of the kind and yet it was to prevent trespass and restrain waste and irreparable injury that the remedy of injunction had its origin and still continues to be most frequently used.1 Minerals form a part of the corpus of the estate and aside from their intrinsic value, great and irreparable injury would result to the inheritance from their removal and it is principally for this reason that trespasses to mines are placed upon a different footing from trespass to other species of property, and the courts are always alert to interfere in such cases, to prevent the substance of the estate from being carried away and destroyed.2

1 High on Inj., § 697, p. 536 et seq.; Flamang's Case (6 Ves. 174 and 7 Ves. 308), where defendant worked through complainant's close and extracted mineral, is perhaps the first case of trespass where the remedy was granted and the relief was based solely upon the irreparable injury to the estate. High, supra, and foot note; see also Mitchell v. Dors, 6 Ves. 174; Gibson v. Smith, Barn. Ch. 497; Clawes v. Beck, 13 Beav. 347; Grey Northumberland, supra. One cotenant alone may bring suit to prevent injury to common property. Gilpin v. Sierra Nevada Con. Mining Co., 2 Idaho, 662. It is usually proper to make all parties defendant who contribute to the wrong. Miller v. Highland Ditch Co., 87 Cal. 430; Mining Debris Cases, 8 Sawy. (U. S.) 628; Cole Silver Min. Co. v. Vir. Water Co., 1 Sawy. (U. S.) 470. Court may dismiss bill for failure to bring in necessary parties. Cole Silver Min. Co. v. Vir. Water Co., 1 Sawy. (U. S.) 485. Or may permit amendments bringing in such parties. Ore Fin. Min. Co. v. Cullen, 1 Idaho, 113. And bill will be dismissed for multifariousness for joining separate claims against different persons. Keyes v. Little York Gold Washing Co., 53 Cal. 724; Hamilton v. Whitridge, 11 Md. 128. But see Hillman v. Newington, 57 Cal. 56, criticising Keyes v. Gold Washing Co., supra.

2 McBrayer v. Hardin, 7 Ired. Eq. (N. C.) 1; Irwin v. Davidson, 3 Ired. Eq. (N. C.) 311; High on Inj., § 730, and note, pp. 559-560; Smith v. Pettingill, 15 Ver. R. 84; Jerome v. Ross, 7 John. Ch. 315; Anderson v. Harvey, 10 Grat. 386; Nichols v. Jones, 19 Fed. Rep. 855. "The jurisdiction of a court of equity to restrain the destruction of the estate by mining, where a defendant is in adverse possession under claim of title, considered." Haigh v. Jaggar, 33 Eng. Ch. R. 231; 2 Coll. 231; s. c. on law side, 16 M. & W. 524; Mor. Min. Dig. p. 134. "The jurisdiction of chancery to restrain by injunction and to

to

§ 482. Injury must be irreparable. — Trespass mining property was early recognized as one of the grounds for equitable jurisdiction by injunction, but cases of this character were distinguished from waste, and equity's jurisdiction was based principally upon the irreparable nature of the injuries in such cases, arising from the character of the property.1 Hence, although it is not necessary for the complainant to establish his right at law, where the injuries are irreparable and liable to permanently injure the inheritance,2 it is held to be a necessary allegation in his bill,3 and if the injury is not irreparable in damages but is susceptible of pecuniary calculation and compensation by legal remedies, the court would refuse to interfere by injunction.*

compel an account in cases of the destruction or taking away of the substance of the estate, is no longer restricted to waste, but is extended to trespass." Thomas v. Oakley, 18 Ves. Jr. 184; M. M. D. 134. As to a proceeding by the Federal Court, to restrain the assembling of miners, at the instance of a mine owner, on account of threatened injury to property and employees, see Reinecke Coal Min. Co. v. Wood, 112 Fed. Rep. 477. But although the acts asked to be restrained are committed before the writ issues, if there is grounds to apprehend a recurrence of the acts, the writ should go and be broad enough to restrain such acts in future. Pa. Co. v. Bond, 99 Ill. App. 535. For injunction against sinking shaft and removal of ore, see Halpin v. McCune, 107 Iowa, 494; 78 N. W. Rep. 210.

