« EelmineJätka »
ble to permit a party to come into a court of chancery and invoke this extraordinary remedy, and thereby restrain the defendants from the prosecution of their business. A delay of three years or more has been ordinarily held to be such laches as will preclude a party from this form of relief, and where an injunction has been granted, and a party fails to prosecute with diligence his action at law, the injunction will be vacated. High, Inj. (30 Ed.) 599; Weller v. Smeaton, 1 Cox, 102; Bickford v. Skewes, 4 Mylne & C. 498; Reid v. Gifford, 6 Jobns. Ch. 19; Dana v. Valentine, 5 Metc. (Mass.) 8; Tichenor v. Wilson, 8 N. J. Eq. 197; Southard v. Morris Canal, 1 N. J. Eq. 518; Johnson v. Wyatt, 2 De Gex, J. & S. 17.
The plaintiffs or their predecessors have carried on the business of expressing oil from fish in their present location for upwards of 20 years. The evidence goes to show that owing to improvements in the process of manufacture the odors must be less than they were in past years. It can hardly be said, therefore, that the works are a nuisance to-day, but were not a nuisance 20 years ago. The right to maintain a nuisance can be established by prescription or 20 years' user. It is not necessary to decide that the defendants have established this prescriptive right in the present case, but it is a sufficient reason if the question is in doubt to refuse an injunction until the plaintiffs' right has been tried at law. Ingraham v. Dunnell, 5 Metc. (Mass.) 118; Dana v. Valentine, Id. 8; Smelting Co. v. Tipping, 11 H. L. Cas. 642; Flight v. Thomas, 10 Adol. & E. 590; Bolivar Manuf'g Co. v. Neponset Manuf'g Co., 16 Pick. 241; Bliss v. Hall, 5 Scott, 500; Goldsmid v. Improvement Com’rs, L. R. 1 Ch. App. 349; Campbell v. Seaman, 63 N. Y. 568.
A motion for an injunction is addressed to the sound discretion of the court, guided by certain established rules. This means that the court is to consider all the circumstances of each case before it will exercise this extraordinary remedy. Among the considerations which should influence a chancellor is the relative effect upon the parties of the granting or refusing the injunction. Unless the public good calls for the injunction to issue, it should not be granted where a large number of people are in favor of the acts to be restrained, and no seri. ous damage to individuals is made to appear. Where the right at law is doubtful, the case resolves itself into a question of comparative injury,—whether the defendants will be more injured by the injunction being granted, or the plaintiffs by its being withheld. In the present case the effect of an injunction, according to the evidence, will be to close the defendants' works, destroy their business, and thereby cause the loss of large amount of invested capital, while the injury to the plaintiffs, if the injunction is refused, is comparatively slight. Attoraey General v. Gas Co., 3 De Gex, M. & G. 304, 311; Attorney General v. Conservators of the Thames, 1 Hem. & M. 1; Hilton v. Earl of Granville, Craig & P. 283; Richards' Appeal, 57 Pa. St. 105, 113; Wood v. Sutcliffe, 2 Sim. (N. S.) 163; Torrey v. Railroad Co., 18 N. J. Eq. 293; Railroad Co. v. Prudden, 20 N. J. Eq. 530.
The plaintiffs admit that this suit was brought at the request of Benjamin Barker, Jr., one of the counsel in the case, whose father is the principal witness in their behalf, furnishing money to carry on the
litigation, and directing the taking of the evidence. A court of equity does not look with favor upon a suit brought merely for the purposes and at the instigation of another. Pentney v. Commissioners, 13 Wkly. Rep. 983; Forrest v. Railway Co., 4 De Gex, F. & J. 125.
Considering the circumstances under which this suit was brought, the doubt in the mind of the court on the question of nuisance, the want of diligence on the part of the plaintiffs in instituting suit, the long period of time which the defendants have carried on their business undisturbed and without complaint, and the serious injury which the relief here prayed for would cause them and the large number of people whom they employ, I am clear that no injunction should issue in this case. Injunction denied, and bill dismissed, with costs.
TUTTLE et ux. v. BRIGHTMAN et al.
(Circuit Court, D. Rhode Island. December 21, 1892.) In Equity. Sjit hy Elias Tuttle and wife against William J. Brightman and others to enjoin the continuance of a nuisance. Bill dismissed.
Patrick J. Galen, Benjamin Barker, Jr., and Arnold Green, for complainants.
Miner & Roelker, for defend ints.
COLT, Circuit Judge. Às the facts in this case are substantially like the case just considered, (53 Fed. Rep. 422,) the same conclusion is reached, and the same order may be entered.
Injunction denied, and bill dismissed, with costs.
WALCOTT v. WATSON et al.
