PER CURIAM.
Proceeding by respondents (plaintiffs) to acquire a right of way over certain lands belonging to appellant (defendant) for a ditch to carry water to plaintiffs’ mining plant in J efferson county.
It is conceded that the Compiled Statutes of 1887 control. The petition alleges that petitioners own certain mining property and a certain water right; that their mining claim was so situated that it could not be conveniently worked without a flume or ditch to convey water for power purposes for a mill and concentrator of plaintiffs; that defendant is the owner of certain premises; and- that to convey water to petitioners’ property it is necessary that the plaintiffs should pass over and across defendant’s premises. Plaintiffs then make the following allegation:
‘ ‘That such right of way has not been acquired by agreement between your petitioners and the Basin Mining & Concentrating Company; that these petitioners understanding that the Basin Mining & Concentrating.Company feared, that if these petitioners were permitted to build said flume over their ground, the said defendant might be deprived of water for their concentrator, by reason of the appropriation of the water of Boulder Creek by these petitioners as above set out, made the following offer in writing to said Company on the 14th day of June, 1894, to wit: ‘In consideration that you will grant us the right of way for our ditch across the Hope, Darwin, Apache Chief and such other grounds of yours as it [155]*155may be necessary for us to pass over with our ditch, we-agree that, in case our flume should at any time so drain the-river as to deprive your Company of an amount of water equal to that now carried by your ditch or flume now connecting said river with your sump or well, we agree to construct at our expense a covered ditch from our point of discharge to your present sump or well, equal in capacity to the flume now connecting the Boulder Kiver with said sump under your pump,’ — which said offer the said defendant rejected before-the filing of this petition. ”
Defendant demurred to this complaint, because it did not-allege that there was any attempt on the part of the plaintiffs-to agree with defendant as to said right of way and compensation, and hence did not state facts sufficient to constitute a cause of action. The demurrer was overruled. Defendant. Company then filed an answer, denying, among other things that there was ever any attempt made by plaintiffs, or any of them, to acquire any right of way over or across defendant’s-property by agreement between said plaintiffs and this defendant.
The replication did not deny this averment of a lack of agreement, but did deny the averments of the answer to the-effect that, if a flume was constructed over the right of way" plaintiffs sought, defendant’s property would be endangered.
Proof was taken, and the court decided that the petitioners were entitled to the right of way prayed for. The defendant. corporation appeals from the judgment.
The principle that the strict limits of all delegated authority by which one may take the property of another must be cautiously and accurately guarded, lest private rights be unnecessarily invaded, has been announced by this Court in Butte, A. & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 248. It finds its application in this case, where a corporation’s property is sought to be devested by proceedings against its will. It makes no difference what the instance is, though, if one invoke the right to take private-property from its owner against his will, it can only be done-. [156]*156pursuant to law, and to make the proceeding effectual there •must always be a rigorous compliance with the provisions of the statute, which points' out when, in what manner, and ••under what conditions the appropriation sought can be made.
(Cooley, Const. Lim. p. 649.)
It was provided by Section 1496, Fifth Div. Comp. St. of 1887, that if a mine could not be conveniently worked with■out a ditch to convey water thereto, and such ditch should necessarily pass over any mining claim owned by another, the ■first mine owner should have a right of way for his ditch over ¡such other claim upon compliance with the provisions of the Compiled Statutes pertaining to the right of way to mines. .Accordingly, plaintiffs were obliged to proceed under Section 1497, Fifth Div. Cómp. St. of 1887, which, as far as material, 'is as follows:
“Whenever the owner or owners of any mine or mining claim shall desire to work the same, and it is necessary to enable him or them to do so successfully and conveniently, that he or they shall have a right of way for any of the purposes mentioned in the foregoing sections; and, if such right of way shall not have been acquired by agreement between him or them, and the claimants or owners of the land or claims, over, under, across and upon which he or they seek to establish such right of way,' it shall be lawful for him or them to present to the judge of the district court of the Territory of Montana, within and for the county in which such right of way, or some part thereof, sought to be enforced 'is situated, •or to which such county is attached for judicial purposes, a petition, praying that such right of way be awarded to him or '.them,” etc.
