Real Del Monte Consolidated Gold & Silver Mining Co. v. Pond Gold & Silver Mining Co.

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

[84]This is an appeal from an order refusing to dissolve an injunction which had been granted upon the complaint, without notice to the defendants. The defendants.filed an answer denying all the material allegations of the complaint, and moved thereon to dissolve the injunction, which was denied. The main question at issue is the ownership of the quartz ledge which the defendants are engaged in working—the plaintiffs claiming that it is a part of the “ Aurora Ledge,” owned by them; and the defendants denying that it is part of the “ Aurora Ledge,” aver that it is a part of the “ Pond Lode,” owned by them, and that they are engaged in working the same as the rightful owners thereof.

The rule has been settled by this Court, that where a motion is made to dissolve an injunction upon complaint and answer, the injunction will be dissolved if the answer denies all the equities of the complaint, unless the complaint is supported by additional affidavits. ( Gardiner v. Perkins, 9 Cal. 553; Burnett v. Whitesides, 13 Id. 156 ; Curtis v. Sutter, 15 Id. 263; Johnson v. The Wide West Co., 22 Id. 479.)

It appears that the defendants have been in possession of the quartz ledge in question for several months, have expended large sums of money in developing and working the same, and were, at the time of the granting of the injunction, and had, for some time previously, been working the mine as their own. In such case it requires a very clear and strong showing to induce a Court of Equity to grant or sustain an injunction to stop the work. There must be an urgent necessity, and, as a general rule, the title and right of the plaintiffs should be shown to be clear, well established and not in dispute. The application should also be made promptly, and not delayed until large expenditures have been made by the defendants. (Clavering v. Clavering, 2 Pierre Wm. 388; Anonymous, Ambler, 209; 18 Vesey, 515; Norway v. Rowe, 19 Id. 144; Field v. Beaumont, 1 Swanston, 203; Hilton v. Granville, 1 Craig & Phillips, 283.)

When the title to the property is in dispute between the parties, the extent of inconvenience and expense to which the defendant would be subjected by the granting of the injunction, as compared with the injury the plaintiff would be likely to suffer if refused, [85]