(Circuit Court, D. Nevada. November 7, 1892.) 1. EQUITY RULES-ANSWER UNDER OATH-EVIDENCE.
When an answer is verified, as called for by complainant, and the allegations of the answer are responsive to complainant's bill, the denials therein must, in order to entitle coniplainant to any relief, be overcome by the satisfactory.evidence of two witnesses, or of one witness corrobo
rated by circumstances which are equivalent in weight to another. 2. EVIDENCE-ORAL CONTRACT-DECLARATIONS BY STRANGERS.
In an equity suit for the enforcement of an oral contract to convey mining claims, the declarations of defendant, made to strangers to the transaction, in general chance conversations, are insufficient to establish
the contract. 3. SAME-MINING COPARTNERSHIP-TRUST-INSUFFICIENCY OF EVIDENCE.
Upon a review of the facts, which are fully stated in the opinion, held, that the evidence was insufficient to establish a mining copartnership between the parties, or to create any trust by operation of law, or to justify
a decree for specific performance. 4. SAME_CONTRACT_SPECIFIC PERFORMANCE.
Whether a contract be such as is provable by parol, or is required by the statute of frauds to be in writing, it must be certain and unequivocal in all its essential terms, either within itself, or by reference to some agreement or matter, or it cannot be enforced. In Equity. Bill for dissolution of a mining copartnership, and for a decree compelling defendant to convey an undivided one-half interest in certain mining claims. Bill dismissed.
A. C. Ellis and W. A. Beatty, for complainant.
HAWLEY, District Judge. This is a bill in equity. Sarah C. Watson, wife of A. R. Watson, died after the commencement of this suit, and proper substitution has been made. Reference need only be made to the defendant A. R. Watson. Complainant lives in Califor. nia. Defendant resides in White Pine county, Nev. Complainant claims to be the owner of the undivided one half of certain mining claims and water rights in Robinson and Osceola mining districts, situate in White Pine county, Nev. She avers that a mining copartnership was formed between her and the defendant, A. R. Watson, in said claims and water rights, and prays for an accounting of the rents, issues, and profits which have been derived therefrom, for a dissolution of the copartnership, and for a decree compelling defendant to convey to her the undivided one-half interest in the properties de scribed in the bill.
The contention of complainant is that in February, 1888, complainant and defendant were respectively the owners of certain mining claims, and also owned certain other mining claims as tenants in con!mon; that, prior to that time, the complainant owned certain mining claims in the mining districts aforesaid, in common with defendant, Watson, and Cox and Dodge; that they had been engaged for several years prior to February, 1888, in developing the property, and in an endeavor to sell the same; that the complainant had advanced large sums of money for such purposes to Cox, Dodge, and defendant, and that she had succeeded, by regular deeds of conveyance, to the interests of said Cox and Dodge in certain of said claims; that defendant was a poor man, with limited means, and that complainant had advanced all the money which had been raised or used in or about the development of the various mining properties mentioned in the bill prior to February, 1888; that in the month of February, 1888, (should be March,) the complainant and defendant entered into a mining copartnership, the terms of which were that complainant was to contribute to the partnership all of her interests in the mining claims in both of said mining districts, whether her interests stood in her name alone or in common with defendant or other persons; that defendant was to contribute all his interests in the mining claims in both of said districts, whether standing in his own name or in common with the complainant; that the complainant agreed to advance money for the improvement and development of the mining properties, and to sell or dispose of the same; that defendant agreed to give his skill, experience, and knowledge as a practical miner in opening up, developing, and working said claims; that the complainant and defendant were to be equal owners in the mining properties, and in the rents, issues, and profits thereof. Complainant claims that in pursuance of this agreement, and at the time it was entered into, in White Pine county, she paid defendant $200 for the purpose of carrying out the terms of said contract and agreement of copartnership, and particularly for the purpose of an expenditure upon the Joanna mine, which claim is the principal bone of contention in this suit; that at
the same time she gave to Mrs. Watson the sum of $52; that afterwards, and in further pursuance of said agreement, complainant advanced to defendant various sums and amounts of money, aggregating over $500. Complainant, in her bill, in this connection alleges that in the month of August, 1888, she advanced to the defendant, A. R. Watson, and at his request, and under and in pursuance of said contract, and for the purpose, as represented to complainant by the defendant, A. R. Watson, of removing certain liens upon said mining claims and property standing in the name of the defendant, A. R. Watson, which said defendant represented he had created, and particularly from the Joanna mine, the Great Western mine, and the Joanna No. 2 mine, in said Robinson district, the sum of four thousand dollars in cash, and, in addition thereto, executed her promissory note for one thousand dollars, and delivered the same to the defendant, A. R. Watson, upon his representation that the same was necessary to protect the title and right of possession of complainant and said defendant in and to said mining properties."
