State ex rel. Parrot Silver & Copper Co. v. District Court of the Second Judicial District , 28 Mont. 528 ( 1903 )

MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the court.

1. This application was made under the provisions of Section 1314 of the Code of Civil Procedure. It is urged in this court, as it was in the court below, that the complaint does not state a cause of action, and. is so indefinite in the particulars alleged that the defendant should not be required to answer the same, or show cause why the order applied for should not be made.

The theory of the action is that,.as the end lines of the Nipper are parallel, and the vein in controversy whose apex is found therein passes through the end lines, the plaintiffs are entitled to follow the vein on its dip into the lands of the defendant. It must be conceded that if this theory is supported by the facts, and if it further .appears that the defendant asserts title to any of the ore bodies found upon the exterior portions of the Nipper vein beneath the surface of its claims, the action may be maintained, and the plaintiffs should be granted a decree quieting their title to such ore bodies; for the assertion by the defendant, under such circumstances, of an adverse claim to exterior portions of the vein, is sufficient to authorize tire court to entertain the action, and to enter such decree therein as the facts justify. (Montana Ora Pur. Co. v. Boston & Montana C. C. & S. Minning Co., 27 Mont. 288, 70 Pac. 1114.) TJnder the holding announced in that case, the possession of the surface of a claim and of the apex of the vein found therein, so situated in its dip and strike as to give extralateral rights, draws to1 it also the possession of the exterior portions of tire vein, in the same way and to the same extent as the possession of the surface implies possession of everything perpendicularly beneath it. This presumption is subject to tire prima facie presumption, in favor of the adverse claimant, arising from the principle, “Cujus est solum, ejus est ad inferos/’ but when the possession of the surface and apex is shown, with the other facts establishing the right to pursue the vein on its dip; the presumption arising from the cujus solum doctrine is overturned and disappears. This must be so; otherwise the owner of a vein which dips beneath his neighbor’s surface, though he has been granted title to it under his patent, must demonstrate his title to every foot of it as it descends into the earth after it passes beyond his side lines. Such a condition would be intolerable. But this is somewhat of a digression.

We cannot upon this proceeding take up tbe questions presented upon tbe demurrer as original questions and decide tbem. Tbe jurisdiction of this court to try and determine this class of questions is appellate, and not original. It is confined to a review on appeal from tbe action of tbe district* court thereon in tbe regular way. That court is one of original general jurisdiction, and questions arising in tbe ordinary course must-be determined by it before tbe revisory power of this court may be invoked. It is sufficient for tbe purpose of an application for an order of inspection and survey, so far as tbe pleadings filed in tbe district court are converned, that it appear that an action is pending involving title to real estate. We may not look further than to ascertain this fact. If it is made to appear, from tbe allegations of tbe petition, by tbe facts stated therein, either standing alone or aided by appropriate reference to tbe allegations contained in tbe complaint, that there is good cause to believe that an examination of tbe property will aid tbe parties to present their rights in tbe proper way, and tbe court to intelligently adjust tbem, and such allegations are supported by substantial evidence, it is sufficient to warrant tbe making of the order under proper restrictions; for, if tbe party making tbe application should be held to strictness of allegation and proof, be would be required to produce to tbe court in tbe first instance tbe facts which it is tbe purpose of tbe application to obtain. Tbe remarks on this subject by this court in State ex rel. Geyman v. District Court, 26 Mont. 483, 68 Pac. 861, are pertinent, and, we think, are conclusive on tbe point urged. Tbe district court has jurisdiction of tbe action. Tbe order was proper, provided tbe showing made was “good cause,” within tbe meaning of that term as used in tbe statute. Strictly speaking, tbe statute does not require tbe filing of any petition. A motion sufficient to move the discretion of tbe court is all that is required.

But counsel say that, upon tbe showing made by tbe complaint and tbe petition, tbe property of which tbe inspection is sought belongs to the defendant, and not to tbe plaintiff, while the statute authorizes inspection and survey of the particular property in controversy, to-wit, the Nipper claim. The statute provides: “The court in which an action is pending for the recovery of real property or mining claims, or for damages for an injury, or to quiet title or to determine adverse claims thereto, or a judge thereof, may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter into or upon the property or mining claim and make survey or measurement thereof, or of any tunnels, shafts or drifts therein, for the purpose of the action, even though entry for such purpose has to be made through other lands or mining claims belonging to parties to the action.”

