The Shasta courier., 1866-01-20
DECISION
0fJsaqs Garter IN he case Of Orr q al. rs.
Garland Cd al.
STATE OF CALIFORNIA,

! dieial District at Chambers. In the matter
of the alleged contempt of Court, charged by
John Orr, Oliver Orr, and James McElroy
against Patrick Garland, Timothy Murry,
Michael Shea, Bernard Garland, Dennis
Desmond. Timothy Madden, Morris Lawton
and John Lawton.
The complainants in these proceedings
were the plaintiffs in action brought
against the said Patrick Garland. Michael
Shea and Timothy Murry, for trespass and
wrong committed by the defendants on the
mining claims Of the said plaintiffs, described
in the complaint in that action. That cause
was tried by jury in the District Court Of
this county, and verdict rendered in favor
Of tie plaintiffs, on the 18th day Of March,
1864 whereupon the Court rendered a de
cree of injunction, enjoinng the defendants,
the restraining terms or clause of which is in
the terms following, viz: Therefore it is
considered. adiudged and decreed by the
Court that the defendants and each of them.
their agents, servants and employees and all
persons claiming under them or either of
them, be, and they hereby are, perpetualiy
enioined and restrained from entering upon
or interfering with the mining grounds Do.
scribed in their complaints" :" and then follows
the description Of the same as in the com
plaint A violation of this injunction is
alleged as the contempt. The grievance or
gist Of the complaint is alleged in the ailida
Wit upon which these proceedings are founded,
in the following language. viz: That the
accused, with numerous Chinese employees
and servants. on the ID day of January. 1856.
in violation Of the command Of the aforesaid
decree, &c.. unlawfully, and with force and
arms entered upon a portion Of the mining
grounds Of the plaintiffs hereinbefore describ
ed, &c., and with picks and shovels and
other mining tools and instruments. dug and
cut, in and upon the said mining ground of
the said plaintiffs, in violation and contempt
Of the order aforesaid a channel CT ditch of
the length Of about two hundred feet, of the
depth of about thirty inches, and of the
width Of about four feet, to the great damage
and injury Of said mining grounds, &C., and
with the intent and design. as atfant is
informed and believes, Of continuing said
work. &C., and working and mining cut a
portion Of said ground, &c. To this charge
the accused appeared on attachment, and
answered. denying the allegations Of the
affidavit, bat atirmatiyely setting forth that
the digging alleged against them was ditch
being excavated for mining purposes, to be
used on their mining claims situate below
and adjoining the plaintiffs grounds in
question, and claiming that the ditch is not
constructed on the mining grounds Of the
said plaintiffs, and that the same lies on the
claims owned by the said defendants, aud
also disavowing any intention to disobey the
said Injunction.
This is substantially the case made by the
affidavit and the answer And IN deciding
this case so made, and upon the proofs given
/ a. - I how IN
say what briefly follows: / deem these pro-
ceedings the correct mode Of practice under
oar statute. and have no authority to Judge
of the proprieB of the decree Of the Court in
question In the view which | take OF the
question of contempt, | 10 not consider it
necessary to notice the question Of the bound
ary line between the claims of the respective
parties. raised on the proofs, further than to
say that | do not deem it material whether
the same runs where the complainanis allege
it does. or the same is where the defendants
claim it to be; and that for the purpose of
| ascertaining to a certainty where the ground
described in. the decree is located, | think it
requires additional proofs. or that the same
should be examined and determined by legal
| proceedings Instituted for the purpose. As
the proof now stands, there is much uncer-
tainty as to where this boundary line truly
runs.
think it may be admitted that the land
over which the ditch is excavated entirely
lies within the boundaries claimed by the
comrlainants | do not 2eem the digging it
a violation Of the injunction. i think it is
highly proper and even necessary in such a
case as this to read the complaint in c0nnec-
ton with the decree, in order to ascertain the
/ 81 gffoo e fl,a p
| because the terms used in the decree are
ambiguous, but to enable us to judge the
! extent Of the commands Dc the iuhibitions
reasonably or iudicially extend to and en-
! brace acts or matters not alleged in the com
plant, and which were not put in issue or
| tried in the action in which the injunction
was issued? do not see upon what princi,
pie the writ can be SO construed.
think the allegations made in the affida-
vt have not been sustained by the proof
| There is no proof ia the case which tends to
show that the digging was done for the pur-
pose of mining on the PLAINTIFF ground but
all the evidence ON this point shows the same
was done for the sole purpose of conveying
water across the ground claimed by com
plainants, for. the purpose of mining on
defendants mining ground adjacent thereto.
And deem the law clearly to be that one
person may own and hold mining grounds for
the purpose of mining, and another at the
same time may hold and exercise the right to
erect water courses upon or through the same
for the purpose Of mining his own grounds
The two rights or properties are not at all
inconsistent with each other that in exercis-
ing their rights one party must do no mate
rial injury to that Of the other. And in this
case the proofs show that the excavation for
this ditch has done no injury whatever to the
plaintiffs claims or rights, and is not calcu-
lated to do so hereafter.
But there is another objection to conucting
the defendants for contempt Of the Court. 1t
requires something more and beyond legal
or technical Infringement upon the matters
prohibited by the injunction. There must be
icUfM violation Of it. How can a party DIS,
obey an order, process, or command OF the
Court. without his having the terms and the
meaning Of the same? And while DO not
decide whether it is necessary IN such cases
as this to serve copies of the order or oecree
on the parties to the action, in order to OfihS
them into contempt for violating the same;
persons belonging to the other classes nailieu
therein must havs such notification before
they can be convicted of contempt OF tne
Court. 1t seems to me that the reason lor
this is too apparent TO need argument
In this case there was no notice by service
Il y iF