St. Louis Mining & Milling Co. v. Montana Co.

Blake, C. J. The St. Louis Mining and Milling Company of Montana filed its petition in the District Court of Lewis and Clarke County, and alleged that the petitioner is a corporation under the laws of Montana; that the Montana Company, Limited, is a corporation under the laws of Great Britain; that the petitioner is the owner of the St. Louis Quartz Lode Mining Claim, situated in said county; that the Montana Company,Limited, is the owner of the Marble Heart, the Maskelyne, and the Nine Hour Quartz Lode Mining claims; “that being desirous of, and it being necessary for your said petitioner .... to have an inspection, examination, and survey made of the premises last aforesaid, in order to enable it to institute its action to recover the possession of the said property, so owned by it, and for the recovery of such damages as it may have sustained by reason of the taking, extraction, and conversion of the quartz rock, ore, and mineral, taken by the said Montana Company, Limited, from the mining claim and premises, so owned by your petitioner, and for the purposes of enabling it to have such inspection, examination, and survey made of its said premises, and of all veins or deposits of mineral-bearing quartz rock or earth in place, the apices of which are within the surface boundaries of the St. Louis Mining Claim, . ...” a notice was served upon the Montana Company, Limited, which is made a part of the petition; that the Montana Company, Limited, is in the — 297 — possession of “certain tunnels, shafts, stopes, winzes, drifts, and excavations within the planes of the exterior boundaries of the said Marble Heart, Maskelyne, and Nine Hour Lode Mining claims, extending vertically downward, and beneath the surface of the said claims, and upon veins or deposits of ore, the apices of which are within the exterior boundaries of the St. Louis Quartz Lode Mining Claim” and has been extracting large quantities of ore belonging to the petitioner; that the said tunnels, shafts, stopes, wdnzes, drifts, and excavations of the Montana Company, Limited, connect with the said St. Louis Mining Claim, and are the only means for entering into the same; “that the inspection, examination, and survey thereof was and is absolutely requisite and necessary in order to determine the rights of the respective parties, and to ascertain the extent of the trespass, damage, and injury occasioned by the said wrongful and unlawful acts of the said Montana Company, Limited, in so entering the premises of your petitioner, and extracting the quartz, rock, ore, and mineral from same, and in constructing their said tunnels, shafts, stopes, winzes, drifts, and excavations thereon; that for said purpose it was and is necessary that your petitioner, and such persons as may be designated by this court, shall have access to and in the shafts, works, and machinery, convenient or necessary to make the inspection, examination, and survey aforesaid,” of which the Montana Company, Limited, is in the possession. The prayer of the petitioner is as follows: “ Wherefore, your petitioner prays that your honor appoint a time and place for hearing this petition, and that an order for service of notice thereof upon the said Montana Company, Limited, be made; that such proceedings be had and done under section 376, aforesaid, as will secure to your petitioner the rights to vdiich it is entitled in pursuance thereof, and that upon such hearing an order be made for the inspection, examination, and survey, so refused to your petitioner, and that the persons appointed by your honor shall have free access to the premises aforesaid.” The notice which is mentioned contained recitals of facts similar to those of the petition, and was a demand for an inspection, examination, and survey of the under-gound works of the said lode mining claims of the Montana Company, Limited. The — 298 — petition was filed November 6, 1889, and the judge ordered that the hearing be had five days thereafter. The Montana Company, Limited, appeared and filed an answer, which denied the allegations of the petitioner. The court below made an order “that an inspection, examination, and survey of the shafts, tunnels, levels, works, and stopes be made as prayed for,” continuing twenty days, and designated eight persons to make the same; that “said party shall have the right to pass in and out the mouths of the tunnels of the defendant without hindrance;” that “said work shall be completed within said twenty days, unless for good cause the court shall order a longer time to be used; ” the survey by the said petitioner to be confined within the vertical planes of the end lines of the St. Louis Mining and Milling Company’s claim, except so far as it may be necessary to run lines in the tunnels, levels, stopes, drifts, or winzes outside of such planes, in order to complete an accurate survey of said workings within the said end lines; “. . . . the petitioner’s survey to be conducted, so far as possible, without interference with the regular and orderly working and operation of the mine, or the employees of defendant in ' the discharge of their various duties; and the engineer of the party of petitioner shall not dispose of or sell to any one any plan or section of said mine, or any matter or data obtained' during or resulting from this survey, except to the petitioner, its agents and attorneys. Petitioner’s surveyors are not to enter said mine unless accompanied by three representatives appointed by the defendant to accompany them, unless after reasonable notice, not to exceed one