The bill of complaint was verified, and a verified answer was not waived. The answer denies each and every allegation of the complaint, except as therein admitted. The admissions necessary to be noticed are "that complainant, as the agent and for and on behalf of one Mrs. Ashley, and not otherwise, as complainant informed him, loaned said defendant $4,000 at the time and place alleged in complainant's bill.
That he told complainant that if she could sell any mine or mines of defendant in said Robinson and Osceola mining districts he would give her half the money realized from said sales, provided the mine or mines were sold at a price fixed and approved by defendant; and in the year 1888 he had an understanding and agreement with complainant that she should have the privilege of selling any mine or mines owned by defendant in said districts, or either of them, for one year, upon which she would put up the money to pay the annual assessment work, and have and receive one half of the sum realized from the sale of said mine or mines. That, in pursu. ance of said agreement, she advanced the sum of $100 to defendant to do the annual assessment work on the Joanna mine in the year 1888, and said money was expended in doing said work. That, in addition to the expenditure of said $100 on said Joanna mine, said defendant expended more than $200 additional in money and labor of his own. That in the month of August, 1888, defendant told complainant that he would give her one half of the Joanna mine if she would furnish a centrifugal mill that would crush 25 tons of ore per day, to work the ores of the said Joanna mine. Said mill was to be sent up by her to said district in September of the same year, but to carry out said agreement said complainant wholly failed, neglected, and refused.” That in the month of February, 1888, complainant proposed to him to relocate about one dozen copper claims, which he declined to do, as the claims were “wild cats.” That at said time complainant was negotiating to bond and sell to one Bailey 13 copper mines, owned by defendant. That upon his refusal to relocate the claims in the joint name of complainant and defendant she requested him to relocate the claims, which he did, and that she advanced to him $200 for that purpose. That the bond to Bailey fell through, and that complainant subsequently negotiated to bond and sell all of said copper mines and an iron mine known as the "Pilot Knob" to one Derre. That, in putting said mines in shape to be inspected by experts, he incurred an expense of three or four hundred dollars, none of which has ever been repaid to him. That said copper mines were bonded to said Derre. That after the transfer of the bond to Derre he desired an extension of time within which to comply with its terms upon his part. That de fendant refused to extend the time, except upon condition that $5,000 should be advanced to pay off certain incumbrances upon his property. That at that time complainant wrote that the sale of the copper mines was a certainty, and in the month of August, 1888, she told him that she had procured $4,000 from her aunt, Mary Ashley, to be loaned to him upon certain terms, whereupon “she paid him the $4,000, and he gave her an order for $10,000, payable out of the money to be realized from the sale of said copper mines, (the terms referred to,) and complainant agreed to send defendant the other $1,000 on the first of the succeeding month of December,
but complainant failed to send $1,000.” The mining properties described in the bill of complainant include 44 different mining claims, most of them copper, one iron, others silver, and some gold claims.
The answer is verified, and is responsive to complainant's bill. The denials in the answer must, therefore, under the equity rules of this court, be overcome by the satisfactory evidence of two witnesses, or of one witness corroborated by circumstances which are equivalent in weight to another, before complainant can be granted the relief she asks. Slessinger v. Buckingham, 8 Sawy. 469, 17 Fed. Rep. 454; Vigel v. Hopp, 104 U. S. 441; Morrison v. Durr, 122 U. S. 518, 7 Sup. Ct. Rep. 1215. Judge Sawyer, in Slessinger v. Buckingham, called the attention of counsel to this rule, and pointed out the great advantage to complainants of waiving an answer under oath.
The testimony is very voluminous, conflicting, contradictory, and, in many respects, unsatisfactory. Complainant and defendant are the principal witnesses. Their correspondence continues over a period of five or six years, and numerous letters of both parties have been introduced in evidence. There are several letters, written by defendant, that of themselves tend to corroborate the testimony given by complainant; but, when all his letters are examined, it is found that both before and after the alleged agreement, claimed to have been made in February, 1888, the defendant indiscriminately used the words “I,” “we,” “our,” “your," “us,” “mine.” Complainant's letters to him in relation to their interests in the mines in Osceola and Robinson mining districts do not make any special mention of any agreement or understanding such as she testifies to as having been made in February, 1888, but constantly allude to the prospects of making a sale of the properties. A large majority of her letters speak of the prospective sale of the copper mines, in regard to which there is no controversy in this suit. Her letters are not inconsistent with the claim of defendant that the agreement between them was to the effect that she should have the privilege of selling any mine he owned for the period of one year, upon which she would advance sufficient money to pay the annual as