1 Flamang's Case, 6 Ves. Jr. 147; 1 Id. 308 (perhaps the first case reported); Livingston v. Livingston, 6 Johns. Ch. 499; Thomas v. Oakley, 18 Ves. 184; Munson v. Tyson, 6 Phila. 395.

2 West Point Iron Co. v. Reyment, 45 N. Y. 703.

3 Waldron v. Marsh, 5 Cal. 119. And the facts showing the nature of the injury should be stated. Supra; Leitham v. Cusick, 1 Utah, 242.

4 Lyon v. Woodman, 3 Leg. Gaz. 81; Jerome v. Ross, 7 Johns. Ch. 315. If there is reasonable ground to believe that the acts attempted to be restrained will not occur, the chancellor should refuse the writ. Odlin v. Bingham Copper & Gold Min. Co. (N. J.), 51 Atl. Rep. 925. In all mining injuries, since the damage is not capable of being estimated, there can be no adequate remedy at law, and hence, insolvency is not material. U. S. v. Parrott, 7 Mor. Min. Rep. 335; Merced Min. Co. v. Fremont, 7 Cal. 317; 7 M. M. R. 313; Smith v. Rome, 19 Ga. 89; 7 M. M.

As a

§ 483. Applicant must generally show title. general rule an injunction will not be granted until the party aggrieved has shown a satisfactory title to the locus in quo;1 but in a trespass to mining property, as the mischief, if allowed to continue, would soon be irreparable, an injunction will usually be granted temporarily, although the plaintiff's title may be in dispute and the same has never been established at law.2 But when the defendants are also in possession of the property in controversy, if the title is doubtful and disputed and the plaintiff has not taken steps to establish the same, an injunction will usually be denied. And if the jurisdiction of the court is put in issue, and the bill contains averments sufficient to give the court jurisdiction, it will award a temporary injunction to stay the injury until such issue can be determined.4

R. 306; Anderson v. Harvey, 10 Gratt. (Va.) 386; 7 M. M. R. 291; McBrayer v. Hardin, 7 Ired. (N. C.) 1; 7 M. M. R. 288. But see The Real Del Monte Gold and Silver Min. Co. v. The Pond G. & S. M. Co., 23 Cal. 82; 7 M. M. R. 452; Lockwood v. Lunsford, 56 Mo. 68; 7 M. M. R. 532. In injunction for waste, it is not sufficient to allege that defendant committed waste, but the facts should be set up showing the waste. Capner v. Flemington Mining Co., 3 N. J. Eq. 467.

1 High on Inj., §§ 701-705-706; Haigle v. Jagger, 23 Eng. Ch. 231; 2 Coll. 231; Irwin v. Davidson, 3 Ired. Eq. (N. C.) 311; Emma Mine Case, 3 Leg. Gaz. 81. And where the title is in dispute, the injunction, if allowed, should only be temporary. Echelkamp v. Schrader, 45 Mo. 505; Mayor v. Groschen, 30 Md. 436.

2 U. S. v. Parrott, 1 McAll C. C. 271; Lyon v. Woodman, 3 Leg. Gaz. 81; Moore v. Terrell, 1 Ga. 7; Merced Min. Co. v. Fremont, 7 Cal. 317. 3 The court will not reinstate complainant in possession, as the legal remedy is ample. High, 715.

4 Irwin v. Davidson, 3 Ired. Ch. (N. C.) 311. Pending ejectment, injunction should issue to protect mine, where damage would otherwise result. Buskirk v. King, 72 Fed Rep. 22. And same is true of partition suit. Rainey v. Fricke Coke Co., 73 Fed. Rep. 389. One who has never discovered mineral upon the public domain, cannot maintain injunction against an alleged trespasser. Reagan v. Whittaker, 14 S. D. 373; 85 N. W. Rep. 863. The old rule that where title was in dispute an injunc

