Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-01-04
Defines the Rights Of Holders
of Property in Common.
ONE CANNOT USE
Without the Consent of the Other--
A Proposed Decree That One
Side Did Not Like.

purchasing companies over the right of
the latter to maintain a tramway over the
Snohomish lode claim, near Meaderville, !
has been received from the supreme court |
by the clerk of the district court. The doc
ument is as follows: |
This appeal is from an order made !
April G, 1898, dissolving a temporary re-
straining order heretofore granted on the
application Of the plaintiff and refusing the
plaintiff an injunction pendente lite against
the maintenance of a Runway by the de-
PENDANT.
Plaintiff and defendant are owners in
common of the Snohomish lode claim. De-
PENDANT has constructed a tramway over
a portion of the claim and uses it for the
purpose of conveying ores from the Rarus
to a bin built by defendant on the common
property. The Rarus mine is owned by the
defendant, as are also the tramway and
ore bin. This tramway and bin are used
by the defendant alone and cannot be util-
lied by plaintiff in it's mining operations.
In the event plaintiff desired to erect works
it could not do so on that part Of the claim
over which the tramway runs. The plain
tiff insists that the tramway and bin were
placed upon the common property wrong
fully and without it's consent or the con-
sent of its predecessor in interest; while
the defendant pleads that the structures
were erected with the consent of the
grantor or plaintiff. To sustain the allega-
ton that the tra1nway and bin were built
upon the property with the consent of the
plaintiff, defendant introduced in evidence
certain correspondence between one
Palmer, who was general manager of the
Butte & Boston company, the immediate
grantor of the plaintiff, and the defendant.
If Palmer was clothed with the power to
confer upon the defendant a right of way
for the tramWay, the question would be
presented as to whether or not the route
agreed upon was followed by defendant in
laying the tramWay. We find it unneces-
sary however, to determine the latter ques-
ton, since we are of the opinion that
Palmer was not, in virtue of his Office as
general manager, authorized to grant for
his company either an easement or a
license. In the late case of the Great Falls
Water Works company VS.. the Great
Northern Railway company we declined to
express an opinion upon the question now
presented; but we think there can be only
one answer made: Corporations, like nat
ural persons, are bound only by the acts
and contracts of their agents done and
made within the scope of their authority.
There is no presumption that the general
manage Of a corporation has power to
convey it's ~landS-grant an easement or give
a license therein.
inspection of the records discloses that
in all substantial matters the defendant in
his case is in the attitude and position OF
the defendants in Connolle VS.. the Boston
q Montana company, and the facts shown
by the record before us so clearly resemble
those presented in the case cited as to de-
mand the application of the same rules.
We held in the Connolle case that the court
below did not abuse it's discretion in grant
ing q temporary injunction upon facts sim
liar to those presented in the case at bar.
and that under Section 592 Of the Code of
Civil Procedure the acts of the defendants
constituted an assumption and exercise
of exclusive ownership over a portion of
the property owned in Common by them
and the plaintiff; and that injunction, be-
ing an appropriate remedy as against a
stranger, was properly granted against the
defendant for the purpose of restraining
the continuance of such trespass, and thus
prevent a multiplicity of actions at law to
recover damages which would be occa-
stoned thereby. The repetition of the tres
pass would render defendants liable to con-
tinued actions in which the amount of re-
covery would be the damage sustained by
the plaintiff lip to the time of the com
mencement of each action. The doctrine
declared applicable to the facts in the Con-
nolle case is controlling in the case now
before us.
.Defendants claim, however, that the
granting or refusal of an interlocutory in
junction is a matter within the discretion
of the lower court, and that therefore this
court will not on appeal interfere with the
exercise Of that discretion. Ordinarily the
rule is as stated, for it is well established
that the action of the court or judge below
in granting or denying an injunction will be
affirmed unless error clearly appears. But
it is also well settled that the appellate
court will not hesitate to reverse an order
granting or denying an injunction If the
court or judge q quo has abused its or his
discretion. In this case the right to an in
junction pending the controversy was
shown on the hearing; and: indeed. the dis
trict court in effect so decided, although it
denied the injunction upon the wholly I'M
tenable ground that the injunction would
throw out of employment a large number
of men then working at the Rarus mine.
"a question of practice has been sug-
gested. The temporary restraining order
was granted without notice to the defend
ant, and the order to show cause why an
injunction pendente lite should not be is
sued was heard with the application OF de-
PENDANT to dissolve the restraining order.
The application of the defendant to dis
solve was supported by affidavit. The court
received oral testimony upon the hearing,
but declined to consider aftidavits on the
part of the plaintiff in opposition to the
application by defendant, the reason given
by the court being that under SECTIONS 80,
SIT and S7S of the Code of Civil Procedure
plaintiff was permitted to oppose the APP
plication to dissolve either by affidavit OF
oral testimony, but not by both, and that
as plaintiff had introduced oral testimony
It would not be allowed to use an affidavit
To dispose of this matter it is sufficient to
say that plaintiff was not limited to the
right to use one only of the two sorts OF
evidence recognized as admissible by the
sections cited, and the fact that 1t had
seen fit to avail itself of oral testimony
was no reason for excluding evidence IN
the shape of written testimony. Since the
application to dissolve was supported by
affidavit the plaintiff had the privilege OF
presenting all evidence at his in
opposition to the application whether such
evidence was oral or written; and the
statute is not susceptible to the interpreted
ton which the court below gave it.
w are urged by the plaintiff to direct
the district court to leave the Temporary
restraining order in force and to continue
it until the final trial of the cause. Bu'
we do not know what might be shown or
a new hearing in the court below, If ont
be had, and the suggestion, therefore. doe: