State ex rel. Anaconda Copper Mining Co. v. District Court of the Second Judicial District

68 P. 570, 26 Mont. 396, 1902 Mont. LEXIS 30

• Court: Montana Supreme Court
• Decided: April 14, 1902
• Docket: No. 1,759
• Status: Published

Opinions

MR. CHIEF JUSTICE BRAN TUN,

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

The order complained of was made under and by virtue of the power which, it is asserted, is vested in the district court, or a judge tliei’eof, by Section 1317 of the Code of Civil Procedure. It was contended by the petitioner in the court below and the same contention is made by the defendants in this court, that this section authorizes the court, or its judge, to require the owner of any mine to permit his neighbor, upon a showing that such owner is or has been engaged in mining and. extracting ores which may belong to the latter, or which he claims by virtue of his extralateral rights, to enter into the-workings made by such owner in his own premises, and to make such examination, inspection, and survey as may, in the judgment of the court, or its judge, be necessary to enable the petitioner to ascertain, enforce, or protect his rights. The contention is also made that, even if the statute does not, in terms, authorize an order granting permission to inspect and survey adjoining property owned exclusively by another proprietor, yet the court, by virtue of its inherent power as a court of equity, is authorized to grant such an order with reference to any adjoining or neighboring property or premises through which, trespasses may be committed on the property of the petitioner ; and that, too, without regard to whether the court has jurisdiction over the property or the parties by virtue of the pendency of a suit in which the parties are seeking an adjustment of their rights. On the other hand, the relator contends that this character of proceeding is statutory; that, independently of a suit involving the rights of the parties to the particular property, the court, or its judge, has no power in the premises other than that conferred in terms by the statute; and that by the express terms of the statute the power of the court or its judge is to be tested by the interest or ownership exhibited by the petitioner in the property of which the inspection is sought or through which entry for that purpose is necessary. In other words, it is said that, in order to bring himself within the purview of the statute, the petitioner must show some sort of proprietary interest in the premises which are in the possession of his adversary, and into or through which he desires to enter for inspection.

1. What power is conferred by the statute? The section in question reads as follows: “Whenever any person shall have any right to or interest in any lead, lode, or mining claim which is in the possession of another person, and it shall be necessary for the ascertainment, enfoi’cement or protection of such right or interest that an inspection, examination or survey of such lead, mine, lode or mining claim should be had or made; or whenever any inspection, examination or survey of any such lode or mining claim shall be necessary to protect, ascertain or enforce the right, or interest of any person in another mine, lode or mining claim, and thei person in possession of the same shall refuse, for a period of three days after demand therefor in writing, to allow such inspection, examination or survey to be had or made, the party so desiring the same may present to the district could, or a judge tlierof, of the county wherein the mine, lead, lode or mining claim is situated, a petition, under oath, setting out his interest in the premises, describing the same, that the premises are in the possession of a party, naming him, tlio reason why such examination, inspection or survey is necessary, the demand made on the person in possession so to permit such examination, inspection or survey, and his refusal so to do. The court or judge shall thereupon appoint a time and pdacc for