The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-09-05

The state supreme court yesterday
handed dow nan opinion in the case of
the Crescent Mining company against
the Silver King Ming company, appel
liant. in which the Silver King is again
victorious. The opinion was delivered
by Justice Miner and concurred in by
Justice Ritchie. II orders that the tenn
porary restraining order appealed from
be set aside, upon the condition that the
defendant shall file a bond in the sum
of $25, 600, conditioned that the defend
ant will pay all damages which the
plaintiff may sustain by the laying CT
water pipe lines through the 4ands OF
the plaintiff, if it be finally determined
that its construction or maintenance is
wrongful, and that the defendant shall
also pay all damages which the plaintiff
may recover in the suit for and upon
account Of the alleged tresQass and
diversion of the water Of Shadow lake
and other matters and wrongs alleged
in the complaint, if the plaintiffs con-
tention as to such matters or any of
them is finally sustained.
1t is further ordered that pending the
final hearing of the suit the plaintiff
and defendant observe and preserve tee
status Of the properties, SO far rs tire
pipe lines of the parties are involved,
as It existed at the commencement Of
the suit, and thai the costs of this pro-
ceeding shall abide the final result of
the case.
The action was begun on July 49,
1895, and the plaintiff prayed that the
defendant be restrained from diverting
or taking from the waters of Shadow
lake, by its pipe line or otherwise or
from any of the visible sources of sup
ply of said lake, including the jeanette
tunnel, or from taking any water from
plaintiffs pipe line against its viii and
from entering upon the Aetna, Hec' a,
Rebellion, Climax, Garfield, Sc ate,
Walker Extension, Spring and Pinto
mines, and from using or attempting TO
use said pipe line upon said mining
claims. and for an order to show cause
and for temporary injunction and judg-
ment.
Afterwards. upon motion of the de-
PENDANT, the restraining order was set
aside upon the defendant fling a bond
in the sum of $4,000 The bond was
given and upon hearing in the court
below an order to show cause why the
temporary restraining order should rot
be granted. pending a final hearing, the
court granted the restraining order as
prayed for. except that the order al
lowed the defendant during the irriga-
ton season to take from the waters of
Shadow lake an amount of water equal
grantors of the defendant and reason
ably necessary for irrigating certain
lands, and that in case of an appeal
from the order, the defendant should
give a supersedeas bond in the sum Of
$4,000, suspending said injunction dur
ing the tendency of the suit. From this
order the appeal was taken.
Where the pIeadings and affidavits on
hearing for a temporary restraining
order are such as to leave in loubt the
quantity Of water appropriated by or
belonging to each party and it ,loas not
appear with reasonable certainty THAI
the defendant had not acquired or did
not own the water and mine, and no
definite or certain amount Of water is
alleged to belong to the plaintiff
and il also appears that rfa al
legations Of the complaint ard
affidavits supporting it are substantial
ly denied and 1T is alleged that license
was granted defendant to lay a pipe
line over the land Of plaintiff to the
water in question, which is denied and
when the restraining order leaves in
uncertainty the amount Of water de-
PENDANT was permitted to use. the
opinion held. that the respective rights
of the parties are so uncertain mat
they cannot be safely determined from
the conflicting affidavits and showing
made. When this state of facts exists
and it is apparent that the continu-
ance Of the restraining order until the
hearing will work great injury to one
of The parties without corresponding
benefit TO the other, the restraining or
der shall not continue if adequate pro-
lection to the parties until the final
hearing can be had without lit, by
means of indemnity bond. The opin-
ion also stated that under the facts
this case prQDPTs N rio11
can only be reached upon a triad where
the witnesses can be heard and exam
ined in a way to sift their candor, rec
objection and truthfulnesS.