§ 484. Where title is in dispute. An injunction will not ordinarily issue to restrain a trespass or other injury if the plaintiff's title is in dispute, but a determination of the legal controversy growing out of such dispute should first be settled,1 but if the threatened injury is of such a nature that the consequences of its commission would be irreparable, should the title be decided adversely to the defendant, then equity will interfere to prevent the injury before a final adjudication as to plaintiff's title.2 In this particular an exception exists as to the law of injunction, in its application for the protection of mines and mining rights, as distinguished from other classes of property, for on account of the irreparable nature of the injury to this class of property, resulting from its fluctuating values and the great resulting damage, both to corporeal as well as incorporeal holdings, from an interference with the owner's rights, it has generally been held that an injunction would issue for the protection of such property, although the plaintiff's title might be in dispute.3 Some respectable authorities do not recognize this exception in the case of mines, but main

tion would not issue has been modified by the later cases, in the case of injuries to mines, in order to preserve the property, pending the litigation, where there was no other adequate remedy. Erhardt v. Boaro, 113 U. S. 537; Carlisle v. Cooper, 21 N. J. Eq. 576; Hanson v. Gardner, 7 Ves. Jr. 305, at p. 307. But see Davis v. Lee, 6 Ves. Jr. 783; Old Tel. Min. Co. v. Central Smelting Co. (Utah), 7 Mor. Min. Rep. 556; Magnet Min. Co. v. P. & P. Sil. Min. Co., 9 Nev. 346; Lockwood v. Lunsford, But see U. S. v. Parrott, 7 M. M. R. 335.

56 Mo. 68.

1 Waldron v. Marsh, 5 Cal. 119; Old Tel. Co. v. Cent. &c. Co., 1 Utah, 331; Echelkamp v. Schroder, 45 Mo. 505; 10 Am. & Eng. Encl. Law, p. 880.

2 The court acts in such case to preserve the property pending the controversy. Erhardt v. Boaro, 113 U. S. 539; Long v. Kosebeer, 28 Kansas, 226.

3 Merced Min. Co. v. Fremont, 7 Cal. 317; McLaughlin v. Kelley, 22 Cal. 211; Chambers v. Ala. Iron Co., 67 Ala. 353; Leineger's App., 106 Pa. St. 398. See as to trespass where defendant is insolvent, etc. Graham

tain that the plaintiff's title should be settled, except in extreme cases, before an interference by injunction.1 However, the trend of the decisions seems to recognize the distinction in the case of mining properties, and rightfully so, for should the rule obtain that no relief by injunction can be had until an adjudication of title in a given case, then the rightful owner would constantly be subjected to repeated disputes of his ownership in all valuable properties, by the bold adventurers who frequent mining sections and at the end of the protracted litigation would only be rewarded by the possession of worthless property, a mine cut out, or ruined by unskillful or malicious working.2

§ 485. Same When defendant is insolvent. An injunction will be granted to restrain any illegal acts on the

v. Dahlanego Gold Min Co., 71 Ga. 296; McPike v. West, 77 Mo. 199. To prevent flooding of mine. Crampton v. Les, 19 L. R. Eq. 115; Hammond v. Winchester, 82 Ala. 470; Logan v. Driscoll, 19 Cal. 623. But see Clark' v. Willett, 35 Cal. 535.

1 Irwin v. Davidson, 3 Ired. (N. Car.) Eq. 311; Paris v. Blery, 2 J. J. M. (Ky.) 483.

2 Lockwood v. Lunsford, 56 Mo. 68; Merced Min. Co. v. Tremont, supra, and authorities cited. "The jurisdiction of a court of equity to restrain trespass in the case of the working of mines is fully established, whether the title be brought in issue or not; but where the title is denied, the court will look more closely into the character of the trespass." Moore v. Ferrell, 1 Ga. 7; M. M. D. 134. “An injunction to stay the working of a mine may be granted notwithstanding a question of title is involved. But the fact of title being involved will add to the caution of the court in granting it. It is not necessary for a plaintiff to establish his title by a suit at law where it is not doubtful and not in dispute. But if disputed and in doubt, a court of equity will not settle it for him. He must show a prima facie case, free from reasonable doubt, and a case free from the imputation of laches." Emma Mine Case, 3 Leg. Gaz. 81; M. M. D. 138. "To justify the interference of equity, the complainant must in general be in possession or have established his right at law, or brought an action to recover possession, or