even before the drain had been actually constructed across the complainant's land, if the defendant had taken preliminary steps to accomplish such purpose, for if an injury is thereby threatened, it is not necessary that it should actually have been committed, to warrant a court to interfere.1 But the granting of the injunction in such case depends upon the character and extent of the injury alleged, whether it be irremedial in its nature, whether an action at law would afford an adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.2

Hare, 340; Thomas v. Jones, 2 Y. C. C. C. 510; Phoenix Water Co. v. Fletcher, 23 Cal. 481; Lewis v. Stein, 16 Ala. 214; Gerrish v. Brown, 51 Me. 256.

1 High on Inj., 18, 655; McArthur v. Kelly, 5 Ohio, 139; Gibson v. Smith, 2 Atk. 182. But insolvency alone is not sufficient ground for relief. Heilman v. Union C. Co., 37 Pa. St. 100; High on Inj., p. 17, § 18.

2 Atchison v. Peterson, 20 Wall. 508; Wait Act. & Def., Vol. IV., p. 441. A mine owner has a right to throw refuse from his mine into a natural stream, and the right may be asserted by prescription, or by custom. Corlyan v. Lovering, 26 L. J. Exch. 251; s. c. 1 Hurl. & N. 784. A private puisance may be legalized by continued user for twenty years. Wright. Williams, 1 M. & W. 77. But the prior locators of mining land, have no right, by custom or otherwise, to allow tailings to run free in the gulch and render valueless the claims of subsequent locators below them. Lincoln v. Rodgers, 1 Mont. 217; Nelson v. O'Neal, Id. 284. When license is no defense to flowing of refuse matter, see Miser v. O'Shea, 37 Oreg. 231; 62 Pac. Rep. 491. Where a subsequent appropriator discharges refuse and tailings in water, to the damage of a lower and prior claimant, it will not avoid an injunction that operations were carefully conducted. Carson v. Hays (Oreg.), 65 Pac. Rep. 814. The construction of a dam to prevent flow of tailings will not be enjoined. Nelson v. O'Neal, 1 Mont. 284. It is no defense to prevent injunction for flowing of refuse matter, that it is but the result of the proper conduct of mining operations. Beach v. Sterling Zinc Co., 54 N. J. Eq. 65. But see Penn. Coal Co. v. Sanderson, 113 Pa. St. 126; Carson v. Hays (Oregon, 1901), 65 Pac. Rep. 814.

If one

§ 494. Working through into another mine. mine owner, or other person operating a mine, in digging mineral upon his own land, drifts through into the ground of another, in addition to the legal action quare clausum fregit and to recover the value of the mineral taken, the wrong-doer could also be enjoined from further proceedings.1 And if one, having worked through into another's mine and removed mineral therefrom, should refuse to let the owner inspect the mine, for the purpose of ascertaining the extent of the injury done, a mandatory injunction would lie to compel the defendant to permit the complainant to inspect the mine for this purpose. Where the defendant in his answer admits the entry and working of the mine in question, but denies the complainant's title to the same, on satisfactory proof, a perpetual injunction should be awarded the complainant.3 And an And an injunction pendente lite should be granted in such a case to restrain the defendant from working his mine in such manner as to endanger that of the complainants, until the latter, in case his title is unsettled, can bring an action at law to establish the same.1

1 Lockwood v. Lunsford, 56 Mo. 68; Mitchell v. Dors, 6 Ves. Jr. 147; High on Inj. 734; Horner v. Watson, 79 Pa. St. 242; 21 Am. Rep. 55.

2 Ante, idem. Thomas Iron Co. v. Allentown Min. Co., 28 N. J. Eq. (1 Stew.) 77; High on Inj., § 737, p. 563.

3 McLaughlin v. Kelly, 22 Cal. 211; High on Inj. 733. But when the equities are denied injunction should be dissolved, unless proper proof is offered. 23 Cal. 82; 22 Id. 479; 13 Id. 156.