hour, such persons shall fail to attend. The persons so hereinbefore authorized to make such survey shall not take or remove from said mine any samples of ore or minerals at any point therein, but they shall be allowed to examine and trace the walls of the vein or fissure, and for this purpose they shall be allowed to use the pick, and remove such material as shall enable them to make such examination.” Afterwards, K,. T. Bayliss, the general manager and superintendent of the Montana Company, Limited, and who was in the control of the property which is described in the foregoing order, refused to comply therewith, or permit said persons to make the survey. Upon proper proceedings had in the premises, Bayliss — 299 — was arrested, and pleaded guilty to the charge of contempt of the court, and was punished by a fine. The Montana Company, Limited, appeals to the court from the “final judgment and order . . . . allowing an inspection, examination, and survey of the Marble Heart, Maskelyne, aud Nine Hour Quartz Lode Mining claims, .... duly made and entered in said action .... in favor of the above-named petitioner, and against this defendant, and from the whole aud every part thereof.” Upon the application of the Montana Company, Limited, a writ of certiorari was issued out of the court to the District Court, commanding it to certify fully to this court, and annex to the writ a transcript of the record and proceedings referred to, that the same might be reviewed. The argument upon this hearing has been restricted to one question. Counsel concede that all the proceedings in the court below have been regular in form, and derive their validity from the following section of the Code of Civil Procedure: “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 neces-'iry for the ascertainment, enforcement, or protection of such right or interest that an inspection, examination, or survey of such mine, lode, or mining claim should be had or made; or, whenever any inspection, examination, or survey of such lode or mining claim shall be necessary to protect, ascertain, or enforce the right or interest of any person in another mine, lead, lode, or mining claim, and the 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 Court, or a judge thereof, 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; the 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 place for hearing such petition, and shall order notice thereof to be served upon the adverse party, which notice shall — 300 — be served at leased one day before the day of hearing. On the hearing, either party may read affidavits; and if the court 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, and by such persous as are mentioned in the order. Such persons shall thereupon have free access to such mine, lead, lode, or mining claim for the purpose of making such inspection, examination, or survey, and any interference with such persons while acting under such order shall be contempt of court. If the order of the court is made while an action is pending between the parties to the order, the costs of obtaining the order shall abide the result of the action; but all costs of making such examination or survey shall be paid by the petitioner.” (§ 376.) It is contended that this statute is unconstitutional, and authorizes the inspection, examination, and survey of the mining property of the Montana Company, Limited, upon the petition of the St. Louis Mining and Milling Company of Montana, and before the commencement rof any action by the parties. The obnoxious features are pointed out in the brief, and may be summarized under the following heads: This law may be made an instrument of oppression and injustice. The quality of the interest of the petitioner is not defined. No bond is required to be given to secure the payment of the damages which may result to the owner of the property which is invaded. No appeal is allowed from the order of the court or judge in granting the prayer of the petitioner. The power of the court or judge is vast, and can practically confiscate any mine in the State. The innocent owners of mining property are injured without “due process of law,” and arbitrarily deprived of the right of trial by a jury. The commanding position of the mineral interests of this State, and the importance and extent of this remedy which is applicable to them, demand the careful study of the principles which have been invoked by counsel. Before we investigate the propositions which have been announced, it will be instructive to ascertain the origin of this provision of the Code, and thereby discover its purpose. The source is unquestionably found in the chancery practice of England, and we must review the cases which are generally controversies — 301 — affecting coal lands. In the Earl of Lonsdale v. Curwen, 3 Bligh O. S. 168, an order was made in the year 1799 that the plaintiff and his servants “should be at liberty to inspect the workings of the defendant under the plaintiff’s enclosures.” It is shown by affidavits that an inspection of the premises was then prevented “because the pipe or air course which conveyed the pure air had been broken down or taken away, and certain earth, rubbish, and other impediments were lying at the ends, roads, or passages leading to the workings.” It v'as thereupon further ordered that “the defendant should cause the obstructions to be removed, and open the air courses as the viewers should think necessary for such inspection; and that the viewers, and such other persons as they should appoint, should be at liberty, as often as should be necessary, to