hearing such petition, and shall order notice thereof to be served up>on the adverse paarty, which notice shall be served at least one day before the day of hearing. Oar the hearing either party may read affidavits or produce oral testimony, and if the coaai’t or judge is satisfied that the facts stated in the petition are true, he shall make an order for an inspection, examination or survey of the lode or mining claim in question in such manner, at such time, aird by such persons as ai’o mentioned in the order. Such person shall thereupon have free access to such miare, lead, lode or mining claim for the paaaa*pose of making saach iaaspaectioaa, exaaaaiaaation or sarrvey, and any interference with such person while acting under saach order shall be contempt of corral. If the order of the coua*t is made while an action is pendirrg between the parties to the oa’der, the costs of obtaiaaing the order shall abide the resarlt of the action, brat all costs of making sarcia exaaaaiaaation or sarrvey shall be paid by the petitioner.” (Sectioaa 1317, Code of Civil Procedure.) So far as we are awar’e, the parovisioars eaaabodied iaa this sectioaa are paecaaliar to orar owaa jaaa’isdiction. AVe find that the sectioaa was eraacted by the territorial legislataare of 1881 (Acts 12th Bess. pa. 10) as ara aanendaaaent to the Code of Civil Procedua’e of 1879, and that, it has been iarcorporated iaa all the revisioars of this Code since that time. The eoarstitutionality of it was called ira qaaestioaa iaa St. Louis Min. & Mill. Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, and in the saure case on error to the sarpareme court of the United States, 152 U. S. 160 (14 Sup. Ct. 506, 38 L. Ed. 398), brat the extent of the power of the coaaa’t under it has arever been considered or determined. It is asserted by counsel for the defendants that the relative situation of the parlies and the ownership of the property involved iaa that case were the same as in the present case, and that the im-palied constraaction then giveaa the section by this coaart is the same, as that which they now contend for, and is of binding authority. The only questions presented in the briefs of counsel in that case, and the only ones considered and determined, are found stated in the opinion of this court at page 300 (9 Mont. page 512, 23 Pac.). They are restated in 152 U. S. at page 165 (14 Sup. Ct. 507, 38 L. Ed. 398), and were the only questions considered by the supreme court of the United States. These have to do with certain features of the legislation, which, it was alleged, rendered it obnoxious to the provisions of the state and federal constitutions prohibiting the deprivation of property without due process of law. It was held to be constitutional, as not violative of these constitutional prohibitions; hut the relative situation and ownership of the property to which its terms apply were not considered, counsel having conceded (9 Mont. 299, 23 Pac. 512) that the order was properly made if the section was not open to the constitutional objection urged ag’ainst it. Where a suit is pending involving the rights of the parties to the particular property, the court proceeds under Sections 1314 and 1315 of the Code of Civil Procedure, and under them the inspection may be made rmt--withstanding it involves a temporary occupancy of other property than that in controversy. These sections are but declaratory of the inherent power of courts of equity (perhaps, also> of courts of law), and rest upon the principle that the parties should be enabled to put the court in possession of all the facts touching the controversy, to the end that their rights may be properly adjudicated. (State ex rel. Anaconda Copper Mining Co. v. District Court of Second Judicial Dist. of Silver Bow Co., 25 Mont. 504; 65 Pac. 1020; Montana Co. v. St. Louis Min. & Mill. Co., 152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398.) The power of the court under these sections is limited only by the necessities of the pending action.

As to Section 1317, we are aware of no case in which the extent of its application has been considered, and the question of its proper construction is now presented for the first time. We must, therefore, refer to the statute itself, and determine from tho terms employed in it wliat circumstances are necessary to put the power of the court in motion.

Passing, for the present, the character of the interest necessary to be exhibited by the petitioner, and assuming that an exhibition of -any interest, though a disputed one, is sufficient, it seems clear iliat the inspection must be limited to premises in which the petitioner has some sort of proprietary interest. The purpose of the inspection is twofold, namely: (1) To ascertain whether the right or interest of the petitioner in the property in possession of the adverse party is being injured; and (2) to ascertain by inspection of such premises whether the right or interest of the petitioner in other premises is being' injured. The first clause of the statute applies to “any lead, lode or mining claim” in the possession of another, in which the petitioner has an interest. It has reference to a property right in the very premises sought to be inspected, and proceeds upon the just theory that an obligation rests upon the party in possession to permit tho inspection upon a proper demand for permission to make it. The purpose served is to ascertain the rights of the party not in possession, and to furnish him with the facts necessary to enable him to protect his interests, if they need protection.

The second designation of property with reference to which the order may be matte is expressed in the words: “Or whenever any inspection * * * of any such lode or mining claim shall be necessary to protect, ascertain or enforce the right or interest of any person in another mine, lode or mining-claim, and tho person in possession of the same shall refuse,” etc. The words “any such lode or mining claim” clearly relate to the same character of lode or mining claim as that mentioned in the first clause; that is, one in which the petitioner has an interest, and which is in the possession of another. The word “'such” in its ordinary sense, in the connection in which it is here used, signifies “tho same as previously mentioned or specified ; not other or different.” (Century Dictionary.) In this sense it is used with reference to some antecedent word or phrase, and signifies that the word or phrase of which it is made an attributive — as, in this instance, “lode or mining claim” — is to be understood as indicating something of the same, class or in the same situation as the one- already described, and to which it refers. In this sense it must be used here, else it must be considered as without any signification, and the phrase “any such lode or mining claim' should otherwise be read “any lode, or mining claim/' This disposition of the word would give, the phrase the meaning contended for by the de¡-fendants, but would do violence to the elementaray rule of construction that, every word of a statute must be given a meaning, if it is possible to do so. Another rule equally applicable in this connection is that the terms employed in a statute are presumed to he used in their ordinary sense, unless it is apparent from the context or from the subject-matter1 that they are used in a, different or special sense. That the word “such" is not used in any special sense here is manifest from the context, in which it is several times used with reference to other previously described objects, but always in the same sense. The conclusion that the meaning we have given it is the proper one is further strengthened by a consideration of the matters which must be set forth in the petition. The petitioner must, state his interest in the premises which he desires to inspect. lie must describe the same. Ho must state that the premises are in the possession of a party, naming him. He must state the reason why the inspection is necessary, and that demand has been made upon tiie party in possession. He must set forth an interest in the premises to be inspected; whether the purpose is to ascertain, protect or enforce his interest in the particular property, or an interest, owned by him in an adjoining property. The use of the word “premises" indicates that the interest owned or claimed must be such an interest as is the subject of a conveyance,— such as an interest by tenancy in common, leasehold, reversion, or other interest of like character. The asserted right to enter within the vertical planes of the boundaries of the property from an adjoining claim — ^as in this case from the Fairmount claim into tlie Anaconda and St. Lawrence — is not sucb an interest as wonkl meet the requirement, for such an interest would not pass by virtue of a conveyance of either of the latter claims. These extralateral rights, if they exist at all, constitute an interest in the Fainnount claim. They can only be described as such, having been obtained by a grant of that claim by the patent, and are conveyable only by virtue of the estate owned in that claim.

It is to be observed, further, that the petition need not charge the adverse party with a wrongful possession. The only wrong to! be charged is the refusal to permit the inspection. This feature also very strongly implies that the whole basis of the proceeding is some interest or ownership in the property itself which is a subject of conveyance, and supports the contention of the relator 'hat the legislature manifestly did not intend that, one person should be allowed by a summary proceeding to invade the property of another, and make inspection of it, merely because such an inspection might benefit the applicant. In any event, if it was intended by the act to accord to an owner cf a mining claim or lode the right, upon demand, to enter upon and inspect property in the possession of his neighbor, and belonging exclusively to him, with a view to determine whether the latter is committing a trespass, the legislature failed to use terms suitable to express such intention. “Every citizen holds his property subject to the power of the state to prescribo reasonable regulations for the protection of the property and rights of others.” (State ex rel. Anaconda Copper Mining Co. v. District Court of Second Judicial Dist., 25 Mont. 504, 65 Pac. 1020.) Put, beyond sustaining the reasonable burdens thus imposed upon him, he is not required to submit to any invasion of his property or possessions; and no court or judge has the power to. interfere with him in the enjoyment of his property, except so far as such interference may he warranted by the inherent power of the court or by express legislative sanction, and then only in the interest of justice.

It does not appear that, the petitioner has any interest in the Anaconda and St. Lawrence claims. The basis of his asserted right to enter the relator’s shafts, drifts, and other workings in these claims is the supposed existence of extralateral rights upon a vein the apex of which is within the boundaries of the Fairmount claim. Tinder the construction Ave have given the statute, — and, in our opinion, it is the only construction of Avhich it is fairly susceptible, — the exhibition of this right- is not- sufficient to give the court, or its judge;, jurisdiction to make the order.

Counsel for defendant suggest that, unless this be declared a sufficient, showing of interest to Avarrant the order, one owner may trespass Avith impunity upon another, while the latter is left Avithout the means of discovering the fact and extent of the Avrong done him. So far as concerns the right of inspection, Avhen no suit is pending in cases in Avhich the property is in the situation presented in this case, the suggestion seeing to he pertinent; but the necessity for a remedy, if there be such a necessity, is a matter Avhich should be submitted to the consideration of the legislature. It is an exclusive function of that department of the government to furnish the extraordinary summary remedy aaTiícIi the circumstances of this and like cases demand. The petitioner is not remediless, however. If he has information, as he alleges, that trespasses are being committed upon his property, the Avay is open to him to- invoke the pre-ATentive poAver of the court in an ordinary action, Avliereupon its authority to assist him to ascertain the facts necessary to full relief Avill be limited only by the necessities of the case.

