United States v. Curtis Howe Springer (A/k/a Curtis H. Springer) and Helen Springer, Husband and Wife

478 F.2d 43 UNITED STATES of America, Plaintiff-Appellee, v. Curtis Howe SPRINGER (a/k/a Curtis H. Springer) and Helen Springer, husband and wife, et al., Defendants-Appellants. No. 71-2309. United States Court of Appeals, Ninth Circuit. Nov. 30, 1972. Rehearing Denied March 5, 1973. George W. Nilsson (argued), Monta W. Shirley, Los Angeles, Cal., for defendants-appellants. Carl J. Strass, Atty. (argued), Edmund B. Clark, Atty., Kent Frizzell, Asst. Atty. Gen., Washington, D. C., Ernestine Tolan, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before HAMLEY and WRIGHT, Circuit Judges, and POWELL, * District Judge. PER CURIAM: 1 The United States brought this action against Curtis Howe Springer and others for ejectment, an injunction, and damages in connection with defendants' use of their unpatented mining claims on real property owned by the United States in San Bernardino County, California. 2 The United States moved for a partial summary judgment permanently enjoining defendants from using the real property in question for any purpose other than prospecting, mining or processing of minerals, and uses reasonably incident thereto. The…

(dissenting from the refusal of the court to take the case en banc).

Springer is operating some kind of a health spa on mining claims on government land.

This involves several buildings built on the claims and the use of some spring water claimed to contain health-giving minerals. It is not contended the business is an unlawful one.

What the panel has done is to approve the granting of a temporary injunction where no final judgment or decree has been entered. No threatened irreparable injury was ever proved. Certainly by final judgment a landowner is entitled to have one adjudged to be on the land improperly and is entitled to have the defendant put off by mandatory injunction, but not now.

What we do is to approve the practice of giving the government “two bites at the cherry,” — one is on preliminary in *47 junction and the second is on trial on the merits.

There was no balance of convenience here in favor of government. Any damage done was when the establishment was erected. It is not suggested that any real damage has been done since then.

Although the case is not mentioned, the panel has quietly overruled such cases as McCarthy v. Bunker Hill and Sullivan Mining and…

The United States brought this action against Curtis Howe Springer and others for ejectment, an injunction, and damages in connection with defendants’ use of their unpatented mining claims on real property owned by the United States in San Bernardino County, California.

The United States moved for a partial summary judgment permanently enjoining defendants from using the real property in question for any purpose other than prospecting, mining or processing of minerals, and uses reasonably incident thereto. The district court held that while the Government was not entitled to a permanent injunction at that stage of the proceedings, it “may well be entitled to an injunction pendente lite” enjoining defendants from using the property for non-mining and non-prospecting purposes. United States v. Springer, 321 F.Supp. 625, 627 (C.D.Cal.1970).

The court noted in its opinion that, for many years, defendants have been using the property for the purpose of operating a resort hotel with related facilities, for the manufacture of “health” foods, and for such other purposes as the preparation of printed materials and tape recordings for radio broadcasts. The court also observed that…