MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by plaintiff on July 20, 1920, to quiet title to three unpatented mining claims situated in Meagher county, and designated as the Aubrey A, the Mary B, and the Richard T, the first two of which were located on December 14, 1918, and the last on December 21, 1918, by one Haines, predecessor of plaintiff. The complaint states a cause of action with reference to each claim in the form appropriate to present the issues usually tried in such actions. There is [44]*44also a cause of action with reference to each claim asking injunctive relief to restrain trespasses by the defendants pending a trial on the merits. Upon the filing of the complaint the court issued the injunction as prayed for, without notice, requiring the defendants, however, to execute an undertaking in the sum of $250. Later, the penalty of the undertaking was increased to $25,000. The defendants, other than Stohr and Luhrsen, appeared and filed their answers on July 29, and at the same time moved the court for a dissolution of the injunction. The defendants Huxley and Richard Manger disclaimed any interest in the premises in controversy. The defendants Danaher and Tower put in issue the allegations of the complaint and disclaimed any interest in the ground covered by plaintiff’s claims, except so far as they are in conflict with two unpatented claims designated by them as the Iron Master and Legal Tender. With respect to these, they alleged that they were in possession and entitled to the possession of them as lessees of the defendant Clara Manger, who is the true owner. Clara Manger, after putting in issue the allegations of the complaint, alleged that she is the owner of the Iron Master and the Legal Tender claims under and by virtue of locations of them made by defendant Huxley, her predecessor in interest, on January 17 and 18, respectively, 1917. The defendants Stohr and Luhrsen made no appearance. The defendant Mahurin filed a separate answer and cross-complaint in which, besides controverting the allegations of both the plaintiff and the defendants other than Huxley and Richard Manger, asserted title in himself under two unpatented claims designated as the Marble and Tipperary, the former of which was located on December 1, 1917, and the latter on January 22. 1918. There is no controversy but that the several claims mentioned cover the same ground. The motion to dissolve the injunction came on for hearing by the court on September 7, 1920. Defendants assumed the burden of proof and introduced both oral and documentary evidence. The plaintiffs also introduced oral and documentary evidence. At the close of [45]*45the hearing the court made its order refusing to dissolve the injunction. The answering defendants, other than Mahurin, have appealed.
At the opening of their brief, counsel for defendants suggest that the complaint does not state a cause of action because [1] it does not allege that the defendants are insolvent. The only value which a mining claim has, speaking generally, is the mineral contained in it. Therefore trespass upon it for the purpose of extracting ore—which is the charge here—tends to exhaust it, thus doing it an irreparable injury. The purpose of an injunction in such ease is to preserve the estate pending the determination of the question of title. In other words, its purpose is to prevent the diminution of the value of the estate until the question of title is determined, so that the plaintiff, if successful, may have it unimpaired at the end of the litigation. An allegation of insolvency is, therefore, wholly immaterial. (Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53; 2 Lindley on Mines, 3d ed., sec. 872.)
The principal contention made by counsel-is addressed entirely to the ultimate question: Who, in fact, is the owner of the ground in controversy? rather than to the question whether the court wisely exercised its discretion in continuing the injunction in force until the determination of the question of title by a trial on the merits. Conceding that the court properly [2] issued the injunction in the first place, defendants insist that it appears from the evidence introduced by them, which was not disputed by plaintiff, that the Legal Tender and Iron Master claims were located prior to those of the plaintiff; that the plaintiff and his predecessor both had constructive as well as actual notice of these locations when Haines attempted to make those of plaintiff; that defendants made their discovery before they made their locations, which appears both by the testimony of witnesses introduced and by the ■recitals in their recorded notices, which are prima facie evidence of all the facts properly recited therein; and hence, that the court erred in refusing to dissolve the injunction. [46]*46In making this contention, counsel proceed upon the theory that whatever defects in defendants’ locations may have been disclosed by the testimony of plaintiff’s witnesses, the foregoing evidence clearly showed that defendants were vested with the title as against plaintiff’s, and therefore, that the injunction should have been vacated. In support of their contention they cite several cases, among them Clark-Montana Realty Co. v. Butte & Superior Copper Co., 233 Fed. 547, decided by the United States district court for the district of Montana (s. c., 248 Fed. 609, 160 C. C. A. 509) and Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U. S. 12, 26, 63 L. Ed. 447, 39 Sup. Ct. Rep. 231; Yosemite etc. Mill. Co. v. Emerson, 208 U. S. 25, 30, 52 L. Ed. 374, 28 Sup. Ct. Rep. 196; [see, also, Rose’s U. S. Notes], and Sturtevant v. Vogel, 167 Fed. 448, 93 C. C. A. 84. There is no question but that these eases furnish support for the contention made by counsel. To accept the doctrine announced by them, however, would necessitate the overturning of the rule which has been observed by this court throughout its existence, viz., that the validity of a location of a mining claim depends upon a substantial compliance by the locator not only with the requirements of the federal statutes, but also those of the state statute. While the notice of location is prima facie evidence of all facts properly recited therein (Rev. Codes, sec. 2284), nevertheless, the prima facie case made by it does not prevent an attack upon it by showing that the mandatory provisions of the statute declaring what steps are necessary to make a valid location have not in fact been complied with. (Belk v. Meagher, 3 Mont. 65; Russell v. Hoyt, 4 Mont. 412, 2 Pac. 25; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Hamilton v. Huson, 21 Mont. 9, 53 Pac. 101; Mares v. Dillon, 30 Mont. 117, 75 Pac. 963; Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, 81 Pac. 806; Ferris v. McNally, 45 Mont. 20, 121 Pac. 889.)
It is true that the legislature in the passage of the Act [3] approved February 18, 1907 (Rev. Codes, sees. 2283-[47]*472296), relaxed somewhat the stringency of the rule established by these eases.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by plaintiff on July 20, 1920, to quiet title to three unpatented mining claims situated in Meagher county, and designated as the Aubrey A, the Mary B, and the Richard T, the first two of which were located on December 14, 1918, and the last on December 21, 1918, by one Haines, predecessor of plaintiff. The complaint states a cause of action with reference to each claim in the form appropriate to present the issues usually tried in such actions. There is [44]*44also a cause of action with reference to each claim asking injunctive relief to restrain trespasses by the defendants pending a trial on the merits. Upon the filing of the complaint the court issued the injunction as prayed for, without notice, requiring the defendants, however, to execute an undertaking in the sum of $250. Later, the penalty of the undertaking was increased to $25,000. The defendants, other than Stohr and Luhrsen, appeared and filed their answers on July 29, and at the same time moved the court for a dissolution of the injunction. The defendants Huxley and Richard Manger disclaimed any interest in the premises in controversy. The defendants Danaher and Tower put in issue the allegations of the complaint and disclaimed any interest in the ground covered by plaintiff’s claims, except so far as they are in conflict with two unpatented claims designated by them as the Iron Master and Legal Tender. With respect to these, they alleged that they were in possession and entitled to the possession of them as lessees of the defendant Clara Manger, who is the true owner. Clara Manger, after putting in issue the allegations of the complaint, alleged that she is the owner of the Iron Master and the Legal Tender claims under and by virtue of locations of them made by defendant Huxley, her predecessor in interest, on January 17 and 18, respectively, 1917. The defendants Stohr and Luhrsen made no appearance. The defendant Mahurin filed a separate answer and cross-complaint in which, besides controverting the allegations of both the plaintiff and the defendants other than Huxley and Richard Manger, asserted title in himself under two unpatented claims designated as the Marble and Tipperary, the former of which was located on December 1, 1917, and the latter on January 22. 1918. There is no controversy but that the several claims mentioned cover the same ground. The motion to dissolve the injunction came on for hearing by the court on September 7, 1920. Defendants assumed the burden of proof and introduced both oral and documentary evidence. The plaintiffs also introduced oral and documentary evidence. At the close of [45]*45the hearing the court made its order refusing to dissolve the injunction. The answering defendants, other than Mahurin, have appealed.
At the opening of their brief, counsel for defendants suggest that the complaint does not state a cause of action because [1] it does not allege that the defendants are insolvent. The only value which a mining claim has, speaking generally, is the mineral contained in it. Therefore trespass upon it for the purpose of extracting ore—which is the charge here—tends to exhaust it, thus doing it an irreparable injury. The purpose of an injunction in such ease is to preserve the estate pending the determination of the question of title. In other words, its purpose is to prevent the diminution of the value of the estate until the question of title is determined, so that the plaintiff, if successful, may have it unimpaired at the end of the litigation. An allegation of insolvency is, therefore, wholly immaterial. (Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53; 2 Lindley on Mines, 3d ed., sec. 872.)
