Legal Opinion

Gemmell v. Swain

Montana Supreme Court

Decided June 3, 1903No. 1,585PublishedCited by 9 opinions

Appeal from District Court, Silver Bow County; William Clancy, Judge. Suit by George Gemmell against Jolm Swain and others. From a judgment for defenants, plaintiff appeals. STATEMENT OE THE CASE. This action was commenced in the district court by the appellant, wlio was plaintiff below, to secure an injunction restraining the defendants from entering upon, sinking shafts, running tunnels, discovering or attempting to- discover veins of mineral in certain designated lands.

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Appeal from District Court, Silver Bow County; William Clancy, Judge. Suit by George Gemmell against Jolm Swain and others. From a judgment for defenants, plaintiff appeals. STATEMENT OE THE CASE. This action was commenced in the district court by the appellant, wlio was plaintiff below, to secure an injunction restraining the defendants from entering upon, sinking shafts, running tunnels, discovering or attempting to- discover veins of mineral in certain designated lands. The complaint alleges that on December 19, 1899, a portion of section 17, township 3 N., range 7 W., to the extent of 20…

1Opinion of the Court

MR. JUSTICE1 HOLLOWAY,

after stating the case, delivered the opinion of the conrt.

The only question for determination is whether the complaint states facts sufficient to entitle the plaintiff to an injunction. The complaint, upon its face, shows that the land in dispute was vacant, uninclosed, and unimproved mineral land of the United States; that the plaintiff went upon it, and was prospecting for veins of mineral-bearing rock, when he was enjoined. He had made no discovery, and consequently no location had been made, and none could be, for a location can rest only upon an actual discovery of…

2Cases cited3 opinions

  1. Hauswirth v. ButcherMontana Supreme Court · 1882
  2. Harley v. Montana Ore Purchasing Co.Montana Supreme Court · 1903
  3. Upton v. LarkinMontana Supreme Court · 1885

3Cited by9 opinions

  1. Cook v. KlonosCourt of Appeals for the Ninth Circuit · 1908
  2. United States v. HurstDistrict Court, D. Wyoming · 1924
  3. Adams v. BenedictNew Mexico Supreme Court · 1958
  4. Hanson v. CraigCourt of Appeals for the Ninth Circuit · 1909
  5. Ranchers Exploration and Development Co. v. Anaconda Co.District Court, D. Utah · 1965

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