This statute presupposes and. requires an attempt to agree between the owners of the mining claims before the rights to .present a petition to the judge of the district court can arise. (Matter of Lockport & Buffalo R. R. Co. 77 N. Y. 557.) The language of the statute imposes a necessity for trying to agree as a condition precedent, to be strictly observed, before The property of a mine owner can be taken. The object is, [157]*157obviously, to give both parties every, fair opportunity of com- ■ ing'to terms as to the route to be selected, and the mode of using the proposed right of way, and the compensation to be-allowed, before instituting suit, which usually involves delay and costs. (Lake Shore & M. S. Ry. Co. v. Cincinnati, W. & M. Ry. Co., 116 Ind. 578, 19 N. E. 440.) Legislation of. this character also rests upon the doctrine of a reluctance on-the part of courts to award a remedy by eminent domain, harsh in its nature, where the same end can be effected by-contract between the parties. (Mills on Eminent Domain Sec.. 105.) Therefore it is that an effort to purchase the property-required is made a condition precedent to condemnation. So, by the statute, these plaintiffs, claiming authority under the-proceeding, must not only show affirmatively strict compliance-with the law, but, inasmuch as no proceeding at all is authorized until after an effort to agree has been made, the petition-must show the fact of such effort, and its failure. (Cooley’s Const. Lim. p. 619; Lewis on Eminent Domain, Sec. 357; Mills on Eminent Domain, Sec. 107; Randolph on Eminent-Domain, Sec. 326.) The attempt and failure to agree are-facts necessary to be averred in order to confer jurisdiction. (Matter of Boston H. T. & W. R. Co., 79 N. Y. 69; Clay v. Pennoyer_ C. Improvement Co., 31 Mich. 204; Toledo, A. A. & N. M. R. Co. v. Detroit, L. & N. R. Co., 62 Mich. 564, 29 N. W. 500; Reed v. O. & M. Ry. Co., 126 Ill. 48, 17 N. E. 807; Lieberman v. C. R. T. R. R. Co., 141 Ill. 140; 30-N. E. 511.)
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PER CURIAM.
Proceeding by respondents (plaintiffs) to acquire a right of way over certain lands belonging to appellant (defendant) for a ditch to carry water to plaintiffs’ mining plant in J efferson county.
It is conceded that the Compiled Statutes of 1887 control. The petition alleges that petitioners own certain mining property and a certain water right; that their mining claim was so situated that it could not be conveniently worked without a flume or ditch to convey water for power purposes for a mill and concentrator of plaintiffs; that defendant is the owner of certain premises; and- that to convey water to petitioners’ property it is necessary that the plaintiffs should pass over and across defendant’s premises. Plaintiffs then make the following allegation:
‘ ‘That such right of way has not been acquired by agreement between your petitioners and the Basin Mining & Concentrating Company; that these petitioners understanding that the Basin Mining & Concentrating.Company feared, that if these petitioners were permitted to build said flume over their ground, the said defendant might be deprived of water for their concentrator, by reason of the appropriation of the water of Boulder Creek by these petitioners as above set out, made the following offer in writing to said Company on the 14th day of June, 1894, to wit: ‘In consideration that you will grant us the right of way for our ditch across the Hope, Darwin, Apache Chief and such other grounds of yours as it [155]*155may be necessary for us to pass over with our ditch, we-agree that, in case our flume should at any time so drain the-river as to deprive your Company of an amount of water equal to that now carried by your ditch or flume now connecting said river with your sump or well, we agree to construct at our expense a covered ditch from our point of discharge to your present sump or well, equal in capacity to the flume now connecting the Boulder Kiver with said sump under your pump,’ — which said offer the said defendant rejected before-the filing of this petition. ”
Defendant demurred to this complaint, because it did not-allege that there was any attempt on the part of the plaintiffs-to agree with defendant as to said right of way and compensation, and hence did not state facts sufficient to constitute a cause of action. The demurrer was overruled. Defendant. Company then filed an answer, denying, among other things that there was ever any attempt made by plaintiffs, or any of them, to acquire any right of way over or across defendant’s-property by agreement between said plaintiffs and this defendant.
The replication did not deny this averment of a lack of agreement, but did deny the averments of the answer to the-effect that, if a flume was constructed over the right of way" plaintiffs sought, defendant’s property would be endangered.
Proof was taken, and the court decided that the petitioners were entitled to the right of way prayed for. The defendant. corporation appeals from the judgment.
The principle that the strict limits of all delegated authority by which one may take the property of another must be cautiously and accurately guarded, lest private rights be unnecessarily invaded, has been announced by this Court in Butte, A. & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 248. It finds its application in this case, where a corporation’s property is sought to be devested by proceedings against its will. It makes no difference what the instance is, though, if one invoke the right to take private-property from its owner against his will, it can only be done-. [156]*156pursuant to law, and to make the proceeding effectual there •must always be a rigorous compliance with the provisions of the statute, which points' out when, in what manner, and ••under what conditions the appropriation sought can be made.
(Cooley, Const. Lim. p. 649.)
It was provided by Section 1496, Fifth Div. Comp. St. of 1887, that if a mine could not be conveniently worked with■out a ditch to convey water thereto, and such ditch should necessarily pass over any mining claim owned by another, the ■first mine owner should have a right of way for his ditch over ¡such other claim upon compliance with the provisions of the Compiled Statutes pertaining to the right of way to mines. .Accordingly, plaintiffs were obliged to proceed under Section 1497, Fifth Div. Cómp. St. of 1887, which, as far as material, 'is as follows:
“Whenever the owner or owners of any mine or mining claim shall desire to work the same, and it is necessary to enable him or them to do so successfully and conveniently, that he or they shall have a right of way for any of the purposes mentioned in the foregoing sections; and, if such right of way shall not have been acquired by agreement between him or them, and the claimants or owners of the land or claims, over, under, across and upon which he or they seek to establish such right of way,' it shall be lawful for him or them to present to the judge of the district court of the Territory of Montana, within and for the county in which such right of way, or some part thereof, sought to be enforced 'is situated, •or to which such county is attached for judicial purposes, a petition, praying that such right of way be awarded to him or '.them,” etc.
This statute presupposes and. requires an attempt to agree between the owners of the mining claims before the rights to .present a petition to the judge of the district court can arise. (Matter of Lockport & Buffalo R. R. Co. 77 N. Y. 557.) The language of the statute imposes a necessity for trying to agree as a condition precedent, to be strictly observed, before The property of a mine owner can be taken. The object is, [157]*157obviously, to give both parties every, fair opportunity of com- ■ ing'to terms as to the route to be selected, and the mode of using the proposed right of way, and the compensation to be-allowed, before instituting suit, which usually involves delay and costs. (Lake Shore & M. S. Ry. Co. v. Cincinnati, W. & M. Ry. Co., 116 Ind. 578, 19 N. E. 440.) Legislation of. this character also rests upon the doctrine of a reluctance on-the part of courts to award a remedy by eminent domain, harsh in its nature, where the same end can be effected by-contract between the parties. (Mills on Eminent Domain Sec.. 105.) Therefore it is that an effort to purchase the property-required is made a condition precedent to condemnation. So, by the statute, these plaintiffs, claiming authority under the-proceeding, must not only show affirmatively strict compliance-with the law, but, inasmuch as no proceeding at all is authorized until after an effort to agree has been made, the petition-must show the fact of such effort, and its failure. (Cooley’s Const. Lim. p. 619; Lewis on Eminent Domain, Sec. 357; Mills on Eminent Domain, Sec. 107; Randolph on Eminent-Domain, Sec. 326.) The attempt and failure to agree are-facts necessary to be averred in order to confer jurisdiction. (Matter of Boston H. T. & W. R. Co., 79 N. Y. 69; Clay v. Pennoyer_ C. Improvement Co., 31 Mich. 204; Toledo, A. A. & N. M. R. Co. v. Detroit, L. & N. R. Co., 62 Mich. 564, 29 N. W. 500; Reed v. O. & M. Ry. Co., 126 Ill. 48, 17 N. E. 807; Lieberman v. C. R. T. R. R. Co., 141 Ill. 140; 30-N. E. 511.)
It is not essential to state the facts concerning the negotiation, or to do more than to allege that the petitioners have-endeavored in good faith to come to an agreement with the defendants or owners owning or claiming to own or having estates or interests in the lands or premises over which right of way is sought, but that such efforts have failed by reason of the fact — if such be the truth- — that the owner asks what petitioner considers an unreasonable price, and refuses to accept the reasonable sum the petitioner has offered therefor. (Reed v. O. & M. Ry. Co., 126 Ill. 18, 17 N. E. 807; G. R. [158]*158L. & D. R. R. Co. v. Weiden, 69 Mich. 572, 37 N. W. 872; Mills on Eminent Domain, Sec. 107.) No more expended allegations were made in State v. District Court Third Judicial District, 14 Mont. 476, 37 Pac. 7, where a petition to open a road across a mining claim under Section 1497, swpra, was entertained; and by general rules of pleading we cannot see any substantial reason for requiring particulars of the negotiations to be included in the petition.
But here we have a fatally defective complaint. The allegations of the plaintiffs is that there never was any agreement, and, fearing lest defendant might be deprived of certain water, they made an “offer” by which, if defendant would grant plaintiffs a right of way across its mining claims, plaintiffs, in consideration thereof, would give defendant any water it might need for certain of its purposes. This is not an averment of a past attempt to agree upon compensation for a right of way. It is merely a recital of what plaintiffs were willing to do to allay the apprehensions which they understood defendant had in case it should allow plaintiffs to build a flume across its property. It falls far short of the requirements of the law; and for lack of jurisdiction the district court’s judgment must be set aside.
Plaintiffs, in their replication, humorously allege that, if they are allowed to build the flume, they will make it secure, “and, like the deacon’s shay, they will make it strongest in the weakest point. ” It is not the plaintiffs’ flume, though, that this Court thinks should be made strongest in its weakest point, but the proceeding by which they can alone obtain the right to build the flume. However, as far as they have gone, their ease is truly like the deacon’s shay, — it has collapsed entirely, and, like the deacon, they are on the rock, for they are out of court.
“End of the wonderful one hoss shay,
Logic is logic, that’s all I say.”
Judgment JReversed.