The exterior portions of a lode, situated as it is alleged the Nipper lode is, are substantial parts of the property conveyed by the patent, and if a stranger, under claim of title, encroaches upon such portions by means of openings of which he has exclusive control, the statute furnishes the owner the means of ascertaining the facts necessary to enable him to protect his rights, and authorizes entry for that purpose through the property of his adversary. It authorizes also a survey of the tunnels, shafts and drifts therein for the purpose of the action. If the survey and inspection must be limited with absolute certainty to the openings made upon the lode itself, and to the ascertainment of the physical and geological facts "to be found there, the purpose of the statute would be defeated. Its evident intent and purpose is to furnish the court and the parties with all the surrounding facts, so that the action may be conducted to &• proper conclusion. The extent of the inspection and survey must be limited only by the necessities of the action as they are made to appear. (State ex rel. Anaconda Copper Mining Co. v. Dist. Court, 25 Mont. 504, 65 Pac. 1020.) It is as important to know how to frame the issues in the causes as it is to produce the evidence in support of them. (State ex rel. Heinze v. Dist. Court, 26 Mont. 416, 68 Pac. 794.)

, The petition, though somewhat general in its statements, is sufficient in substance to support the order, aided, as it is, by reference to the allegations of the complaint. It does not matter that it and the complaint, speak of veins, while the evidence tends to show the existence of a single vein.

2. The facts, however, as they appear in the record, do not justify the order to the extent to which it goes. It authorizes the plaintiffs to survey all the underground workings in the entire group of defendant’s claims, between perpendicular planes passing down through the west end lines of the Nipper and Anaconda claims extended in their own direction to the south. This includes all the openings of all the claims from the surface downward, whether made by the defendant and in its possession or not. When we 'look at the issues, so fár as they are developed in the case, no reason is apparent why the inspection should be had in any of the openings not in reasonable proximity to the Nipper vein on its dip. The plaintiffs assert that the vein dips beneath the defendant’s claim at an angle varying at different points along-the strike from 85 degrees at the extreme west to 30 degrees near the shaft. It is exposed only in the Adventure, in the Parrot, and perhaps in the Bol-lona, after it leaves the territory of the Nipper, at and below the 1,000 foot level. The defendant insists that the vein crosses the side lines of the Nipper, and hence that, though it has done some work upon it, the plaintiffs have no right to complain, because they have no right to these portions of the vein. It does not appear that any work has been done in the Eialto claim below the 160 foot level, or that any possible benefit could result from an inspection of the workings of any of the claims above the 1,000 foot level, where the point of conflict is. A different situation would be presented if the defendant claimed the veiji at and below the 1,000 foot level by virtue of an older location, and of the union of the Nipper vein with a vein having its apex in defendant’s ground. Such an issue would render necessary an examination of all of the defendant’s workings from the surface, in order to determine the rights of the respective parties.

A somewhat similar issue was presented in the case of State ex rel. Heinze v. Dist. Court, 26 Mont. 416, 68 Pac. 794, and an order of examination and survey granted to- the defendant in that ease, and extended to the whole of plaintiffs claim, sustained, on the theory that the defendant might be able to learn the facts upon which the plaintiffs claim was predicated, and thus be enabled to frame the issues accordingly. The only necessity for the order in this case appears to be to enable the plaintiffs to sustain the issues tendered to the defendant.

Furthermore, the order in question seems to require the defendant to allow the plaintiffs access to the workings exclusively through shafts, and by means of appliances, in possession of the defendant. This would have been entirely proper, as' we shall presently see, if the necessities of the case had demanded such an order. The evidence tends to show, however, that most of the workings in the Adventure can be readily reached through the Nipper shaft. As to these openings, the only burden which the defendant may be called upon to assume is to permit free access to them. The duty of lowering and raising the plaintiffs5 agents should have been limited particularly to those workings to which access is not practicable except through the defendant’s shafts and by use of its appliances. Again, the order makes no provision for the payment by the plaintiffs of the expenses incident to the lowering and raising of their agents by means of the defendant’s appliances. Section 1317 of the statute requires the applicant to pay all the expenses of examination, survey and inspection, and clearly such expenses as are attendant upon access to the property would fall within the purview of this provision. (State ex rel. Anaconda Copper Mining Co. v. Dist. Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103.) The order should have required payment of such expenses upon the presentation of a claim therefor by the defendant.

