.MR. CHIEF JUSTICE BRANTLY,
after stating the case, delivered the opinion of the court.
.It is apparent from the foregoing statement of the contentions of the parties as to the physical facts touching the situation of the veins in controversy that there is a wide difference between them as to their relative rights. If the plaintiff^ contention be sustained, then veins 7 and 10 certainly belong to it, and the relators were properly convicted, whatever conclusion might be reached as to the ownership of vein No. 3 below the alleged union on the dip between it and the discovery vein. On the other hand, if the relator corporation be upheld in its claim, veins 3, 7 and 10 belong to it, and the judgment of conviction may not stand.
It is not proper for this court in this proceeding to analyze the evidence touching the question of ownership, or to express any opinion thereon. The theory upon vdiich the plaintiff proceeded, and in which it was sustained in the district court, is that the decree in the Pennsylvania Case embraced these veins, though it does not specifically describe them, because developments made subsequent to its rendition demonstrate that they are parts of the veins specifically described. As to veins 7 and 10, and the portion of 3 eastward of where it unites with the discovery vein on the strike, the plaintiff says the facts are conclusive. To determine the correctness of this claim requires an examination of the issues involved in that cause, and an ascertainment of what falls within the description contained in [107]*107the decree. We have set forth in the statement the substance of the description. It does not extend, in terms, to any other vein or veins involved in the controversy than the discovery vein and those which appear to the north. It designates only certain points along the dip. and strike of the former, and declares the plaintiff to be the owner of it to the depths. It does not refer to- any vein or veins to the south, nor, though it has incorporated in it the findings of fact made by the court, does it refer indirectly to any such veins. This would not matter if the evidence tended merely to show trespass by the defendant corporation upon the same vein or veins at lower depths. Subsequent developments, however, tend to show conditions which could not have been contemplated by the parties or the court at the time the decree was rendered. Bor illustration: No. 3 vein is not mentioned in the decree, yet the facts adduced at the hearing tend to show that it has its apex in the southern part of the Pennsylvania claim. To determine its ownership would require, upon proper issues, a determination of the question where the apex actually is, as well as the fact of the union between it and the discovery vein, and also the relative priorities of the dates of the Pennsylvania and Jolmstown-Earus locations. This determination would also require a consideration and determination of the fact whether or not the alleged overtopping vein is identical with the discovery vein, for upon a determination of these and other facts would depend the ownership of the united vein. There would be involved, also, an inquiry whether the defendant corporation has extralateral rights upon No. 3 vein. If there is in fact no union between these veins, then the defendant corporation is without question the owner of No. 3 vein. If there is a union of them on their strike toward the east, and they become one from that point, still this does not determine the ownership of No. 3 to the west of the point of union — the very portion of it where the alleged trespasses have occurred.
It may be said, also, of the other two veins in controversy, that, if their apices are to be found in the Pennsylvania, claim, ■as they rise up to the fault or surface to the south of the dis[108]*108covery vein, or vein No. 11, according to the theory of the relators, then they are the property of the relator corporation.
It cannot be said of the evidence that it demonstrates the plantiff’s ownership of any of these veins. This court would hesitate to so find upon the facts in this record, even in an action brought for the purpose of determining the question of ownership. Much of it is speculative in character, and is based upon projections made upon conclusions from facts observed in workings remote, in some instances, by hundreds of feet from the particular points in controversy. Under these circumstances the conviction should not be sustained.
One fact, however, appearing’ from the record of the Pennsylvania Vase, demonstrates that the action of the district court in this proceeding cannot be justified. The pleadings presenting the issues in the Pennsylvania Case were introduced in evidence. From them it is apparent that the points in controversy here were not involved in the action, and therefore could not have been embraced by the decree. At the close of the evidence the plaintiff' asked and obtained leave to- amend the complaint. The amendment was made. This required an amendment to the answer, which set up -the fact, as matter in abatement of the action (see statement preceding opinion in Montana Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114), that the suit had been brought originally as an action at law for damages for trespass by the defendants upon the points in controversy in the action, and equitable relief had been sought only as ancillary to the law action; and that, as the action had been dismissed as to the count for damages, the count for ancillary relief should also be dismissed. A count for damages set up- in the original complaint had, as a matter of fact, been dismissed, and the defendant thus sought to have the action abate as a wdiole. The replication of the plaintiff to this answer contained the following: “And plaintiff denies that at the time of the commencement of this action it commenced an action at law to recover from the defendant for alleged trespass upon the veins claimed in this action by the plaintiff, or [109]*109that it made the allegations therein which are stated in defendant’s answer to plaintiff’s amendments to its complaint, "but avers the fact to be that at the time of the commencement of this action there were included in the complaint two causes of action — one at law for the recovery of damages for ores extracted by the defendant from veins within the Pennsylvania lode claim, which were alleged to have their tops or apices in the Johnstown lode claim, and the parcel of ground owned by the plaintiff; that said veins referred to in said cause of action lie far to the south of the veins which have been developed by the workings made by the plaintiff within the Pennsylvania lode claim.” Inasmuch as the court found all the issues for the plaintiff, and the evidence in this record shows conclusively that these veins are the only ones within the Pennsylvania claim south of the' discovery vein, it is manifest that they were excluded from the issues, and hence the title to them could not have been determined.
