a placer claim or otherwise; that the land was not mineral land, and that the tailings were and are the private property of the plaintiff, and were the property of the Holmes Mining Company until the title and possession passed by the sheriff’s sale to the plaintiff; that the defendants [236]*236threatened, to continue to trespass upon the land and commit waste by excavating and removing the tailings, to the great and irreparable damage of the plaintiff; that when the tailings are removed, the land itself is practically valueless for any purpose; and that the plaintiff would be irreparably injured by tbe carrying out of the threats of the defendant, and could not be compensated in damages.
The affidavits which were used upon the hearing of the motion raise a conflict as to a question of fact relating to whether the tailings had been impounded or abandoned by the Holmes Mining Company. Among other contentions, it is claimed on behalf of the defendant that the complaint does not state facts constituting a cause of action or warranting the issuance of an injunction; that under the case of Rogers v. Cooney, 7 Nev. 213, the tailings mineralized the land, so that it became subject to location as a placer claim, and that under the provisions in the patent reserving the mineral, and giving to others than tbe patentee the right to prospect and locate mines on the land, and under the decision in Stanley v. Mineral Union, 26 Nev. 55, the defendant is entitled to hold the tailings under the placer location. The plaintiff relies upon the same cases which are cited by the defendant; and, considering two or three of these for examples, the circumstances were different from those admitted or so far established in the present case. In Rogers v. Cooney it appeared that the tailings had not been impounded, and had been abandoned by the mill and the owners of the ore by which they had been produced, in distinction of the claim of the plaintiff here that the tailings in controversy were impounded, and not abandoned, and were sold to the plaintiff. In Ritter v. Lynch, (C. C.) 123 Fed. 931, the tailings were held by the owner, who had retained them in a reservoir against the locator of the placer claim; and, until there is a final determination of the facts, it is not clear whether that case is applicable. In Stanley v. Mineral Union no question relating to tailings was involved, and the plaintiff admits that under that decision and an agricultural patent issued by the state, such as the one held by the plaintiff, mines may be located and held by prospectors.
[237]*237It is apparent that important questions of fact and law which the district judge may well have considered doubtful are presented, the determination of which, if made now, might settle the controlling issues in advance of the trial. It is said that a temporary restraining order should not be granted unless it clearly appears that the plaintiff is entitled to it; but we have adopted heretofore a more liberal rule, and one under' which the rights of the parties, if the circumstances warrant, in the sound discretion of the court, may be better protected. Section 112 of the practice act (Stats. 1869, c. 112) provides: "An injunction may be granted in the following cases: First — When it shall appear 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 con: tinuance of the act complained of either for a limited period or perpetually. Second — When it shall appear by the complaint or affidavit that the commission or continuance of some act, during the litigation, would produce great or irreparable injury to the plaintiff. Third — When it shall appear, during the litigation, that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual.”
In Marino v. Williams, 30 Nev. 372, we say: "Nevertheless, it may be said that, under the circumstances, the temporary injunction to run until the further order of the court was not improperly granted, and that its dissolution was not erroneously refused; if the judge entertained serious doubts regarding the final right of the plaintiff to have a restraining order. Courts have often held that an injunction ought not to be granted unless the applicant shows clearly that he is entitled to one, but other tribunals take the view that it depends largely upon a sound discretion and the circumstances, such as the relative inconvenience and injury that may result to the parties, and that where there is grave doubt in relation to the law or the facts, a temporary injunction maybe granted, to prevent great hardship or irreparable damage, until there is a hearing or determination.” (Harriman v. Northern Securities Co., 132 Fed. 464, and cases there cited.) In the latter case it [238]*238was said: " The balance of convenience or hardship ordinarily is a factor of controlling importance in cases of substantial doubt existing at the time of granting or refusing the preliminary injunction. Such doubt may relate either to the facts or to the law of the case, or to both. It may equally attach to, or widely vary in degree as between, the showing of the complainant and that of the defendant, without necessarily being determinative of the propriety of allowing or denying the injunction.
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By the Court,
Talbot, J.:
This is an appeal from an order denying defendant’s motion to dissolve a preliminary injunction, which had been granted at the time of the commencement of the action. In issuing the injunction, and in refusing the motion for its dissolution, the court considered the complaint and affidavits which were presented by the respective parties.