4 Lockwood v. Lunsford, 56 Mo. 68; Merced Min. Co. v. Fremont, 7 Cal. 317; Grey v. Northumberland, 13 Ves. Jr. 236; s. c. 17 Id. 281. And when the averment of plaintiff's right is met by demurrer, there is no occasion to first establish his title at law, as the same is admitted by the demurrer. Toulane W. Co. v. Chapman, 8 Cal. 392. But equity is loath to restrain the working of mines before the complainant's title has been established at law. N. J. Zinc Co. v. N. J. Franklinite Co., 14 N. J. Ch. 308; Boston Franklinite Co. v. N. J. Zinc Co., 13 N. J. Eq. 323. "It has long been settled that where a mere trespasser digs into and

§ 495. To restrain removal of ore. Where the trespass consists in a removal of ore from another's mine, an injunction will not only prevent the recurrence of future trespasses, but it will also restrain the removal of ore already extracted from the mine.1 But if the defendant has remained in possession for a considerable length of time, and expended large sums of money in developing the mine, an injunction will not ordinarily be granted without a consideration of his rights. Nor would an injunction be granted a complainant who had allowed the defendant to expend large sums of money in preparations for mining, without previously having warned him or objected to such expenditures, and if the injured party has already sued at

works a mine to the injury of the owner, an injunction will be granted; and more particularly is this true when the trespasser is insolvent." Lockwood v. Lunsford, 56 Mo. 68. But an injunction to restrain trespass to mining property will not lie for one act of trespass. Parker v. Furlong (Oreg. 1900), 62 Pac. Rep. 490. In Mitchell v. Dors (6 Ves. Jr. 147), the defendant, who commenced to take coal in his own land, and worked through into that of his landlord, was enjoined. The court will restrain the use of a coal shaft, to win mineral from adjoining mines. Leavers v. Cleary, 75 Ill. 349. And so will the cutting of an air shaft, through plaintiff's mine, by an adjoining mine owner, be restrained. Powell v. Aiken, 4 Kay & J. 343. On injunction to restrain wrongful working of mineral by adjoining owner, found in possession of a vein of ore and working it, upon plaintiff's land, the burden is on defendant to show title to such vein. Maloney v. King (Mont.), 64 Pac. Rep. 351. See also Butte Co. Min. Co. v. Mont. Ore Purch. Co. (Mont. 1901), 63 Pac. Rep. 825; Muldrick v. Brown (Oreg. 1901), 61 Pac. Rep. 428.

1 United States v. Parrott, 1 McAll C. C. 271. But see Hamilton v. Ely, 4 Gill (Md.) 34. For sufficiency of bill see Hooper v. Dora Coal Min. Co. (Ala.), 10 Southern Rep. 652; Coosaw Min. Co. v. State, 12 S. Ct. 689; 44 U. S. 550. A bill will lie on behalf of a State or the U. S. to prevent removal of ore from public land, and the trespasser may be held criminally liable if there is a penal statute for such a trespass. U. S. v. Parrott, supra; U. S. v. Gear, 3 How. 132.

2 Parrott v. Palmer, 3 M. & K. 632; Mexborough v. Bower, 7 Beav. 127; Big Company's App., 54 Pa. St. 36.

3 Parrott v. Palmer, supra; Real Del Monte G. S. & S. M Co. v Pond

law for the trespass, before his application for equitable relief, although the trespass may still be continuing, and the wrong-doer intending to remove the ore, still equity would refuse to interfere by injunction, unless the injury was irreparable. However, the removal of ore goes to the destruction of the estate, and if the court, in its discretion and the right of the court to interfere by injunction is purely discretionary 3-sees fit to restrain the working and removal of ore, the fact that the value of the ore taken could easily be computed, would not deprive the court of its jurisdiction and its right to prevent such removal by injunction.4

- It is a funda

§ 496. When account will be decreed. mental rule of equity practice that when the court once entertains jurisdiction it will proceed and adjust the rights of the parties, in order to prevent a multiplicity of suits. The right to compel an accounting is therefore incidental to the court's jurisdiction in relief by injunction against waste

G. & S. M. Co., 23 Cal. 82. As to cotenant's right to restrain cotenant from using common property for individual benefit, see Butte &c. Co. v. Mont. Ore-Purch. Co., 21 Mont. 539; Harrigan v. Lynch, 21 Mont. 36; 52 Pac. Rep. 642.