3. The Dives claim was properly excluded from the order, because it was shown not to belong to the defendant. Defendant, therefore, has no ground to complain with reference to it. The order should also have excluded the Pialto claim, for the reason that there does not appear to be any necessity for any inspection of it. None of tbe openings made in it are below tbe 160 foot level, and benee no light could be sbed upon tbe issues involved by an inspection of them. As to claims mentioned in tbe order other than tbe Adventure, Kanuek, Midnight, Grey Eagle, Bellona and Parrot, including all of tbe three lots, tbe evidence is confined to these facts, to-wit, that they lie south of tbe Nipper claim, that tbe Nipper vein dips in their direction at an angle varying between 85 degrees and 30 degrees, that extensive workings have been done in them, and that they lie generally along tbe line of tbe strike of tbe vein as shown by the direction followed by tbe apex in'the Nipper ground. This evidence is not very convincing, but we are not willing to say that it is entirely insufficient to warrant tbe inclusion of these claims in tbe order, especially so -in view of tbe fact that tbe workings therein are exclusively in the possession of tbe defendant, and it is impossible for tbe plaintiffs to obtain any knowledge of tbe conditions existing therein without an inspection of them. Defendant offered no evidence on tbe subject, and, even if it bad, tbe plaintiffs would not be bound by it; and, where the evidence indicates conditions to justify a well-grounded belief that tbe adverse party is trespassing upon tbe applicant’s rights, tbe order should be made. (State ex rel. Geyman v. Dist. Court, 26 Mont. 483, 68 Pac. 861.)

It should be steadily borne in mind, both by tbe courts and tbe parties, in controversies of this kind, that tbe object to be attained is a just determination of disputed rights, and that the respective parties must, for tbe time being, submit to whatever temporary inconvenience may be cast upon them in order to accomplish this purpose.

4. What has already been said as to tbe extent of tbe order disposes of tbe fourth contention made by tbe relator. Tbe examination and survey should have been confined to the workings upon tbe Nipper vein, and those in such proximity thereto that tbe result would be an aid to tbe plaintiffs, and not an unnecessary infringement upon the rights of tbe defendant.

5. Earnest contention is made that the order is in contravention of Section 1 of the Fourteenth Amendment to the Constitution of the United States, prohibiting the deprivation of property without due process of law, as well as of the provisions of the state Constitution prohibiting the taking or damaging of private property without just compensation first made to the owner thereof. (Constitution, Article III, Section 14.)

In St. Louis Mining & Milling Co. v. Montana Company, 9 Mont. 288, 23 Pac. 510, similar objections made to an order granted under Section 1311 were considered by this court and overruled. ' In the same case, on error to the Supreme Court of the United States, that court discussed the various constitutional objections to the order, and, after an extensive examination of the authorities, overruled them all. In concluding its discussion of the question whether or not the making of such orders, and the temporary invasion thereunder of the property of a citizen, is taking property without due process of law, that court said: “In conclusion, it may be observed that courts of equity have, in the exercise of their inherent powers, been in the habit of ordering inspections of property, as of requiring the production of books and papers; that this power on the part of such courts has never been denied, and if it exists, a fortiori, the state has power to provide a statutory proceeding to accomplish the same result; that the proceeding provided by this statute requires notice to the defendant, a hearing, and an adjudication before the court or judge; that it permits no removal or appropriation of any property, nor any permanent dispossession of its use, but is limited to such temporary and partial occupation as is necessary for a mere inspection; that there is a necessity for such proceeding in order that justice may be exactly administered; that this statute provides all reasonable protection to the party against whom the inspection is ordered; that the failure to require a bond, or to provide an appeal, or to have the question of title settled before a jury, is not the omission of matters essential to due process of law. It follows, therefore, that there is no conflict between this statute and the Fourteenth Amendment of the Constitution of the United States.” (Montana Company v. St. Louis Mining & Milling Co., 152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398.) In another place in the opinion, the court, in speaking of the matter of temporary invasion of the property of a citizen for the purpose of aiding in the administration of justice1, said: “To ‘establish justice’ is one of the objects of all social organizations, as well as one of the declared purposes of the Federal Constitution; and if, to determine the exact measure of the rights of parties, it is necessary that a temporary invasion of the possession of either for purposes of inspection be had, surely the lesser evil of a temporary invasion of 'one’s possession should yield to the higher good of establishing justice; and any measures or proceedings which, having the sanction of law, provide for such temporary invasion with the least injury and inconvenience, should not be obnoxious to. the charge of not being due process of law,”

