Yarwood v. Cedar Canyon Consolidated Mining Co. , 37 Wash. 56 ( 1905 )

Per Curiam.

This is an action brought by the appellants against the respondents to recover upon certain injunction bonds. Prom the record it appears, that the respondent Cedar Canyon Consolidated Mining Company brought an action against the appellants, to enjoin them from extracting ores from a certain mineral vein, which the Respondent claimed to own, and which was also claimed by the appellants. At the commencement of the action a temporary restraining order was issued, restraining them from mining ore pending a hearing on an application for a temporary injunction, notice of which hearing was given at the time of the service of the restraining order. The appellants appeared in response to the notice, and contested the issuance of the temporary injunction on the ground that they were the sole owners of the property in question. The court, however, found for the respondent, granting a temporary injunction on the filing of a bond in the sum of $2,000. Later on the appellants answered in the main action, setting up, in addition to their claim of sole ownership, an equitable claim to two-sevenths of the property, on which they asked affirmative relief, in case their claim to the sole ownership should be determined against them.

On the trial the contest as to the claim of sole ownership was submitted to a jury, and determined against the appellants. The judge thereupon tried the equitable issue¹, finding that the appellants were entitled to a two-sevenths interest in a part of the claim. Both sides appealed to this court, which modified the judgment below, holding that the appellants were entitled to a two-sevenths interest, as tenants in common with the respondent above named, in. the whole of the mineral vein in question, on payment to the respondent of their proportionate share of the purchase price¹, with interest. After the remittitur went down, this payment was made, and judgment went accordingly, the injunctions theretofore entered being dissolved. The appellants thereupon brought this action upon the injunction bonds, and on judgment going against them, have appealed to this court.

While elaborate briefs have been filed on the part of the appellants, we have found it unnecessary to follow the argument as made therein. The contention of the appellants that the injunction bonds were -wrongfully issued, as to them, is based on the finding of the court that they were tenants in common, with the respondent Cedar Canyon Consolidated Mining Company, in the mineral vein, having an equal right with the respondent to its possession; and hence their ouster at the suit of the respondent was wrongful, and they have, the right to recover such damages as they have suffered by the ouster. But the answer is that they had only an inchoate right to the vein, contingent on their paying their proportion of the purchase price; hence they had no right of possession, until they had either paid, or tendered payment of, such purchase price. As they did not pay, nor tender, when the respondent sought to oust them, the injunction was rightfully issued, and it did not become wrongful by their subsequent payment. Affirmed.