Under the circumstances presented in this record, contempt proceedings are not the appropriate remedy. Where the title to property has' been once finally adjudicated, and it appears from the judgment record, or from the record supplemented, if necessary, by evidence identifj’ing the subject-matter, that this is the case, and that the defendant has been enjoined from further interference, contempt proceedings must be resorted to. (Montana Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 27 Mont. 410, 71 Pac.
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.MR. CHIEF JUSTICE BRANTLY,
after stating the case, delivered the opinion of the court.
.It is apparent from the foregoing statement of the contentions of the parties as to the physical facts touching the situation of the veins in controversy that there is a wide difference between them as to their relative rights. If the plaintiff^ contention be sustained, then veins 7 and 10 certainly belong to it, and the relators were properly convicted, whatever conclusion might be reached as to the ownership of vein No. 3 below the alleged union on the dip between it and the discovery vein. On the other hand, if the relator corporation be upheld in its claim, veins 3, 7 and 10 belong to it, and the judgment of conviction may not stand.
It is not proper for this court in this proceeding to analyze the evidence touching the question of ownership, or to express any opinion thereon. The theory upon vdiich the plaintiff proceeded, and in which it was sustained in the district court, is that the decree in the Pennsylvania Case embraced these veins, though it does not specifically describe them, because developments made subsequent to its rendition demonstrate that they are parts of the veins specifically described. As to veins 7 and 10, and the portion of 3 eastward of where it unites with the discovery vein on the strike, the plaintiff says the facts are conclusive. To determine the correctness of this claim requires an examination of the issues involved in that cause, and an ascertainment of what falls within the description contained in [107]*107the decree. We have set forth in the statement the substance of the description. It does not extend, in terms, to any other vein or veins involved in the controversy than the discovery vein and those which appear to the north. It designates only certain points along the dip. and strike of the former, and declares the plaintiff to be the owner of it to the depths. It does not refer to- any vein or veins to the south, nor, though it has incorporated in it the findings of fact made by the court, does it refer indirectly to any such veins. This would not matter if the evidence tended merely to show trespass by the defendant corporation upon the same vein or veins at lower depths. Subsequent developments, however, tend to show conditions which could not have been contemplated by the parties or the court at the time the decree was rendered. Bor illustration: No. 3 vein is not mentioned in the decree, yet the facts adduced at the hearing tend to show that it has its apex in the southern part of the Pennsylvania claim. To determine its ownership would require, upon proper issues, a determination of the question where the apex actually is, as well as the fact of the union between it and the discovery vein, and also the relative priorities of the dates of the Pennsylvania and Jolmstown-Earus locations. This determination would also require a consideration and determination of the fact whether or not the alleged overtopping vein is identical with the discovery vein, for upon a determination of these and other facts would depend the ownership of the united vein. There would be involved, also, an inquiry whether the defendant corporation has extralateral rights upon No. 3 vein. If there is in fact no union between these veins, then the defendant corporation is without question the owner of No. 3 vein. If there is a union of them on their strike toward the east, and they become one from that point, still this does not determine the ownership of No. 3 to the west of the point of union — the very portion of it where the alleged trespasses have occurred.
It may be said, also, of the other two veins in controversy, that, if their apices are to be found in the Pennsylvania, claim, ■as they rise up to the fault or surface to the south of the dis[108]*108covery vein, or vein No. 11, according to the theory of the relators, then they are the property of the relator corporation.
It cannot be said of the evidence that it demonstrates the plantiff’s ownership of any of these veins. This court would hesitate to so find upon the facts in this record, even in an action brought for the purpose of determining the question of ownership. Much of it is speculative in character, and is based upon projections made upon conclusions from facts observed in workings remote, in some instances, by hundreds of feet from the particular points in controversy. Under these circumstances the conviction should not be sustained.
