Brennan v. Gaston

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

In this case plaintiffs filed their complaint asserting their right to certain mining claims, and complaining of the defendants’ unlawful intrusion upon them. An injunction was granted restraining certain acts of trespass done and threatened by defendants, upon an allegation, among others, of the insolvency of the defendants. The case was tried, and a verdict found for the defendants. Judgment was entered in accordance with the verdict. After the rendition of the verdict and judgment, defendants moved for a dissolution of the injunction, but the Court refused to grant the motion as made, and made an order modifying the injunction order so as to permit the defendants to work the surface diggings, as set out in their answer. From, this action of the Court, refusing to dissolve the injunction unconditionally, the defendants appeal.

We regard the action substantially as an action of. trespass, and the injunction as an order in aid of the action. We cannot perceive any reason for continuing the injunction after the main suit has been disposed of. It may be very true that the judgment in trespass does not necessarily determine the title to the property alleged to be trespassed upon, w'hen that property is real estate ; and it may also be true that, upon a proper state of facts, an injunction may be a proper remedy upon a bill in equity, as an original proceeding, to enjoin acts of trespass and waste where the injury is irreparable and goes to the destruction of the inheritance. But this does not affect the question here. The plaintiffs, upon a triaj so far, have failed to show that they have any cause of action against the defendants ; and having failed in their action, after trial cannot claim to retain an injunction which was merely ancillary to that action, and a portion of the remedy for its successful prosecution. If the defendants have, as argued by the counsel for respondents, succeeded only upon the ground that they were entitled to a qualified possession of the premises—that is, to work a portion of the ground as surface diggings—and if the verdict and judgment only affirm this right, and the plaintiffs have the right to the possession of their quartz claims and the land necessary to work them, then any encroachment by the defendants hereafter upon these rights of the plaintiffs can be protected and redressed in due course of law, notwithstanding the verdict and judgment. But as this case is presented to us, we can only regard this as an action of trespass—which is a legal action—and an injunction ancillary to it; and the action of trespass having been decided, the order made in the course of the proceeding falls with the principal matter of which it is an accessory.

The case is remanded that the proper entry may be made, pursuant to this opinion.