part of either party to a suit, during the pendency of an action in which the title to property is in issue, until the trial and ownership of the property can be determined by the court.1 And the action will lie, not only to restrain proceedings in the case of a disputed title at law, but it will also lie to prevent any unfair advantage being gained in a legal action in regard to the same property.2 And more particularly is this true when the party guilty of the wrongful acts is insolvent, for in such case an action at law for damages would not afford adequate relief for the injured party. Courts of equity would not, however, grant a perpetual injunction in a case where the title to the premises is put in issue, in order to restrain illegal acts on the part of one of the parties to the suit, if the evidence of the title is at all doubtful, but a temporary injunction would alone be granted to restrain the parties until the title to the property could be settled in law. But the grounds for the injunction can alone depend upon the facts developed in the case before the court, and even in the case above mentioned, the court could hear further testi

his exclusive right must be admitted by defendant, and the court will, in all such cases, proceed with great caution." Bracken v. Preston, 1 Pinney, 584; M. M. D. 142.

U. S. v. Parrott, 1 McAll C. C. 271; Lockwood v. Lunsford, 56 Mo. 68. But see N. J. Zinc Co. v. N. J. Tran. Co., 13 N. J. Ch. 323; Old Tel. Min. Co. v. Cent. Smel. Co., 1 Utah, 331.

2 Charter Oak &c. Co. v. Cummings, 90 Mo. 267; High on Inj. 357, p. 234; Burke v. Parker, 80 N. C. 157; Goodenough v. Shepherd, 28 Ill. 81; Emma Mine Case, 3 Leg. Gaz. 81.

3 Lockwood v. Lunsford, 56 Mo. 68, a leading case. Hamilton v. Ely, 4 Gill. (Md.) 34. The insolvency of defendant when the title to premises is in dispute, is an important consideration. Real Del Mont. G. & S. M. Co. v. Pond G. & S. M. Co., 23 Cal. 82.

4 Merced Min. Co. v. Fremont, 7 Cal. 317 But where no proceedings are brought to establish title, and complainant's rights are doubtful, since the injunction could not be made perpetual, a temporary writ would be refused. Old Tel. Min. Co. v. Cent. Smel. Co., 1 Utah, 331.

mony on the question of title, and as the remedy is wholly in the discretion of the chancellor, a perpetual injunction might be granted to more fully protect the interest of the plaintiff.1

§ 486. Parol lease or license will not support action. A court will not ordinarily grant an application for an injunction when the complaint fails to show a good title to the land in controversy in the applicant and generally then only in a case of irreparable injury;2 and when the complainant endeavors to restrain a trespass to mineral lands and has no other evidence of title than a mere parol lease or license, an injunction will not be allowed, for the proof in support of the complainants' title should be clear and satisfactory.3 Damage should always be made to appear in

1 Lockwood v. Lunsford, 56 Mo. 68, and cases cited; U. S. v. Parrott, 1 McAll C. C. 271; McLaughlin v. Kelly, 22 Cal. 211. But the court will not settle legal rights. Irwin v. Davidson, 3 Ired. Eq. (N. C.) 311. Owner of fee may enjoin commission of waste in life tenant. Hughes v. Burriss, 85 Mo. 660. But an injunction will not be granted to restrain the continuance of a trespass upon realty, if an adequate remedy at law may be had. Boeckler v. Mo. Pac. Ry. Co., 10 M. A. 448. As to chancellor's discretion see Capner v. Flemington Min. Co., 2 Green's Ch. 467. In De Carvajal v. Y. M. C. A. Ass'n of N. Y., the court refused a temporary injunction asked by adjoining landowner because of threatened injury to building, from blasting, as it did not appear that defendants were insolvent and hence, plaintiff had an adequate remedy at law. 76 N. Y. S. 474; 3 Misc. Rep. 727. If there is an adequate remedy at law, injunction should be refused. Gardner v. Stroever, 81 Cal. 150; Wilson v. Mineral Point, 39 Wis. 160; White v. Stender, 24 W. Va. 615; Colton v. Price, 50 Ala. 424; Weigle v. Walsh, 45 Mo. 560; 10 Enc. Pl. & Pr. 953.

2 Emma Mine Case, 3 Leg. Gaz. 81. But see West Point Iron Co. v. Reymert, 45 N. Y. 703; Hess v. Winder, 34 Cal. 270; Munson v. Tyson, 6 Phil. 395.

3 Clegg v. Jones, 43 Wis. 482; High on Inj. 731. Nor could a licensee enjoin a subsequent lessee of the same mineral unless his license was exclusive of the right to mine the ore. Carr v. Benson, L. R. 3 Ch. App. 524. But see, as between old and junior licensees, Anderson v. Simpson, 21 Iowa, 399.

the application for an injunction and as the licensee would not be damaged by an injury to the land, except so far as money damages would compensate him, he is confined to his legal remedy alone for redress.1 But although it is the general rule, that relief by injunction will not be granted unless a judgment at law has been obtained, establishing plaintiff's title, in the case of encroachments upon the land of an adjoining mine owner, or of excavations and other trespasses on his land, an injunction may be granted although a verdict at law has not been rendered for the same trespass.3

§ 487. Fraud a ground for relief. Fraud is one of the fundamental grounds for equitys' interference,1 and any misrepresentation on the part of a purchaser of mines or mineral property will constitute sufficient grounds for grant

1 Before severance he is not even regarded as having any property in the minerals. Bainb. on Mines, p. 300; Grubb v. Bayard, 2 Wall. Jr. (U. S.) 81; Chitwood v. Zinc Co., 93 Mo. App. 225; Rochester v. Min. Co, 86 Mo. App. 447.

This is the general rule, Smith v. Jameson, 91 Mo.