The principal contention made by counsel-is addressed entirely to the ultimate question: Who, in fact, is the owner of the ground in controversy? rather than to the question whether the court wisely exercised its discretion in continuing the injunction in force until the determination of the question of title by a trial on the merits. Conceding that the court properly [2] issued the injunction in the first place, defendants insist that it appears from the evidence introduced by them, which was not disputed by plaintiff, that the Legal Tender and Iron Master claims were located prior to those of the plaintiff; that the plaintiff and his predecessor both had constructive as well as actual notice of these locations when Haines attempted to make those of plaintiff; that defendants made their discovery before they made their locations, which appears both by the testimony of witnesses introduced and by the ■recitals in their recorded notices, which are prima facie evidence of all the facts properly recited therein; and hence, that the court erred in refusing to dissolve the injunction. [46]*46In making this contention, counsel proceed upon the theory that whatever defects in defendants’ locations may have been disclosed by the testimony of plaintiff’s witnesses, the foregoing evidence clearly showed that defendants were vested with the title as against plaintiff’s, and therefore, that the injunction should have been vacated. In support of their contention they cite several cases, among them Clark-Montana Realty Co. v. Butte & Superior Copper Co., 233 Fed. 547, decided by the United States district court for the district of Montana (s. c., 248 Fed. 609, 160 C. C. A. 509) and Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U. S. 12, 26, 63 L. Ed. 447, 39 Sup. Ct. Rep. 231; Yosemite etc. Mill. Co. v. Emerson, 208 U. S. 25, 30, 52 L. Ed. 374, 28 Sup. Ct. Rep. 196; [see, also, Rose’s U. S. Notes], and Sturtevant v. Vogel, 167 Fed. 448, 93 C. C. A. 84. There is no question but that these eases furnish support for the contention made by counsel. To accept the doctrine announced by them, however, would necessitate the overturning of the rule which has been observed by this court throughout its existence, viz., that the validity of a location of a mining claim depends upon a substantial compliance by the locator not only with the requirements of the federal statutes, but also those of the state statute. While the notice of location is prima facie evidence of all facts properly recited therein (Rev. Codes, sec. 2284), nevertheless, the prima facie case made by it does not prevent an attack upon it by showing that the mandatory provisions of the statute declaring what steps are necessary to make a valid location have not in fact been complied with. (Belk v. Meagher, 3 Mont. 65; Russell v. Hoyt, 4 Mont. 412, 2 Pac. 25; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Hamilton v. Huson, 21 Mont. 9, 53 Pac. 101; Mares v. Dillon, 30 Mont. 117, 75 Pac. 963; Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, 81 Pac. 806; Ferris v. McNally, 45 Mont. 20, 121 Pac. 889.)
It is true that the legislature in the passage of the Act [3] approved February 18, 1907 (Rev. Codes, sees. 2283-[47]*472296), relaxed somewhat the stringency of the rule established by these eases. It validated the locations theretofore made which did not comply with the requirements of the laws in force up to that time, provided the rights of third persons had not intervened prior to the passage of the Act, and the making and recording of such locations conformed to its requirements. (Sec. 2292.) Section 2293 declares that the Act “shall not be deemed mandatory” with reference to the period of time within which an act should be done, if it shall be performed “before the rights of third persons have intervened,” and that “no defect in the posted or recorded certificate shall be deemed material except as against one who has located the same ground or some portion thereof in good faith without notice.” "This legislation does not relax the rule further than to direct the courts to disregard defects or irregularities in the posted and recorded notice, and the failure to do any of the other acts made necessary to complete a location, when it appears that such acts have in fact been done before a location of the same ground has been made by another. It does not declare that a failure to do the other acts required to perfect a location shall not invalidate it. In this respect it merely declares that the period of time prescribed within which an act may be performed shall not be deemed mandatory if it is performed before the rights of third parties have intervened. It does not purport to excuse the performance of the act, even though the subsequent locator has notice of a prior location which does not comply with the statute. The case of Heilman v. Loughrin, 57 Mont. 380, 188 Pac. 370, cited by counsel, does not hold to the contrary. Therefore, the rule announced in the other cases cited by counsel is not applicable under the statute of this state.
