
    MAGNET MINING COMPANY, Respondent, v. PAGE AND PANACA SILVER MINING COMPANY, Appellant.
    Injunction, when to be Dissolved — Denial oe Equities. An injunction granted upon a complaint, the allegations of which have been fully and fairly denied by the answer, should on motion and in the absence of further showing be dissolved, unless in exceptional cases when good reason appears for continuing it.
    Motion to Dissolve Injunction on Complaint and Answer. On a motion to dissolve an injunction, heard upon complaint and answer alone, the full and fair denials of the answer are taken as true.
    Appeal from the District Court of the Seventh Judicial District, Lincoln County,
    The plaintiff claimed to be the owner and in possession of the quartz ledge known as the Panaca, on Panaca Elat, Ely Mining District, Lincoln County, and that defendant, on April 16, 1874, entered upon a portion of the same,- and ejected plaintiff therefrom to its damage in the sum of thirty thousand dollars. The complaint also set forth that defendant had extracted from the mine valuable ores, and threatened to continue the extraction and removal of ores, and prayed for damages, an injuncton and other relief. Upon this complaint, which was filed June 1, 1874, the district judge ordered the application for an injunction to be heard on June 12, 1874, and in the meanwhile issued a restraining order to ' ‘ remain in full force and effect until the 12th day of June, a. d. 1874, at 10 o’clock, A. M., of that day, and until further order herein. ”
    The defendant filed its answer on June 10, denying fully all the material allegations of the complaint. Several stipulations were afterwards made continuing the time for hearing the application for an injunction, but it seems that application never came up. On July 7, defendant moved to dissolve the restraining order; and on July 10, that order was modified “ so as to allow the defendant to continue the working of the ground in controversy, and described in tbe foregoing order, and to raise tbe ore to tbe surface or dump, and tben deposit tbe same upon tbe dump, but not to remove tbe ore from tbe dump or from tbe vicinity of tbe shaft, incline or dump of defendant’s works.” On July 16, an order was entered denying tbe motion to dissolve tbe restraining order, and continuing tbat order, as modified, in force pending tbe action.
    From these orders defendant appealed.
    
      A. B. Hunt and Henry Rives, for Appellant.
    I. Tbe time embraced in tbe order restraining defendant only extended from tbe time of granting tbe order to tbe time set for tbe bearing. Rrader v. Grim, 13 Cal. 586. Tbe plaintiff could not, by its own act of negligence, or connivance, extend tbat time indefinitely, and so continue tbe restraining order in force. And tbe answer in tbe mean time coming in and denying all tbe equities of tbe bill, conclusively established tbe fact tbat plaintiff was not entitled to tbe injunction asked. Lady Bryan G. & S. M. Go. v. Lady Bryan M. Go., 4 Nev. 44; Gagliardo v. Grippen, 22 Cal. 362.
    II. Tbe judge could not enjoin defendant beyond tbe time set for tbe bearing, or tbe time to which tbe bearing was continued, to wit: June 22, because be bad decided, so says tbe order, tbat tbe defendant was entitled to a bearing before any injunction should issue, and in the mean time defendant was restrained from tbe commission of tbe acts complained of. No continuance was bad beyond June 22, either by stipulation or order, or otherwise. Defendant was on band on June 22, as ordered; no judge or plaintiff was there. Had plaintiff been present, and tbe judge been unable to bear tbe parties, be might have referred tbe matter to some other judge for bearing. Comp. Laws, Sec. 1555.
    III. Tbe judge should have granted tbe motion to dissolve tbe restraining order, for tbe reason tbat plaintiff bad waived all its rights to show cause why an injunction should issue. The failure of plaintiff to prosecute its application was a confession of its inability to maintain it; and the restraining order had expired by its own limitations. Dowling v. Polaek, 18 Oal. 625; Loomis v. Brown, 16 Barb. 325; Shermans. N. T. O. Mills, 11 How. 269; Ooatts v. Ooatts, 1 Duer, 644; Methodist Church v. Barker, 4 Smith, 463.
    IV. The injunction pending the action should have been denied, for the reason that as a general rule plaintiff must not only have the title to the ground claimed by it, but his title and right of possession must be clear, well established and not in dispute. Here defendant was shown to have been in possession for a number of years, and had expended large sums of money upon the mine claimed by it, and from which it was enjoined from removing ore. Beal Del Monte Mining Co. v. Pond Mining Co. I 23 Cal. 82.
    
      Garber, Thornton & Kelley, for Bespondent.
    No brief on file. '
   By the Court,

Belknap, J.:

Upon the filing of the complaint in this case an application was made for an injunction restraining the defendant from extracting or removing ore from certain described mining ground of which the plaintiff claims to be possessed in fee. An order was made fixing the time for the hearing of the application for the injunction; and in the mean time the defendant was restrained from the commission of the acts complained of.

The hearing of' the application was continued several times by stipulation, and, for some cause unexplained by the record, was not heard upon the day finally set for hearing. The merits were reached by motion to dissolve the restraining order. It was then modified so as to restrain defendant from removing ore from the premises in controversy.

The answer fully and fairly denies plaintiff’s alleged title and possession, and no testimony was offered upon either of these points. The questions of title and possession, therefore, stand upon the pleadings. A complete denial by the answer is taken as true, and, in the absence of testimony establishing the material allegations of the complaint, the injunction should be dissolved, unless good reasons appear for continuing it. So, in New York an injunction was retained where it could work no injury, while to dissolve it might do so, notwithstanding a full denial of the equities of the bill. Bank of Monroe v. Schermerhorn, Clark’s Ch. 309. And where the statement of the defendant was extremely improbable. Moore v. Hylton, 1 Dev. Eq. 429. ‘ And where the denial was grounded upon information and belief. Poor v. Carleton, 3 Sum. 70.

But no reasons appear to make this an exceptive case. The denials of the answer must be taken as Jirue, and so taken, the plaintiff has no ground for equitable relief.

The order appealed from isjreversed and the injunction dissolved.  