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of property, or possessory right.45 But it is not an indispensable prerequisite to the granting of a restraining order that a suit shall be pending between the parties to try the title to the property. The institution of such a suit may be ordered, and the injunction proceedings will be auxiliary to such suit when commenced pursuant to such order.46 Such suit must be diligently prosecuted, if already pending, or laches in this respect will be a ground for refusing the injunction.47 The usual averments of facts, showing irreparable injury, inadequacy of remedy by action at law for damages, title of plaintiff, and insolvency of defendants, are proper to be made as the facts may warrant.48 But the allegation of insolvency, or inability of defendant to respond in damages would hardly be held essential, where such relief, if obtained, would be inadequate.49 The foregoing are cases arising, for the most part, where the prohibitory power of the court was invoked. The requisite relief may, however, require an order mandatory in effect if not in form. In a case of overflow of a placer from the back-waters of a mill-dam, the proper order was held to be one requiring a reduction of the height of the dam, and a perpetual injunction to restrain its being raised above the point to which it was necessarily reduced to remove the overflow.50 And where defendants by means of a tunnel wrongfully intercepted the water previously appropriated by complainant, and diverted. the same to defendants' use, a preliminary injunction, restraining the continuance of such diversion, was granted, where obedience to the injunction required the construction of a bulk-head across defendants' tunnel.51 But a judge at chambers was held to have no power by an ex parte order to change the possession of a mining claim held by complainants after judgment for defendants.52 Affirmative relief of this character may be

had under the laws of Colorado, in cases where the complainant has been ousted from the possession of mining property by fraud, force or violence, or kept out of possession by threats, or by words or actions, which have a natural tendency to excite fear or apprehension of danger, or where such possession was taken from complainant by entry of the adverse party on Sunday or a legal holiday, or while the party in possession was temporarily absent therefrom. The injunction when granted has the force and effect of a writ of restitution.53 There is one point upon which there seems to be some difference of opinion between the judges of the district courts, as to the proper construction of the clause requiring the issue of a temporary injunction on the filing of the bill. It being held that the temporary injunction contemplated, was one restraining defendants from prosecuting work on the property, while others incline to the belief that a temporary writ of restitution is intended. Certainly the latter view is the one most consistent with the purposes, as well as the express language of the statute. The former section referred to as a guide for the temporary order54 does not refer specially to injunctions to restrain work on mines, but to all kinds of injunctions "other than those to stay a suit or judgment at law," and provides for the conditions upon which the injunction shall issue. The purposes of the section, giving affirmative relief by injunction, has nothing whatever to do in determining the title or ultimate right of possession. It is not granted upon the ground that irreparable injury will be done by removal of mineral, but only considers the unlawful manner in which defendant obtained possession, or rather, in which complainant was ousted. For these reasons, the temporary order, restraining the working of he mine, would seem inapplicable by any kind of infer

ence; and it is certainly not rendered applicable by the express language of the statute. In restraining threatened injury to the property, it matters not who is in possession.55 The question of injury would also seem to be excluded from consideration where the only grievance complained of was that complainant had been deprived of his actual possession. As the granting or refusing injunctions is largely a matter of discretion with the court or judge to whom the prayer is addressed-a discretion regulated by law-they will not or should not exercise it by granting an injunction, without a strong showing, and especially not where the injuries to complainant would be trivial, as compared with those which would follow the granting of the relief prayed for.56 It has been held no abuse of this discretion to refuse to enjoin the erection of a dam by defendant on his own premises to prevent the unobstructed flow of tailings,57 nor to refuse restraint upon the continuance of mining operations injurious to a ditch, after the same had already been so undermined as to destroy its usefulness.58 Nor where the diversion of water is threatened, and complainant is in no condition to use it.59 Injunctive relief will only be administered, where the material allegations of the complaint are not denied, or the complainant makes sufficient showing to overcome the denials in the answer.60 But where the complaint is not denied, injunctions granted at the discretion of the court or judge will not be disturbed.61 The right to this relief may be lost by laches, or long continued acquiesence in defendants' occupation of the mine, and erection of expensive improvements.62 The necessary parties to an injunction proceeding, which has for its object the restraining of defendant from work on a mine, are ordinarily the one out of possession, as the plaintiff, and the one in posses

sion, by himself or his agents and servants, as defendant. But the court in a proper case will not be deprived of its jurisdiction by the absence of parties in interest, so long as there are those within reach of process, who but for the restraining order would commit the mischief. Carrying out this view it was laid down in two very able opinions delivered in a case arising in the United States Circuit Court for the Ninth Circuit,63 that where non-resident owners of a mine were committing injuries upon the rights of the complaining party, and were consequently beyond the reach of process within the district, they were not necessary parties, and their absence would not prevent the court from effectually restraining the parties within its jurisdiction, whether they were co-owners or mere agents.