The reason underlying the decisions of this court cited supra, is that the locator shall demonstrate his good faith by performing the several acts substantially as required by the statute, before he can effectively assert, as against any other citizen, an exclusive right to the portion of the public domain covered by his alleged location. The statute supra, in relaxing the rule [48]*48only, in the respects noted, impliedly affirms it in all other respects. To sustain the contention of counsel would require this court to determine finally the question of title, whereas the district court did not undertake to determine it, but merely whether, there being a controversy over the title, it should exercise its discretion in preserving the property until it could finally determine this question upon a trial on the merits.
There was evidence to the effect that Huxley, the locator of the Legal Tender and the Iron Master claims, did nothing more than to post his notices and mark the boundaries, having appropriated as the excavations which he should have made, as required by section 2283 of the Revised Codes, those which had been made by others years before in locating and endeavoring to develop the same ground, subsequently abandoned. [4] There was also evidence that no other substantial work was thereafter done. There was a sharp conflict in the evidence on this point and therefore on the question of title to the ground in controversy. Under the rule announced in many decisions by this and other courts, the district court properly exercised its discretion' in continuing the injunction, especially since the court had required the plaintiff to give ample security to protect the defendants against possible loss. (Boyd v. Desrozier, supra; Parrot Silver & Capper Co. v. Heinze, 25 Mont. 139, 87 Am. St. Rep. 386, 53 L. R. A. 491, 64 Pac. 326; Maloney v. King, 25 Mont. 188, 64 Pac. 351; Heinze v. Boston & Mont. C. Copper & Silver Min. Co., 30 Mont. 484, 77 Pac. 421; Lowery v. Cole, 47 Mont. 64, 130 Pac. 410; Consolidated Gold & S. Min. Co. v. Struthers, 41 Mont. 551, 111 Pac. 150; Twenty-one Min. Co. v. Original Sixteen to One Mine, 240 Fed. 106, 153 C. C. A. 142, and eases cited.)
Counsel contend that since it appeared from the evidence [5] that after the injunction was issued and pending the hearing of the motion, plaintiff entered upon the ground and engaged in mining operations thereon, the injunction should have been dissolved as of course. It appeared that after the injunction was issued, employees of plaintiff did some work [49]*49in the way of enlarging some of the excavations on the ground, but it does not appear that these operations were continuing at the time of the hearing or that any ore had been or was being removed. The evidence ■ in this connection is at best meager. It is entirely consistent with the notion that the work was done for the purpose of annual representation and not for the extraction and removal of ore. But let it be assumed that the purpose of the work was to extract and remove ore and that plaintiff in doing it was guilty of an abuse of the process of the court, as counsel contend (Vanzandt v. Argentine Min. Co., 48 Fed. 770), this conduct was reprehensible; but it does not therefore follow., that the court should have dissolved the injunction. If it had done so, plaintiff would have no cause to complain, for he could not insist that the court was in error in refusing to exercise its discretionary power in his favor under these circumstances. It does not appear, however, that this feature of the evidence was called to the attention of the court, or that defendants asked that the injunction be made reciprocal, or that it be modified in any respect. If its attention had been called to it, doubtless the court would have modified the injunction so as to prevent any work being done on the ground other than annual representation work until a trial of the question of title and a final decree determining it. If the defendants desired to preserve the status quo pending the litigation, they should have applied to the court for a modification of the injunction so that it would accomplish this purpose.
Counsel say also that, as the injunction stands, it prevents [6] defendants from doing their annual representation work. Here again the proper course for defendants to have pursued was to apply to the court for a modification of the injunction so as to permit this. If, at any time pending the litigation, it becomes necessary to perform such work, upon proper application to the court permission will doubtless be granted. That the injunction is broader in its terms than it should have been is no reason why this court should reverse the lower court in [50]*50issuing it, especially so as it is not apparent that objection on this ground at the time the motion to dissolve it was submitted.
The order is affirmed.
rA ¡firmed.
Associate 'Justices Reynolds, Cooper, Holloway and Galen concur.