
    MONTANA ORE PURCHASING CO., Appellant, v. BUTTE & BOSTON CONSOLIDATED MINING CO. et al., Respondents.
    (No. 1,318.)
    (Submitted April 16, 1901.
    Decided June 24, 1901.)
    
      Highway — Prescription — Limitations — Injunction — E riden ce — Discretion.
    1. Plaintiff for several years had hauled the ore from its mine across defendant’s land to a public highway. The public had traveled across the land where they chose since 1887, but the particular road -since traveled by plaintiff was constructed by persons hauling its ores under contract in 1893. Held, that plaintiff had not acquired a prescriptive right to such road under Compiled Statutes of 1887, Div. I, Sec. 29, fixing a limitation of five years for actions to recover real property, when the Code of Civil Procedure took effect, July 1, 1895, which, in Section 4S3, prescribes a limitation of ten years, since such right over uninclosed land cannot be acquired until the travel has been confined to a particular way for the length of time prescribed by such statutes.
    2. Where, on an application for an injunction pendente lite to restrain defendants from obstructing a private road which plaintiff claims by prescription, the evidence is conflicting, the finding of the trial court that such right has not been acquired, and order denying an injunction, should be affirmed.
    3. Under Political (’ode, Sec. 2G00, providing that roads laid out or erected by others than the public, dedicated or abandoned to the public, are public highways, such dedication or abandonment is not shown by mere user until the period of limitations of actions to recover real property has elapsed.
    4. Where, on an application for injunction to restrain the obstruction of a. road, the trial court admitted irrelevant evidence, its order should not be reversed on that ground, if there was sufficient competent evidence to sustain its findings, since it will be presumed that its decision was based on such competent evidences
    
      Appeal from District Court, Silver Bow County; John- Lindsay, Judge.
    
    Action by tlie Montana Ore Purchasing Company against the Bntte & Boston Consolidated Mining Company and others. From an order refusing- a preliminary injunction, plaintiff appeals.
    Affirmed.
    
      Messrs. Mediation & Cotter and Messrs. Clayberg & Corbett, for Appellant.
    
      Messrs. Forbis & Evans, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

This action was instituted by the plaintiff for the purpose . of obtaining a perpetual injunction restraining the defendants from obstructing a certain way or road used by plaintiff in hauling lumber and other supplies to its mines and in conveying the ores extracted therefrom to its smelter. The smelter is situated near Meaderville, in Silver Bow coxxnty, northeast of Bxxtte. The pxxblic highway leading from Bxxtte to Meaderville runs first east from Bxxtte, and then north, passing immediately to the xxrest of the smelter. A short distance to the soxxth of the smelter the road in controversy leaves this, highway, and leads off in a northwesterly direction, passing over the Never Despair, Michael Devitt and other patented mining claims belonging to the defendant Bxxtte & Boston Consolidated Mining Company, to the Rarxxs and Johnstown mines, which belong to the plaintiff. The Michael Devitt claim lies in an easterly and westerly direction contigxxoxxs to and west of the Never Despair claixn, and the l'oad in question, entering xxpon the former claim near the soxxtheast corner, passes diagonally over it towards the northwest. At the time this sxxit was brought, the defendant corporation, through the other defendants, its officers and ageixts, was engaged near the soxxtheast corner of the Michael Devitt claixn in making excavations for the foxxndations of á boiler lxoxxse and oi*e bins, which it intended to xxse in hoisting and storing ore from a shaft sunk on the Never Despair claim, a short distance to the east. The complaint alleges that these operations of the defendants had seriously obstructed the road, and deprived the plaintiff of a free passage over it; that the said road had for many years been used and traveled by the public generally with the knowledge and acqxxiescence of the defendant corporation and its predecessors, and in common with them; that the same is a pxxblic highway by prescriptive use; and that the obstructions created by the defendants woxxld resxxlt in special damage to plaintiff, in that they exxt off all access to its mines, and necessitate a complete suspension of its operations. The plaintiff also' alleges that it has a special easement in the said way by prescriptive use by itself and its predecessors.

The defendants admit that their operations interfere with free passage over the road, but deny that the road is a public highway by prescriptive use or otherwise, or that plaintiff has a special right or easement therein. Upon the filing of the complaint the district court made an order to show cause why an injunction ad litem should not issue. Upon a hearing the order was discharged, and the injunction denied. The plaintiff has appealed.

1. The principal question presented to this court is whether the district court abused its discretion in refusing to issue the injunction as prayed. We do not think it did.