It is alleged that the plaintiff holds the patent from the State of Nevada to 160 acres of agricultural land, through the application and contract of the plaintiff’s grantor; that for many years prior to 1890 the Holmes Mining Company operated mills and mining machinery for the reduction of ores, by which a large amount of tailings were produced and impounded on the land, and that these ever since have remained in place in one body, to the amount of between 400,000 and 500,000 tons, of the value of $5 per ton; that the tailings have never been abandoned, and that they were duly sold by the sheriff to the plaintiff under a writ of execution in the suit of the Southern Nevada Gold and Silver Mining-Company against the Holmes Mining Company; that in August, 1904, the original defendants in the present action, who have since conveyed to the Belleville Placer Mining Company, located the ground upon which the tailings were situated as a placer claim, and publicly asserted that the deposit of the tailings converted the ground into mineral land, subject to placer location under the United States mineral laws; that the defendants, claiming a right, title, and interest in the tailings by reason of the placer location, in August, 1904, unlawfully entered upon the land, and proceeded to excavate and remove some of the tailings where the same were impounded by the former owners thereof; that the tailings were not the subject of mineral entry as a placer claim or otherwise; that the land was not mineral land, and that the tailings were and are the private property of the plaintiff, and were the property of the Holmes Mining Company until the title and possession passed by the sheriff’s sale to the plaintiff; that the defendants [236]*236threatened, to continue to trespass upon the land and commit waste by excavating and removing the tailings, to the great and irreparable damage of the plaintiff; that when the tailings are removed, the land itself is practically valueless for any purpose; and that the plaintiff would be irreparably injured by tbe carrying out of the threats of the defendant, and could not be compensated in damages.
The affidavits which were used upon the hearing of the motion raise a conflict as to a question of fact relating to whether the tailings had been impounded or abandoned by the Holmes Mining Company. Among other contentions, it is claimed on behalf of the defendant that the complaint does not state facts constituting a cause of action or warranting the issuance of an injunction; that under the case of Rogers v. Cooney, 7 Nev. 213, the tailings mineralized the land, so that it became subject to location as a placer claim, and that under the provisions in the patent reserving the mineral, and giving to others than tbe patentee the right to prospect and locate mines on the land, and under the decision in Stanley v. Mineral Union, 26 Nev. 55, the defendant is entitled to hold the tailings under the placer location. The plaintiff relies upon the same cases which are cited by the defendant; and, considering two or three of these for examples, the circumstances were different from those admitted or so far established in the present case. In Rogers v. Cooney it appeared that the tailings had not been impounded, and had been abandoned by the mill and the owners of the ore by which they had been produced, in distinction of the claim of the plaintiff here that the tailings in controversy were impounded, and not abandoned, and were sold to the plaintiff. In Ritter v. Lynch, (C. C.) 123 Fed. 931, the tailings were held by the owner, who had retained them in a reservoir against the locator of the placer claim; and, until there is a final determination of the facts, it is not clear whether that case is applicable. In Stanley v. Mineral Union no question relating to tailings was involved, and the plaintiff admits that under that decision and an agricultural patent issued by the state, such as the one held by the plaintiff, mines may be located and held by prospectors.
[237]*237It is apparent that important questions of fact and law which the district judge may well have considered doubtful are presented, the determination of which, if made now, might settle the controlling issues in advance of the trial. It is said that a temporary restraining order should not be granted unless it clearly appears that the plaintiff is entitled to it; but we have adopted heretofore a more liberal rule, and one under' which the rights of the parties, if the circumstances warrant, in the sound discretion of the court, may be better protected. Section 112 of the practice act (Stats. 1869, c. 112) provides: "An injunction may be granted in the following cases: First — When it shall appear 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 con: tinuance of the act complained of either for a limited period or perpetually. Second — When it shall appear by the complaint or affidavit that the commission or continuance of some act, during the litigation, would produce great or irreparable injury to the plaintiff. Third — When it shall appear, during the litigation, that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual.”