1 Hamilton v. Ely, 4 Gill. (Md.) 34; West Point Iron Co. v. Reynert, 45 N. Y. 703; Jerome v. Ross, 7 Johns. Ch. 315.

2 Merced Min. Co. v. Fremont, 7 Cal. 317; Thomas v. Oakley, 18 Ves. Jr. 184.

3 Capner v. Flemington Min. Co., 2 Greene's Ch. 467; Lyon v. Woodman, 3 Leg. Gaz. 81.

4 Anderson v. Harvey, 10 Gratt. 386. "The removal of ore already extracted may be enjoined as well as the further extraction of it." U. S. v. Parrott, 1 McAll C. C. 271; M. M. D. 135. But where plaintiff has stood by and beheld the expense of opening a mine, without objection, he is estopped to enjoin the subsequent operations. Big Mt. Co.'s.App., 54 Pa. St. 361; Parrott v. Palmer, 3 M. & K. 632; Mexborough v. Bower, 7 Beav. 127; Real Del Monte Co. v. Pond Gold and Silver Min. Co., 23 Cal. 82; 7 M. M. R. 452.

and trespass,1 and when the plaintiff has the title to the premises, it will, in general, decree an account for the waste already committed and restrain the commission of future waste by injunction. And in the case of injuries to mines, even though the court should refuse to grant an injunction, it may still decree an account, because of the irreparable nature of the injury and the damage to complainant by withholding an account.3 The great damage to the inheritance, as well as the incalculable pecuniary loss which would result from a wrongful working of mines and the removal of the ore, is the reason why the courts draw an exception in the case of injuries to mines and go to the extent of decreeing an account, although an injunction may be refused. But where the complainants only seek to enjoin the operation of a mine by a cotenant, without asking for additional relief, the court will not entertain jurisdiction for the purpose of decreeing an account, but if there are other suits pending between the same parties the court could decree an accounting in order to adjust the rights of the parties and prevent a multiplicity of suits. The same defense

5

1 Ackerman v. Van Houten, 4 Halst. N. J. Ch. 476; Parrott v. Palmer, 3 Myl. & K. 632; High, 670.

2 Fleming v. Collins' Admr., 2 Del. Ch. 230; High on Inj. 671, p. 519. 3 Parrott v. Palmer, supra; High on Inj. 670; Winchester v. Knight, 1 P. Wm. 406; Story v. Windsor, 2 Atk. 630; Poulteney v. Warren, 6 Ves. Jr. 89. Where joint owners of a tunnel exclude one of the owners, injunction will lie to restrain such exclusion. People v. Dist. Ct. Lake Co., 27 Colo. 465; 62 Pac. Rep. 206.

4 Allison's App., 77 Pa. St. 221; Parrott v. Palmer, supra; High on Inj., §670, p. 517.

5 Stuart v. White, 25 Gratt. (Va.) 300; Mitchell v. McAll, 25 Gratt. (Va.) 300; s. c. Morrison's Min. Dig., § 150, p. 147. "Defendants' well having struck oil before the hearing, which, from its situation, decreased the flow of complainants' well, an accounting was had, based upon the yield of the respective wells: Held, that the jurisdiction of the court extended beyond the writ of injunction, and a decree for the damages was ordered." Allison & Evan's Appeal, 77 Pa. St. 221; M. M. D. 444.