Plaintiff did not claim, nor did it make any effort to show, that the authorities of Silver Bow county had ever attempted to establish by the ordinary legal proceedings, or to assume control over, the road in controversy, or that plaintiff had ever secured a right of way therein under the provisions of the statute regulating’ the procurement of access by private roads 1o mines and mining claims. (Compiled Statutes 18S7, Fifth Division, Secs. 1496-1507; Political Code, Secs. 3630-3641.) Its effort was directed altogether to an attempt to show adverse user by the public for the period prescribed by law as sufficient to bar a recovery of the land occupied by the road, and, in case the evidence fell short of establishing this, to show' that the user by plaintiff had been exclusive and adverse for this period; so as to establish the right to such a private way as is provided for under the sections of the statute cited, and thus to bring the case within the principle of State v. Auchard, 22 Mont. 14, 55 Pac. 361. Under the law as declared in that case, a high-wyay by prescription exists only where the general public has used the Avay without substantial interruption for the period of time fixed by the statutes of limitation applicable to' lands. By analogy, and of necessity, the same rule applies to private ways provided for under the statutes cited. Prior to July 1, 1895, when the present Code went into effect, the- limitation fixed by law' was five years. (Comp. St. 1887, First Division, See. 29.) Under the new Code the limitation was changed to ten yeai's. (Code Civ. Pfoc. Sec. 483.) The new limitation was also made to apply to all causes of action not already barred under the old law, the same as if they had arisen after the Code went into- effect, except that the time already elapsed should be counted as. a part of the limitation under the Code. (Code of Civil Procedure, Secs. 3455, 345 6,-3482; Guitermanv. Wishon, 21 Mont. 458, 54 Pac. 566; Sherman v. Nason, 25 Mont. 283, 64 Pac. 768.) This suit was brought on April 29, 1898. Under the rule established by the Code, if the limitation had expired on July 1, 1895, plaintiff’s rights were not affected by the Code provision; but, if the limitation had not then expired, the new limitation applies, and the time already elapsed on July 1, 1895, should be counted as a part of the ten-year limitation. The plaintiff’s evidence tended to show that there had been a considerable amount of travel over the Michael Devitt and the adjoining claims, beginning as early as 1887 or 1888, from the neighborhood of the smelting works, and from along the line of the Meaderville road in the direction of plaintiff’s mines, and thence towards the northwest to other mines and to the village of Walkerville, and that there had existed from that time a well-defined way for teams. It is thus seen that this evidence tended to establish a highway by prescription. On the other hand, however, defendants submitted evidence tending to show that the whole country in that neighborhood was open and uninclosed; that people generally traveled over it in any direction they chose; that no well-defined track or way existed anywhere in the neighborhood of the road in question until the summer of 1893, when parties who had made a contract with plaintiff to haul ore from its mines to' its smelter constructed the road for their own convenience, without aid or direction from plaintiff. The evidence thus ‘presented a sharp conflict, and it is apparent that the district court found in favor of defendants’ contention. Upon this, theory of the case the contention that the road is either a public or private way by prescriptive use cannot be sustained; for, if the way. did not become fixed and defined until 1893, — and we cannot say that the district court was wrong in finding this to be the fact,— tli§ new limitation must be applied, anxL the plaintiff’s contention fails. Por we understand the rule to be that, where the claim is founded upon rise only, without color of title, it must appear that the use has been • confined to the particular way for the full time of the prescribed limitation. (State v. Anchará, supra.) Travel by the public generally over uninclosed land, but not confined to any particular way, will not inaugurate such an adverse claim as will presently ripen into a right which may be asserted against the owner. (State v. Aichard, supra; Elliott on Boads and Streets (2d Ed.) Sec. 175.) The evidence being in conflict, and the finding of the district court thereon not appearing to be the result of an unwise exercise of discretion, this court will not interfere. That court saw and heard the 'witnesses, and we would not be justified in saying that it was an abuse of discretion to give credit to those who testified in behalf of defendants.

Upon the whole case the defendants made a reasonable showing that the plaintiff’s claims are unfounded in fact, and, under the rule heretofore declared by this court in similar cases, the order will not be reversed on the ground that the trial court might have entertained a different view. (Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, and cases cited.)

Counsel argue that, as it appears from the evidence that the road in controversy had been in use for more than five years at the time of its obstruction, it is a public highway within the meaning of Section 2600 of the Political Code. This section was construed in State v. Auchard, supra, as “a remedial statute, curing irregularities, but not supplying jurisdiction, where none was acquired, in the creation of the roads, and as recognizing the existence of highways by prescription when they had been used or traveled by the people generally for the period named in the statutes of limitation.” It is not susceptible of the construction contended for by the plaintiff.

2. The court admitted, over the objection of the plaintiff, evidence tending to show the character of the buildings which the defendants were engaged in erecting, and the amount intended to be expended thereon. Counsel for appellant contend that this evidence was irrelevant and immaterial, and that the action of the trial court in admitting it was prejudicial. We are not prepared to say that the evidence was not properly admitted, but, conceding that plaintiff’s position is correct, we think the error without prejudice. Presumably the trial court based its findings upon such of the evidence before it as was competent, excluding from consideration, such as had no weight or relevancy. The other evidence in the record, the competency of which is unquestioned, was sufficient to justify the findings, and the order will not, therefore, be reversed. (Merchants’ Nat'l Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851.)

The order is affirmed.  