§ 34-50-105 — Action to recover - inspection

(1) When an action is commenced
to recover the cost and expenses for draining a lode or mine, it is lawful for the
plaintiff to apply to the court for an order to inspect and examine the lodes or mines
claimed to have been drained by the plaintiff; or someone for him shall make
affidavit that such inspection or examination is necessary for a proper preparation
of the case for trial. The court shall grant an order for the underground inspection
and examination of the lode or mines described in the petition. Such order shall
designate the number of persons, not exceeding three, besides the plaintiff or his
representative, to examine and inspect such lode and mines and take the
measurement thereof, relating the amount of water drained from the lode or mine,
or the number of fathoms of ground mined and worked out of the lode or mine
claimed to have been drained, and the cost of such examination and inspection to
be borne by the party applying therefor.

(2) The court has power to cause the removal of any rock, debris, or other
obstacles in any lode or vein, when such removal is shown to be necessary to a just
determination of the question involved. No such order for inspection and
examination shall be made except in open court or at chambers, upon notice of
application for such order of at least three days, and not then except by agreement
of the parties, and not unless it appears that the plaintiff has been refused the
privilege of making the inspection and examination by the defendant, his or their
agent.

Legislative History

Source: G.L. � 1834. G.S. � 2420. R.S. 08: � 4230. C.L. � 3318. CSA: C. 110, � 211. CRS 53: � 92-27-5. C.R.S. 1963: � 92-27-5.