2 Stevens v. Williams, 5 Mor. Min. Rep. 449. unless some special ground for relief exists. 13; Irwin v. Davidson, supra. But see, contra, N. J. Zinc & Iron Co. v. Trotter, 38 N. J. Eq. 3.

3 Lockwood v. Lunsford, 56 Mo. 68; Mitchell v. Dors, 6 Ves. Jr. 147; N. J. v. Parrott, supra; Lyon v. Woodman (Pa.), 3 Leg. Gaz. 81. "In junction against a trespasser to prevent his taking ore ought to issue in favor of a party in possession under a clear title without requiring him to bring any action at law." Anderson v. Harvey, 10 Gratt. (Va.) 386; Mor. Min. Dig., p. 135. “A licensee cannot enjoin a subsequent lessee of the same minerals, the license not being exclusive, and defendant not interfering with the actual possession of the licensee." Carr v. Benson, L. R. 3 Ch. App. 524; Mor. Min. Dig. 139. For injunction to restrain removal of ore by licensee, after revocation of mining license, see Lockwood v. Lunsford, 56 Mo. 68; Lunsford v. La Motte Lead Co., 54 Mo. 426. For full discussion of the rights and remedies of a licensee to mine, see chapter, License to Mine.

High on Injunctions, 21-47-190-208.

ing relief by injunction. that where a judgment creditor takes from his debtor a conveyance of his land in satisfaction of the judgment, and a third party, with full knowledge of the facts, fraudulently obtains from the judgment debtor a conveyance of the mineral or ore beneath the land, such person could be enjoined from subsequently removing the mineral so purchased, upon the well established jurisdiction of a court of equity in transactions tainted with fraud.2

For instance, it has been held,

The surface owner

§ 488. In favor of surface owner. of land has an easement for subjacent support in the soil beneath the same, and is entitled to an injunction to restrain the party owning the ore or mineral beneath the surface, from removing the same in such a manner as to injure the property of the surface owner.3 But where

1 High on Inj, § 1559; Wood v. Rowcliffe, 3 Har. 304.

2 Outcolt v. Disborough, 2 Green Ch. 214, and see also High on Inj. 361. Injunction will lie to prevent an adjoining landowner from using undue means to cause natural gas or oil to flow from his neighbor's land on to his own. Manfg. Gas & Oil Co. v. Ind. Nat. Gas & Oil Co. (Ind. 1900), 57 N. E. 912. But adjoining lessee cannot be enjoined because his pump draws the oil from the plaintiff's land. Jones v. Forest Oil Co., 194 Pa. St. 379; 44 Atl. Rep. 1074. "Where a complaint sought

for a rescission of deed, and an injunction, etc., upon the ground that the defendants had agreed to pay cash upon receiving the deed, and to that end gave a sight draft, and that it had not been paid, and the drawers were insolvent, and the indorser admitted these allegations, and sought to avoid them by other matter: Held, that as there was an equity confessed, the injunction should be continued." Carter v. Hoke, 64 N. C. 348; Mor. Min. Dig., p. 126.

Rogers v. Taylor, 2 Hurl. & U. 828. And in every demise of minerals by the surface owner, it is a presumption of law that he reserves the right to support. Dugdale v. Robertson, 8 Kay & J. 695. And the usual clause that the mine owner shall d as little damage as possible to the soil does not operate to defeat the right of support. Proud v. Bates, 34 L. J. Ch. 406; s. c. 39 Eng. L. & Eq. 19. See also Hext v. Gill, L. R. 7 Ch. 699. Also High on Inj. (Vol. 1), p. 563, and cases cited.

there is a reservation in a conveyance of real property of all the mines and minerals beneath the surface of the land, together with a covenant to compensate the grantee, for any damage that may be occasioned in digging for the mineral and taking it away, the grantor will be allowed to take the mineral from under the land so conveyed, and the surface owner would be confined to his legal remedy, and could not prevent him from so doing by injunction.1

Where minerals are reserved.

§ 489. Same If the owner of land conveys the same and reserves to himself the minerals beneath the surface, with or without the right to extract the same reserved, the ownership of the ore would carry with it the right to mine, but he would not be permitted to take it from the ground if he could not get it without leaving sufficient support to the surface, for the right to subjacent support is incidental to the ownership of the surface, just as essentially as his right of possession is to the ownership of the ore.2 And generally, in the absence of express words limiting or waiving his right, the legal presumption is that the surface owner retains the surface with the natural support it possessed before the demise.3

1 Aspden v. Seddon, L. R. 10 Ch. 394; High on Inj. 736. Nor would the mine owner be liable for the loss of a spring occasioned by working the mine. Coleman v. Chadwick, 80 Pa. St. 81. But the right of support is distinct from any right to compensation, claimed under the terms of a grant or exception of mines, and any such stipulation will not defeat the right to support, unless it is expressly included. Harris v. Riding, 5 M. & W. 60; s. c. 8 L. J. (N. s.) Exch. 181; Wakefield v. Duke of Buccleugh, L. R. 4 Eq. 613; s. c. 4 H. L. Cas. 377; Marvin v. Brewster Iron Co., 55 N. Y. (10 Sick.), 538; s. c. 14 Amer. Rep. 322. Injunction will lie, to restrain removal of minerals that will let surface subside. C. & A. R. R. Co. v. Brandau, 81 Mo. App. 1.

2 Harris & Ryding, 5 M. & W. 60. tion of negligence is not material.

And when injury results the quesBrown v. Robins, 4 H. & M. 186.

3 Dugdale v. Robertson, 3 Kay & J. 695; Richards v. Jenkins, 18 Law Times (N. s.) 438; Smart v. Morton, 3 Eng. L. & E. 385; Coleman v. Chad