Bacon v. Federal Mining & Smelting Co.

STEWART, J. — This action is brought for the purpose of securing an order of the district court of Shoshone county permitting the plaintiff, appellant here, to inspect, examine, and survey the Skookum Lode Mining Claim. A general demurrer was filed to the complaint, and sustained by the trial court, and the plaintiff declining to amend, judgment was rendered in favor of the defendant. From this judgment this appeal is taken. It is alleged in the complaint that Kennedy J. Hanley is the owner of a one-eighth interest in the Skookum Lode Mining Claim, and that the Federal Mining and Smelting Com [139] pany is the owner of the remaining seven-eighths interest; that on the 8th day of June, 1909, the plaintiff obtained a judgment against the said Hanley for the sum of $51,856.51. and thereafter caused execution to issue upon said judgment, and that levy was thereafter made upon the said interest of said Hanley in said claim, and notices of sale given; that in order to protect the rights of the plaintiff in and to said property it will be necessary for the plaintiff to become a bidder at said sale; that the Federal Mining Company has lately and during the year 1909 uncovered a large and valuable body of ore in said Skookum Mining Claim, the location and situation of which is unknown to the plaintiff, and that it is necessary for the plaintiff to make an examination and inspection of said ore body, in order to determine the amount which he can properly bid at said execution sale. It is further alleged that the plaintiff will probably be the only bidder at said sale, and that it will be necessary for him to buy the said interest of Hanley, and apply the same on said judgment, and that he has an interest in and to said mining claim; that he has made a demand in writing upon defendant Federal Mining Company, setting forth his said interest in said mining claim, and the necessity for an inspection and survey of same, and demanding permission to make such inspection and survey, and that the defendant has refused to permit said examination and inspection. These are the material allegations of the complaint. It is contended on the part of the respondent that the complaint is insufficient, for the reason that it fails to show a sufficient interest in the plaintiff to authorize or empower the court to make an order requiring the defendant to permit inspection and survey. The appellant, however, contends that the allegation that the plaintiff is a judgment creditor of Hanley, and that it will be necessary for him to bid at execution sale in order to protect his judgment, is a sufficient allegation of interest to authorize and empower the court to make an order permitting inspection and survey. [140] The contention of appellant is based upon the general equity powers of the court, and also upon the provisions of sec. 4542 of the Rev. Codes. This section reads as follows: “Any person having a bona fide claim to the possession, title of, or interest in, any real property or mining claim, including any ledges thereof, which is, or which he has a good reason to believe is, in the possession of another, either by surface or underground holdings or workings, and it is necessary for the ascertainment, enforcement or protection of such rights or interests, that an examination or survey of such property be had, and the person so in the possession thereof, fails or refuses for three days after demand on him made in writing, to permit such examination or survey to be made, the party desiring the same may apply to the court or the judge thereof, whether he have an action concerning such property pending in such court or not, for an order for such examination and survey.” This section of the statute is merely a legislative declaration of what has been recognized as the general equity powers of the court, and is intended to enable a person who claims possession, title to, or interest in any real property or mining claim, to make examination and inspection of the property, for the purpose of protecting and preserving such possession, title, or interest in such property. (St. Louis Mining & Milling Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, 152 U. S. 160, 14 Sup. Ct. 506, 38 L. ed. 398; 2 Lindley on Mines, sec. 873; Costigan on Mining Law, sec. 148; Barringer & Adams on the Law of Mines and Mining, p. 739.) Our attention has not been called to any case, and we have been unable to find any in which a court has held that either in the exercise of the court’s equitable jurisdiction, or by virtue of the powers conferred under similar statutes, relief should be granted to an applicant in the absence of a showing that the applicant had a bona fide claim to the possession, or title to, or interest in, the property sought to be protected. On the contrary, the authorities all hold that the claim to possession, or title to, or interest in real property or a mining claim, must be an actual right, a real in [141] terest. (State ex rel. Geyman v. District Court, 26 Mont. 433, 68 Pac. 797; St. Louis Mining & Milling Co. v. Montana Co., 152 U. S. 160, 14 Sup. Ct. 506, 38 L. ed. 398; People v. De France, 29 Colo. 309, 68 Pac. 267.) The allegation that the plaintiff is a judgment creditor, and has caused execution to issue upon said judgment, and to be levied upon said property, does not show that the plaintiff is entitled to the possession of said property, or has any title to or interest in the same. By the statute of this state the judgment obtained by the plaintiff became a lien on all real property of the judgment debtor, and the issuance of an execution upon said judgment, and the levying of such execution upon any specific property, or any particular interest in property, simply gave to the plaintiff a right to have such property, or such particular interest in property, sold to satisfy such judgment. Property sold under execution is required to be sold to the highest bidder, and if the plaintiff is' given permission, by an order of court, to enter upon said premises and inspect the same, there would thereby be granted to plaintiff an advantage which would not be given to any other bidder at such sale. In other words, the plaintiff by the information thus obtained might be able to prevent any competitive bidding, and make it possible for the plaintiff to secure the property at much less than it would otherwise be sold for, had all bidders been placed upon an equality. Referring again to the statute, we find that it is also provided therein, that the order for inspection and examination may be made when it is necessary for the ascertainment and enforcement or protection of the right or interest of the applicant. In other words, the complaint must not only allege a state of facts which shows that the plaintiff has a tona fide claim to the possession, title to, or interest in the property, but the plaintiff must also allege a state of facts showing a necessity for the inspection and examination of the property. [142] In the complaint under consideration there are no facts alleged which show any necessity for the inspection and examination in order to enforce or protect any rights of the plaintiff. There is no allegation of injury or threatened injury to the property or depreciation of its value. The mere fact that the plaintiff will probably be the only bidder at the execution sale, and in order to exercise proper judgment as to the amount he would bid, it is necessary that he inspect and examine said property, is not an allegation, of a state of facts showing a necessity for such examination in order to protect any right or interest he may have in or to said property. So far as it appears from the complaint, the judgment debtor may have sufficient other property upon which the judgment is a lien, and which may be levied upon to satisfythe same, even though the property previously levied upon does not invite any bidders whatever, and the plaintiff may be able to enforce his claim against the judgment debtor by the sale of such other property, and be fully protected in his claim. We think the complaint fails to state a cause of action,, and that the trial court did not err in sustaining the demurrer. There is another matter that it seems proper to refer to,, inasmuch as there is printed in the record an affidavit made by counsel for plaintiff alleging certain facts, purporting-to show a necessity for granting the prayer of the complaint,. and such affidavit is referred to by counsel for appellant im his brief. This affidavit, however, has no place in the record,. and could not have been considered by the trial court in-determining the sufficiency of the complaint. The sufficiency of the complaint is to be determined upon the demurrer, and' the affidavit in support of the complaint was no part of the' same, and could not have been considered in determining; its sufficiency. The judgment is affirmed. Costs are awarded to respondent. Ailshie, J., concurs.