
    Montana Ore Purchasing Company, Respondent, v. Butte and Boston Consolidated Mining Company, Appellant.
    
      Injunction in a Hew York State court, preventing the pmsecution of an equity suit in Montana—when improper.
    
    A lease of mining land in Montana secured to the lessee the right to store water and “to dump tailings from any and all works erected on the leased premises by the second party (the lessee),” on adjoining land of the lessor. Subsequently the lessor brought an action in trespass in the Circuit Court of the United States for the district of Montana to determine the lessee’s right to deposit, upon the lessor’s land, slag from a smelter erected on the demised premises and water and refuse from a concentrator not erected thereon.
    A judgment was rendered to the effect that the land in question was owned by the lessor, subject to the lessee’s right to dump thereon “ tailings (which under the finding of the jury herein is construed and hereby adjudged to mean slag also) from any and all works now erected or, which may hereafter be erected on the said leased premises. ” The lessor, in accordance with the Federal practice in Montana, then brought an equity suit in the same court to enjoin the lessee from depositing the'refuse from the concentrator upon the leased premises, whereupon the lessee brought an action in the Supreme Court of the State •of-New York against the lessor for the specific performance of the' contract of lease, and obtained a preliminary injunction restraining the lessor. “ from- in any way or manner interfering (whether by action' or otherwise) With the plaintiff’s right of the use of the property, * * * and in depositing its tailings (including slags and other refuse resulting from the mining operations of minerals).”
    
      Meld, that the injunction order should be vacated, as its effect was to enjoin the prosecution of the equity suit in the Federal court under circumstances which did not justify such a course;
    That the order was also improper, in that, as the lessor claimed that the Federal court judgment, which was res adjudicata between the. parties, was conclusive ■ against the lessee’s right to deposit the refuse from the concentrator upon the land in question, it was highly proper that the court which rendered- the judgment should construe its effect.
    Appeal by the defendant, the Butte and Boston Consolidated Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1899, denying his motion to vacate a preliminary injunction.
    
      Louis Marshall, for the appellant.
    
      Franklin Bien, for the respondent.
   Barrett, J.:

The plaintiff, a corporation organized under Montana laws, sues the defendant, a domestic corporation, for the specific performance of a contract executed the 16th day of November, 1892, between one Heinze, the plaintiff’s predecessor, and the Bntte and Boston Mining Company, the defendant’s predecessor. By this instrument the Butte and Boston Mining Company leased to Heiiize a tract of land in Silver Bow county, Montana, with the right to the lessee to store water upon certain adjoining land of the lessor’s, and also all right to dump tailings from any and all works erected on the leased premises by the second party (the lessee) on to any ground of the party of'the first part” (the lessor), within certain designated limits. The complaint and affidavit upon which the injunction was granted allege that the defendant threatens to prevent the plaintiff from exercising its rights under the easement thus conferred, and that, if this is permitted, irreparable injury will result to the business of the plaintiff. The order directs that the defendant, its agents and servants, be “ restrained and enjoined from in any manner interfering with the plaintiff * * * in the enjoyment and use by the plaintiff of the property referred to in . the complaint * ' "x" * and they and each of them are hereby.restrained and enjoined from in any way or manner interfering (whether by action or otherwise) with the plaintiff’s right of the use of the property, * * * and in depositing its tailings (including slags and other refuse resulting from the mining operations of minerals),” etc.

By the affidavits it appears, practically without contradiction, that the plaintiff has erected a smelter upon the leased premises and a concentrator upon adjoining land. By the concentrator the ore is crushed and the refuse washed away. What remains is then heated in the smelter, and the metal is thus separated from the dross, which is called slag. The plaintiff allows the water from the concentrator to flow upon the land which is subject to the easement, where it is clarified, so that it may. be again used. The refuse mingled with the water is thus deposited upon the defendant’s land. The plaintiff also deposits thereon slag from the smelter. The defendant denies the plaintiff’s right to do either of those things, claiming that the slag is not “ tailings,” and that the refuse from the concentrator may not be deposited on the adjoining land because the concentrator is not upon the leased' premises. In rebuttal, the plaintiff alleges facts tending to show that the parties .contemplated such a use of the property.

In August, 1897, the defendant brought an action against the plaintiff in the Circuit Court of the United- States for the district of Montana to recover damages for trespassing upon the land in question, and depositing debris thereon. The judgment decided that the land, belonged to the present defendant (the plaintiff there), subject to the easements created by the contract, among which was the right to dump. tailings (which under the finding of the' jury herein is construed and hereby adjudged to mean slag also) from any and all works now erected, or which may hereafter be erected on the said leased premises ” upon the land described in the contract. After the rendition of this judgment, the defendant here (plaintiff there), in accordance with the Federal practice in Montana, undertook to bring on for hearing an equity suit which it had begun, in the same court, to prevent the plaintiff here (defendant there) from depositing on its property refuse from the concentrator. Thereupon the plaintiff brought the present action.

We think it was plainly erroneous, directly or indirectly, to enjoin the prosecution of the Montana actions. And such was clearly the effect of the injunction. Undoubtedly the courts of this State may, in a jn’oper case, restrain the parties to an action in a Federal court from proceeding therewith. (Stevens v. Central National Bank, 144 N. Y. 50.) But absolutely nothing is shown here to justify such a course. The United States Circuit Court had full jurisdiction of the parties and the subject-matter, and no attempt is made to prove any fact which would authorize our courts to enjoin action therein. •

We think further that, in its whole scope, the injunction was unauthorized. The respective rights of the parties have been at least partly settled in the action at law brought in Montana. The defendant claims that the judgment precludes the plaintiff from' depositing the refuse from the concentrator upon the adjoining land,- and is attempting to prosecute an equitable action, based upon such judgment, to obtain the proper relief. The judgment already rendered is res adjudioata. If there is any doubt concerning its scope or effect, all questions on that head will be, and properly should be, settled in the equity suit. One of the parties to that controversy cannot be permitted to invoke the aid of our courts either to. pass anew upon the construction of the contract, or to interpret the decision already given, when that decision is about to be construed, and full effect given to it by the very court which rendered it. As our courts under these circumstances are in no position to define and enforce the rights of the parties under the contract, it necessarily follows that any injunction based thereon was unauthorized.

While we must condemn the delay which attended the making of the present motion, yet we do not think that the defendant has been guilty of such laches as should prevent it from asserting its legal right to resist the intervention of our courts in the present controversy.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, but in view of the defendant’s delay in moving, without costs.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.  