Actions to quiet title are brought by parties in possession against those who claim an interest adverse to them. As their own possession is a matter necessary to be proved, where constructive possession, according to rules and customs, is relied on, it devolves upon plaintiff to establish, (1) the existence of the local rules or customs within the district; (2) that by such rules or customs, particular acts are required to be performed in the location and working of claims, and (3) that plaintiff has substantially complied with such requirements.64 In support of the allegation that a record is, or was, required to be kept by the customs of the district, the book of records itself would be competent evidence.65 It would be no defence to such an action to allege prior abandonment or forfeiture by plaintiff, without setting up a subsequently acquired right by defendant.66

1 Hugunin vs. McCunniff, 2 Col. 367; Fitzgerald vs. Urton, 5 Cal. 308; Burdge vs. Underwood, 6 Cal. 45, McCarron vs. O'Connel, 7 Cal. 152; English vs. Johnson, 17 Cal. 107.

2 Rogers vs. Cooney, 7 Nev. 213.

3 Hugunin vs. Cunniff, supra.

4 Columbus Co. vs. Dayton Co., 18 Cal. 615.

5 Raffetto vs. Tiori, 50 Cal. 363.

6 Myers vs. Farquharson, 46 Cal. 190.

7 Bakley vs. Tielcke, 2 Mont. 59.

8 McCarron vs. O'Connell, 7 Cal. 152.

9 Mining Co. vs. Tarbet, 98 U. S. 463.

10 Campbell vs. Rankin, 99 U. S. 261; Grady vs. Early, 18 Cal. 108; Richardson vs. McNulty, 24 Cal. 339; Mallett vs. Uncle Sam M. Co., 1 Nev. 188.

11 Mining Co. vs. Taylor, 100 U. S. 37.

12 Richardson vs. McNulty, 24 Cal. 339.

13 Zollers vs. Evans, 1 Col. Law Rep. 217; opinion by HALLETT, J., Cir. Ct. U. S., Dist. Col., October Term, 1880.

14 Raffetto vs. Tiori, 50 Cal. 363; Dilley vs. Sherman, 2 Nev. 67. 15 Alford vs. Dewin, 1 Nev. 207; Sharon vs. Davidson, 4 Nev. 416. 16 Goller vs. Fett, 30 Cal. 481.

17 Waring vs. Crow, 11 Cal. 366; Dutch Flat, &c. Co. vs. Mooney, 12 Cal. 534.

18 Bullion M. Co. vs. Croesus M. Co., 2 Nev. 168.

19 Field vs. Columbet, 4 Sawyer, 524.

20 Phillpots vs. Blasdel, 8 Nev. 62.

21 Sankey vs. Noyes, 1 Nev. 68; McFarland vs. Cu pertson, 2 id. 280; Staininger vs. Andrews, 4 id. 59; Robinson vs. Imperial, &c. Co.,5 id. 44; Lynch vs. Lawson, 8 id. 162; Kraft vs. Corlow, 9 id. 21; Eureka, &c. Co. vs. Way, 11 id. 171; Courtney vs. Turner, 12 id. 345. 22 Quicksilver M. Co. vs. Hicks, 4 Sawyer, 688.

23 HALLETT, J., in Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63. (U. S. Cir. Ct.).

24 Raffetto vs. Tiori, supra.

25 Brown vs. State, 1 Col. Law Rep. 394 (Sup. Ct., Col., April 22, 1881); Code of Col. § 248.

26 Code Col., § 250.

27 Felger vs. Coward, 35 Cal. 650.

28 Hoopes vs. Myer, 1 Nev. 433; Peacock vs. Leonard, 8 Nev. 84. 29 Lorimer vs. Lewis, 1 Morris (Ia.), 253.

30 Depuy vs. Williams, 26 Cal. 309. 31 Mitchell vs. Hogood, 6 Cal. 148. 32 Small vs. Gwinn, 6 Cal. 447.

33 Laird vs. Waterford, 50 Cal. 315.

34 Scarlett vs. Lamarque, 5 Cal. 63; Fogarty vs. Kelly, 24 id. 319. 35 Fremont vs. Crippen (sheriff), 10 Cal. 211.

36 Merced M. Co. vs. Fremont, 7 Cal. 317; United States vs. Par

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