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their contract-had allowed their note to become dishonored. Action might have been commenced on the note immediately after maturity, at the option of plaintiff. Defendants would then have been subjected to a much heavier attorney's fee than that asked, together with considerable court costs. Plaintiff ought not now to be compelled to pay the costs and charges of collection merely because, in the first instance, she adopted the course least expensive to defendants.

It follows that the judgment should be affirmed.

CLAYBERG, C. C., and POORMAN, C., con

cur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment is affirmed.

(30 Mont. 96)

STATE ex re'. BOSTON & MONTANA CONSOL. COPPER & SILVER MIN. CO. et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. et al.

(Supreme Court of Montana. March 14, 1904.) INJUNCTION-TRESPASS ON LAND-DETERMINATION OF TITLE-EVIDENCE

-SUFFICIENCY.

1. In a proceeding to punish for contempt in violating an injunction restraining defendants from working mining properties decreed to be

the property of plaintiff, much of the evidence to show that the properties on which defendants worked belonged to plaintiff was speculative, and based on projections made on concidsions from facts observed in workings remo from the points in controversy. Held not sufficient to sustain a conviction.

2. Plaintiff in an action for an injunction to restrain trespass on a mining claim alleged that another cause of action, which was stricken from the complaint, was for damages for trespasses on veins lying south of the vein with reference to which injunction was sought, and the court found all the issues for plaintiff. On a subsequent proceeding to punish defendants for violation of the injunction the evidence showed that the veins with reference to which the injunction was alleged to have been disobeyed were the only ones south of the vein involved in the injunction suit. Held, that the title to these veins was not determined by the injunc tion suit.

3. Contempt proceedings for violation of an injunction restraining trespasses on mining property cannot be resorted to for the purpose of determining the title to veins, the ownership of which was not determined in the injunction suit.

Application for a writ of supervisory control by the state, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company and others, against the District Court of the Second Judicial District of the State of Montana and another, to vacate an order adjudging relators guilty of contempt. Order vacated.

The following are the diagrams referred to in the opinion:

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Application for writ of supervisory control. This proceeding was instituted for the purpose of having vacated an order of the district court of Silver Bow county adjudging the relators guilty of constructive contempt in violating the injunction contained in the decree in the cause entitled "Montana Ore Pur. Co. v. Boston & Montana C. C. & S. M. Co.," referred to in this proceeding as the "Pennsylvania Case." That cause was heretofore before this court on appeal, and the decree entered by the district court in favor of the plaintiff was modified and affirmed. 27 Mont. 288, 70 Pac. 1114; 27 Mont. 536, 71 Pac. 1005.

It is charged in the affidavit filed in the district court that the relator corporation and its co-relators, its agents, are or have been engaged in mining and removing ore from certain of the veins awarded by the decree

in that case to the plaintiff. It is admitted that the relators, as principals and agents, have been removing ores from the veins, but that they are embraced in the decree is controverted. The veins in controversy are known in the litigation between the corporations in the Pennsylvania case as Nos. 3, 10, and 7 of the Pennsylvania lode claim, alleged by the plaintiff to be parts of the discovery vein of the Rarus-Johnstown claim upon its dip beneath the surface of the Pennsylvania. After a hearing in the district. court all the relators were adjudged guilty, and were each sentenced to pay a fine of $300.

The decree in the Pennsylvania case, as modified by this court, describes the discovery vein of the Johnstown-Rarus claim as having its apex within the surface boundaries of that claim, as crossing both the par

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allel end lines thereof, and as being exposed on its dip to the south within and beneath the surface of the Pennsylvania claim on the 700-foot level of the Rarus in No. 10 winze, in raise 27 from the 700-foot level to the 400-foot level and above, and in upraise 24 from what is known as the 400-foot level of the Snohomish or 600-foot level of the Rarus to its apex in the plaintiff's ground. This vein and the two lying to the north having their apices within the plaintiff's boundaries were adjudged to belong to the plaintiff to their lowest depths between parallel planes extending perpendicularly downward, one through the east end line of the Pennsylvania claim, and the other through the most westerly point of the conveyed portion of the Johnstown claim, and designated in the diagram accompanying the opinion on rehearing by this court as line "E Q." 27

Mont. 536, 71 Pac. 1005. The workings beneath the surface of the Pennsylvania and immediately to the south are very extensive. They are illustrated by numerous maps, sections, and models submitted with the record in this case. To undertake to follow the witnesses who testified at the hearing by the aid of these maps, models, etc., through the 1,500 pages of evidence in the record, much of which was given by experts, and is extremely technical in character, and in this way to give a definite idea of the controversy, would be a hopeless task. For present purposes a sufficiently clear idea of it may be obtained from the accompanying diagrams illustrative of the contending claims.