One fact, however, appearing’ from the record of the Pennsylvania Vase, demonstrates that the action of the district court in this proceeding cannot be justified. The pleadings presenting the issues in the Pennsylvania Case were introduced in evidence. From them it is apparent that the points in controversy here were not involved in the action, and therefore could not have been embraced by the decree. At the close of the evidence the plaintiff' asked and obtained leave to- amend the complaint. The amendment was made. This required an amendment to the answer, which set up -the fact, as matter in abatement of the action (see statement preceding opinion in Montana Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114), that the suit had been brought originally as an action at law for damages for trespass by the defendants upon the points in controversy in the action, and equitable relief had been sought only as ancillary to the law action; and that, as the action had been dismissed as to the count for damages, the count for ancillary relief should also be dismissed. A count for damages set up- in the original complaint had, as a matter of fact, been dismissed, and the defendant thus sought to have the action abate as a wdiole. The replication of the plaintiff to this answer contained the following: “And plaintiff denies that at the time of the commencement of this action it commenced an action at law to recover from the defendant for alleged trespass upon the veins claimed in this action by the plaintiff, or [109]*109that it made the allegations therein which are stated in defendant’s answer to plaintiff’s amendments to its complaint, "but avers the fact to be that at the time of the commencement of this action there were included in the complaint two causes of action — one at law for the recovery of damages for ores extracted by the defendant from veins within the Pennsylvania lode claim, which were alleged to have their tops or apices in the Johnstown lode claim, and the parcel of ground owned by the plaintiff; that said veins referred to in said cause of action lie far to the south of the veins which have been developed by the workings made by the plaintiff within the Pennsylvania lode claim.” Inasmuch as the court found all the issues for the plaintiff, and the evidence in this record shows conclusively that these veins are the only ones within the Pennsylvania claim south of the' discovery vein, it is manifest that they were excluded from the issues, and hence the title to them could not have been determined.
Under the circumstances presented in this record, contempt proceedings are not the appropriate remedy. Where the title to property has' been once finally adjudicated, and it appears from the judgment record, or from the record supplemented, if necessary, by evidence identifj’ing the subject-matter, that this is the case, and that the defendant has been enjoined from further interference, contempt proceedings must be resorted to. (Montana Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 27 Mont. 410, 71 Pac. 403.) This was held in the case cited with reference to the same veins now in controversy, the theory of this court being that, as the complaint alleged ownership in the plaintiff under the decree rendered in the Pennsylvania Case (27 Mont. 288, 70 Pac. 1114), it would be most effectively enforced to prevent trespass in violation of the injunction contained therein by contempt proceedings, these furnishing a complete and adequate remedy. Now, it appears that the claim made in that case is not true, and that contempt proceedings have been resorted to to adjudicate and settle title to property in no way affected by the decree. This may not bo [110]*110done. ' Such proceedings are not appropriate. For this purpose there must be issues presented by formal pleadings in an appropriate form of action at law or in equity, after due notice, when the parties may be heard in the usual way. And it must always be the case where there is a bona fide controversy as to ownership of property which has not been adjudicated; otherwise a party might be summarily deprived of his property without due process of law. This rule may be deduced from the following authorities: Ex parte Hollis, 59 Cal. 405; State ex rel. Boardman v. Ball, 5 Wash. 387, 31 Pac. 975, 34 Am. St. Rep. 866; Wirt v. Brown, (C. C.) 30 Fed. 187; Onderdonk v. Fanning, (C. C.) 2 Fed. 568; Temple Pump Co. v. Goss Pump & R. B. Mfg. Co., (C. C.) 31 Fed. 292; Baldwin v. Hosmer, 101 Mich. 119, 59 N. W. 432, 25 L. R. A. 739; In re Paschal, 10 Wall. 483, 19 L. Ed. 992; Beach on Receivers, Sec. 241.
Counsel for respondents in this proceeding invoke the rule that “a judgment- is conclusive upon the parties, not only as to such matters as were in fact determined in the proceeding, but as to every other matter which the parties might have litigated incident to or essentially connected with the subject-mattér in litigation, whether the same, as a matter of fact, were or were not considered.” We shall not now stop to consider whether this is a correct statement of the rule under the statute and the decisions of the state. (Code of Civil Procedure, Sec. 3196-; Campbell v. Rankin, 2 Mont. 369,; Meyendorf v. Frohner, 3 Mont. 318; Kleinschmidt v. Binzel, 14 Mont. 54, 35 Pac. 460, 43 Am. St. Rep. 604.) As we have already pointed out, the rule does not apply to the circumstances of this controversy, for the reason that the issues in the case in which the decree was rendered expressly excluded a consideration of the situation, and ownership of the veins in dispute.
Counsel for relators have devoted a' considerable portion of |their argument to questions touching rulings of the court in admitting and excluding evidence upon the hearing in this proceeding in the court below. As the order must be vacated, it is not necessary to consider these questions.
[111]*111The order of the district court is vacated with directions to dismiss the proceeding.
Order vacated.
Mr. Justice Holloway:
In order to support a conviction in a contempt proceeding, the proof of guilt ought to be clear and convincing, leaving no reasonable doubt of such guilt. For the reason that the judgment roll in the Pennsylvania Case, together with the other evidence received on the hearing in this proceeding, does not furnish that convincing proof that veins 3, I and 10 ivere adjudicated in the Pennsylvania Case, I agree with the order vacating the order of the district court holding relators guilty of a violation of the decree in that case.
Nothing said in the determination of this proceeding should be susceptible of any interpretation which would apparently indicate an opinion of the court as to the actual ownership' of the ore bodies- in controversy, or as to the effect of the testimony given, aside from holding it insufficient to support the order of the court-below.