In Marino v. Williams, 30 Nev. 372, we say: "Nevertheless, it may be said that, under the circumstances, the temporary injunction to run until the further order of the court was not improperly granted, and that its dissolution was not erroneously refused; if the judge entertained serious doubts regarding the final right of the plaintiff to have a restraining order. Courts have often held that an injunction ought not to be granted unless the applicant shows clearly that he is entitled to one, but other tribunals take the view that it depends largely upon a sound discretion and the circumstances, such as the relative inconvenience and injury that may result to the parties, and that where there is grave doubt in relation to the law or the facts, a temporary injunction maybe granted, to prevent great hardship or irreparable damage, until there is a hearing or determination.” (Harriman v. Northern Securities Co., 132 Fed. 464, and cases there cited.) In the latter case it [238]*238was said: " The balance of convenience or hardship ordinarily is a factor of controlling importance in cases of substantial doubt existing at the time of granting or refusing the preliminary injunction. Such doubt may relate either to the facts or to the law of the case, or to both. It may equally attach to, or widely vary in degree as between, the showing of the complainant and that of the defendant, without necessarily being determinative of the propriety of allowing or denying the injunction. Where, for instance, the effect of the injunction would be disastrous to an established and legitimate business through its destruction or interruption in whole or in part, strong and convincing proof of right on the part of the complainant, and of the urgency of his case, is necessary to justify an exercise of the injunctive power. Where, however, the sole object for which an injunction is sought is the preservation of a fund in controversy, or the maintenance of the status quo, until the question of right between the parties can be decided on final hearing, the injunction properly may be allowed, although there may be serious doubt of the ultimate success of the complainant. Its allowance in the latter case is a provisional measure of suspensive effect, and in aid of such relief, if any, as may be finally decreed to the complainant. These views are supported by abundant authority, to which, were it not for the importance of the case, I should refrain from adverting.
"In Russell v. Farley, 105 U. S. 433, 438, 26 L. Ed. 1060, the court, through Mr. Justice Bradley, said: 'It is a settled rule of the court of chancery, in acting on applications for injunction, to regard the comparative injury which would be sustained by the defendant if an injunction were granted, and by the complainant if it were refused. (Kerr on Injunctions, 209, 210.) And if the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may result in material injury to either party. ’ In City of Newton v. Levis, 79 Fed. 715, 25 C. C. A. 161, the circuit court of appeals for the eighth circuit, through Judge Sanborn, said: 'The granting or withholding of a preliminary injunction rests in the sound judicial discretion of the court, and the only question presented by this appeal is whether or not the court below erred in the exercise of that discretion, under the estab[239]*239lished legal principles which should have guided it. The propriety of its action must be considered from the standpoint of that court. * * * The controlling reason for the existence of the right to issue a preliminary injunction is that the court may thereby prevent such a change' of the conditions and relations of persons and property during the litigation as may result in irremediable injury to some of the parties before their claims can be investigated and adjudicated. , When the questions to be ultimately decided are serious and doubtful, the legal discretion of the judge in granting the writ should be influenced largely by the consideration that the injury to the moving party will be certain, great, and irreparable if the motion is denied, while the inconvenience and loss to the opposing party will be inconsiderable, and may well be indemnified by a proper bond if the injunction is granted.
"A preliminary injunction maintaining the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. * * * The arguments and brief of counsel invite us to a consideration of the questions of law which must be finally determined upon a demurrer to the bill, or upon a final hearing of this case after answer. We have, however, found it unnecessary to decide these questions on1 this appeal, and we express no opinion upon them. They are of sufficient importance and difficulty to demand careful examination and deliberate consideration. In Glascott v. Lang, 3 Myl. & C. 451, 455, Lord Chancellor Cottenham said: 'In looking through the pleadings and the evidence, for the purpose of an injunction, it is not necessary that the court should find a case which would entitle the plaintiff to relief at all events. It is quite sufficient if the court finds, upon the pleadings and upon the evidence, a case which makes the transaction a proper subject of investigation in a court of equity.’ In Hadden v. Dooley, 74 Fed. 429, 431, 20 C. C. A. 494, the circuit court of appeals for the second circuit, through Judge Shipman, said: 'When the questions [240]*240which naturally arise upon the transactions make them a proper subject for deliberate examination, if a stay of proceedings will not result in too great injury to the defendants, it is proper to preserve the existing state of things until the .rights of the parties can' be fairly and fully investigated and determined by evidence and proofs which have the merit of accuracy.’ ”
Under the circumstances, we do not think that it was error to refuse to dissolve the injunction before the time had arrived for finally determining the doubtful and controlling questions involved.
The order of the district court is affirmed.