Diagram 1 shows the position of the discovery vein in the Rarus and Johnstown ground at the surface. The veins in controversy are those indicated at the extreme

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southern portion of the diagram as veins 3, 10, and 7. The diagram shows approximately the position of these veins as they are illustrated in the testimony of the witnesses, at or near the 600-foot level of the Pennsylvania workings from the Pennsylvania shaft, which is located near the letter "B" at the end of the line B B in ground immediately south of the Pennsylvania claim. This level corresponds in depth substantially with level 900 of the Rarus workings from a shaft which is near the letter "A" in the Rarus ground at the north end of the line marked "A A." The vein marked "No. 11" is, according to plaintiff's contention, the discovery vein as

it appears after passing over the enargite vein and in the levels above where it overtops 7 and 10, as hereafter pointed out. Its contention is, and in its evidence it attempted to show, that the discovery vein of the Rarus-Johnstown, on its descent into the earth, has a flat dip not exceeding 45° to 50°, and overtopping and cutting off the veins designated as "Enargite, Nos. 10 and 7," unites with No. 3 vein on the dip along a line beginning near the southeast corner of the Pennsylvania claim, and declining below the horizon toward the west at a very flat angle. It contends that veins No. 7 to No. 3, inclusive, also unite on the strike with the discov

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ery vein near the southeast corner of the Pennsylvania claim, and thence pass out as one vein toward the east. This contention is illustrated approximately by Sections A and B B.

Section A is intended to represent a section of the country made by a plane passing perpendicularly downward along the heavy line A A on diagram 1, which follows substantial ly the direction of upraise 24 from the surface down to the 600-foot level of the Pennsylvania workings at the point Y. Upraise 24, called indifferently "Winze 24” and “Upraise 24," according to the plaintiff's contention, follows the discovery vein from the surface to the 600-foot level of the Pennsylvania. It is conceded that a short distance west of the plane of this section vein No. 3, or a branch of it, passes up beyond the line of union, and has its apex within the Pennsylvania surface boundaries. It has been extensively mined by the relator corporation by many levels below this line, and in ground to the south of the Pennsylvania, and for at least two levels above, all along from the line designated on diagram 1 as the "Supreme Court Line" to the point of union toward the east. It has a dip of 80° to 85°, and, while it has not been followed from below into the Pennsylvania ground, the witnesses all agree that its apex will be found within the boundaries of that claim.

Section B B illustrates this condition in part, the short vertical vein passing upward from the 600-foot level in the Pennsylvania where the two veins actually unite on the dip being a portion of vein No. 3. This section was made along the broken line B B B (diagram 1), and through workings along that line. So, while it appears to be a plane section, it in fact distorts the dip of the alleged overtopping vein, so as to make it appear much flatter than it really is. Besides, it has projected upon it, from the west, workings which extend along the direction of the line B B (diagram 1). Following on the plan, map, and models the points of exposure of the discovery vein beneath the surface of the Pennsylvania claim as designated in the decree, they indicate that this vein passes across the Pennsylvania claim in the general direction of No. 11 vein, at an angle north, 60° to 70° west. This condition the plaintiff seeks to conform to its theory of a union between this vein and No. 3 on the dip by testimony of witnesses-based partly, as it asserts, upon actual development of the vein at various points below the points mentioned in the decree, and partly upon projections through undeveloped ground-that, as the vein descends into the earth, the dip becomes much flatter. To illustrate: The witnesses testify that the vein has been developed by workings along the line B B in territory between the fault fissures to the west, as shown in Section C. These are projected to the east upon Section B B, and with reference to them some of the witnesses express the

opinion that, if the vein extends from crosscut 754 (Section B B) on the dip it appears to have in these workings, it will intercept No. 3 vein in the Pennsylvania workings. The portion of the vein extending from this crosscut downward is projected through undeveloped country.

Section C is designed to represent the conditions along the line marked "Supreme Court Line" on diagram 1. It illustrates the contention of the relators. On this section the hanging wall of the discovery vein of the | Rarus-Johnstown, as fixed in the decree, is designated "Hanging Wall." This is intended to show the dip of the vein along that line, just as 24 raise is intended to show it on Section A. The other points mentioned in the decree along the strike of the vein between these limits indicate the course of the strike of the vein across the Pennsylvania claim at the depth to which development had been made at the date of the decree. The lines passing diagonally across the face of the section, and from left to right, apparently cutting the veins, indicate two parallel fault fissures descending through the Pennsylvania ground toward the northwest at an angle of about 50° below the horizon. These are supposed to reach the surface near the east end line of the Pennsylvania.

The contention of the relators is that Nos. 10, 7, and 3 veins are distinct and separate to the west of the point of union, having their tops or apices within the Pennsylvania surface, and ending against the fault fissures toward the west, and coming to the surface toward the extreme eastern portion of the claim. They contend that No. 11 is a separate and distinct vein from the discovery vein; that it cuts off on dip and strike all other veins that come in contact with it; that it is parallel on its strike and dip throughout with No. 7; that the latter, on its strike toward the east, unites with Nos. 10 and 3, and passes out into the territory toward the east from 20 to 25 feet south of No. 11 (diagram 1); that No. 11 also passes out in the same direction, not coming in contact anywhere with No. 7 or 10, either on the dip or strike; that it has a dip of about 80°; that the discovery vein on its dip overtops the enargite vein, and, passing down behind No. 11 to about the 400-foot level of the Snohomish, or the 600 of the Rarus, is there cut off by No. 11, and does not again appear in the lower workings; and that No. 11 should appear upon Section A as extending upward from the Snohomish 400-foot level. It is further contended that this vein is different in many of its characteristics from any of the other veins in the vicinity, in that it is between parallel clay seams, is exceedingly uniform in both dip and strike, has been developed both above and below the point of union with the discovery vein, and by its peculiar characteristics is readily recognized and traced. It is said that the union between vein No. 11 and the discovery vein is clearly

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