Nor does such temporary invasion of the property of a party to a controversy fall within the prohibition of the Constitution of Montana forbidding the taking or damaging of private property without compensation first made. Such temporary invasion is not the taking or damaging of property within the purview7 of the constitutional provision. Every citizen has the right to the exclusive enjoyment of his property, without interruption or invasion; yet this general rule of right must, under the circumstances of the case, yield to the higher right of public necessity, that equal justice may be administered upon conflicting rights of different citizens. Every citizen holds his property subject to this burden, and when the necessity arises his private right must give way to this, higher law.

In Thornburgh v. Savage Mining Co., District Judge Baldwin, speaking for the United States Circuit Court for the District of Nevada, in discussing this phase of the law, says: “Ought a court of equity, in a mining case, when it has been convinced of the importance thereof for the purposes of the trial, to compel an inspection and survey of the works of the parties, and admittance thereto by means of the appliances in use at the mine ? All the analogies of equity jurisprudence favor the affirmative of this proposition. The very great powers with which a court of chancery is clothed were given it to enable it to carry out the administration of nicer and more perfect justice than is attainable in a court of law. That a court of equity, having jurisdiction of the subject-matter of the action, has the power to enforce an order of this kind, will not be denied. And the propriety of exercising that power would seem to be clear, indeed, in a case where, without.it, the trial would be a silly farce. Take, as an illustration, the case at bar. It is notorious that the facts by which this controversy must be determined cannot be discovered except by an inspection of works in the possession of the defendant, accessible only by means of a deep shaft and machinery operated by it. It would be a denial of justice, and utterly subversive of the objects for which courts were created, for them to refuse to exert their power for the elucidation of the very truth — the issue between the parties. Can a court justly decide a cause without knowing the facts ?” (7 Morr. Min. E., at page 680.) This language is quoted with approval by the Supreme Court of the United States .in Montana Company v. St. Louis M. & M. Co., supra. In that ease the court proceeded, under the inherent power vested in courts of equity, to do whatever was necessary to a proper adjustment of the rights of the. parties. If courts of equity have inherent power to make such orders, and for the purpose of making them effective require the party whose properly is affected to furnish to his adversary the appliances necessary to gain access to the property, and without which such access is impossible, surely it is within the power'of the legislature to provide by statute for the making of the order, and, either expressly or by implication, to authorize the court to make its order effective.

The order complained of is defective, in that it fails to provide the compensation contemplated by Section 1317 of the statute, but the provisions of the statute itself are not in contravention of either the Constitution of the United States or of the state of Montana.

As the necessities of the case may develop from time to time the order may be extended, but for present purposes the district court is directed to modify its order as made in the following particulars: - To exclude the Ttialto claim altogether; to omit the requirement that .the defendant furnish to the plaintiffs access to the openings in the Adventure by means of the defendant’s appliances, except so far as it is shown to be necessary; to exclude from the order all the openings in any of the claims above the 1,000 foot level, and also those in the Parrot and Bellona claims in the possession of the Anaconda Company; and to add a requirement that the plaintiffs pay to the defendant the reasonable expenses incident to the use of the defendant’s appliances, so far as such use is necessary to obtain free access to workings that cannot be reached through plaintiffs’ own shaft. If, in order to observe these directions, it be found necessary to hear other evidence, the court may hear it at such time as may be convenient.

Modified.