2. We do not understand upon Avha.t theory the defendar.es assert that a court of equity has inherent poAver, independently of a pending .action, in Avhich it has jurisdiction of the parties and the properry in controversy, to make the order under consideration. There is nothing in the petition Avhich invokes any of the ordinary po-Avers of a court of equity; nor has our attention been called to any case Avherein any court, in the absence of statutory authority, Avhen no suit Avas pending between the parties, has assumed, in a summary Avay, to adjudicate per.sonal or property rights. There are many eases reported in which inspection orders have been made, but in none of them do we find the courts assuming the power to make them except in aid of the rights of the parties, which were being adjudicated in the ordinary way. Even in such cases the power is used with caution, and only when it is apparent that its exercise is necessary to serve the ends of justice. Among such cases are the following, being all the American and English cases which wo have been able to examine: Earl of Lonsdale v. Curwen, 3 Bligh, 168; Walker v. Fletcher, Id. 172; United Co. v. Kynaston, Id. 153 ; Blakesley v. Whieldon, 1 Hare, 176; Lewis v. Marsh. 8 Hare, 97; Bennitt v. Whitehouse, 28 Beav. 119; Bennett v. Griffiths, 30 Law J. Q. B. 98; Whaley v. Brancker, 10 Law T. (N. S.) 155; Thomas Iron Co. v. Allentown Min. Co., 28 N. J. Eq. 77; Thornburg v. Savage Min. Co., 1 Pac. Law Mag. 267; Slockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Duggan v. Davey, 4 Dak. 110, 26 N. W. 887. Most of these cases are also reported in volumes 7 (pages 667-096) and S (pages 1-41) of Morrison’s Mining Reports. There are doubtless other cases in point, but the foregoing are sufficient to sustain the general proposition stated that courts do not assume to adjudicate, the rights of parties in a summary proceeding without express statutory authority; and in no case do they authorize entry upon the property of parties over whom they have acquired jurisdiction, except when the necessity of the case demands it in the interest of justice. The case of Thomas Iron Co. v. Allentown Min. Co., supra, woirld seem, upon a casual reading, to support the contention of defendants, but a careful examination of it shows it to have- been a proceeding in equity for injunction to restrain the defendants from preventing the complainant from entering a shaft sunk upon its own property and the. workings connected therewith to discover the extent of a trespass committed by defendants, and also for an accounting of ores extracted. Another purpose of the action was to prevent, the defendants from destroying the supports left in the mine, thus allowing the surface to cave in and fill the excavations, and also1 by this means to flood thorn with surface water, thus destroying the evidence of the1 trespass. The inspection was allowed under the injunction. Thus it appears that the power of the court was exercised by virtue of its ordinary equity jurisdiction by injunction, upon allegation of facts properly invoking it. It also appears that the question was whether the court should permit the complainant to enter through its own property.

3. Speaking generally, and in order to* dispose of suggestions .made during the argument of counsel, the last provision of the statute oeems to require the costs of the survey and inspection, as well as of obtaining the order, to be paid by the petitioner. The only burden cast upon the adverse party would seem to be to grant free access to the property. The authority to make the order in a particular case would necessarily carry with it also authority to make the order effective, so that all the appliances in use to facilitate ingress and egress should be made available to the persons making the inspection, the additional expense being paid by the petitioner. The order should provide for contingencies of this character. At the same time the court should not, as in this instance, grant an inspection of, or permission to enter upon, property not mentioned in the petition. The Mountain View claim is mentioned in the order. It does not appear, however, who is the owner of it. It is not described in the petition. The court would, under no circumstances, have authority to invade the rights of persons not parties to the suit or proceeding. The order should not have included this claim.

The order is also subject to criticism in that it does, not limit in any way tlia discretion of petitioner’s agents as to the extent of the inspection. They are given unlimited discretion to inspect any -workings in the Anaconda and St. Lawrence claims, or any connected with them in any direction. The order should be limited to the necessities of the case, and explicitly direct the extent to which the inspection and survey should go.

Much ivas said in argument by counsel as to whether the right or interest claimed by the petitioner in a proceeding’ under this statute must be an undisputed one. We would not undertake to go further a-t this time than to say that under the first clause of the statute the petitioner must exhibit at least a substantial prima facie interest, which it is necessary for him to protect or enforce. Under the second clause the necessity to show an interest both in the premises to be inspected and in the property to be protected would be pleasured by the same rule.

(Submitted May 26, 1902. Decided June 2, 1902.)

The order of the district court was-wholly in excess of jurisdiction, and is therefore annulled.

Annulled.