make from time to time inspections into the workings of the defendant under the premises of the plaintiff, so as to enable the viewers to make a perfect and complete report of the workings.” In Walker v. Fletcher, 3 Bligh O. S. 172, the same proceedings were had in the year 1804, and it was also ordered that the defendants should remove certain dams and obstructions in their works as the inspectors should direct, so that the plaintiff might view the pit of the defendants. In Blakesley v. Whieldon, 1 Hare, 176, the parties entered, in the year 1838, into a contract for the sale of minerals situated on certain tracts of land. Differences arose as to whether the plaintiff should have power to go down into any of the mines comprised in the contract, or whether the power, if granted, should not be confined to the right to descend any pits or shafts sunk on the land over the demised mines. In pursuance of the opinion of the vice-chancellor, a decree v'as entered, “empowering the plaintiff and his agents, at all reasonable times, and upon reasonable notice, to enter the mines in the pleadings mentioned, and to inspect and measure the same, so far as from time to time may be necessary.” The vice-chancellor observed that the evidence proved “that the power of inspection was an unusual reservation in cases like the present.” In Lewis v. Marsh, 8 Hare, 97, a bill was filed by the lessors of a colliery against the lessees, and heard in the high court of cliaueery in the year of 1849. It appears that “ there was no provision for inspection in the lease, and the defendants had worked the coal through a shaft in — 302 — an adjoining mine belonging"to themselves, so that the demised mine could only be entered through the defendants’ mine.” Counsel “moved that the defendants might be ordered to permit the plaintiffs, and certain persons mentioned in the notice of motion, all or any of them, with workmen and other necessary assistants, at all reasonable times, and from time to time, to have access to the coal works of the plaintiffs in and through the adjoining coal works of the defendants, to inspect and examine the said coal works, the property of the plaintiffs, and to ascertain the real extent, state, and condition thereof, and the real weight of the coal from time to time worked by the defendants therefrom.” They submitted that they “were entitled to the means of proving the fact that the defendants had worked beyond their boundary.” The defendants opposed the motion, upon the ground that “the plaintiffs might, if they had desired any such power of inspection, have reserved it in their lease; but they had made no such contract.The plaintiffs sought not only to inspect the demised coal works, but also to pass for that purpose into and through the property of the defendants. No implied contract gave the plaintiffs such a right. Admitting, that a power of inspecting their own mine might be impliedly reserved, it must be exercised in a lawful way, at their own expense. The plaintiffs might open a shaft, and descend into the mine, upon their own property; that must be the extent of their legal right under the contract.” The vice-chancellor, in the opinion, says: “I think the case is one in which there is a necessity that the party should be allowed what he asks, in order to prove his case. That is the meaning of necessity. A party cannot get his rights without proving what his rights are; and it is inherent in the case that the plaintiffs should have an opportunity of ascertaining that the defendants do not work more coal than they are entitled to do.” The order of the court is similar to that in Blakesley v. Whieldon, supra. The defendants objected to the admission into their mine of certain persons mentioned in the notice of the motion, and the plaintiffs consented to withdraw them; “and it is ordered that the defendants do permit the said plaintiffs, and the persons so to be appointed, .... to have access to, and to view and inspect the said mine and workings; but this order is not to entitle the plaintiffs to — 303 — view or inspect any part of the defendants’ mine except for the purpose of ascertaining the boundary of the plaintiffs’ mine.” In Bennitt v. Whitehouse, 28 Beav. 119, the master of the rolls says, in the opinion: “ It is established by the cases that,, if a person is making use of his property to the injury of the property of his neighbor, the latter is entitled to an inspection, in order to ascertain the extent of the injury; and this court only requires him to show a prima facie case. .... If it were a question depending only on the balance of testimony, I should, in this case, be in favor of the defendant. But the court requires the best evidence of the fact, and the best evidence here is by an examination of the workings in the defendant’s mine. Suppose a man had a right to the surface, and that another person was entitled to the minerals; if the latter insisted that the former had sunk a shaft, and was obstructing his minerals, would not* this court allow an inspection, in order that the facts in dispute might be ascertained? I have acted upon that principle in Adshead v. Needham, in which I allowed the plaintiff to go through a gallery in the defendants’ mine in order to inspect it."Whenever it appears that a person has power to make use of his land to the injury of another, and there is prima facie evidence of his doing so, though it is contradicted, still, as the only way of ascertaining the fact is by an inspection, the court always allows it, if it can be done without injury to the defendant.” In Bennett v. Griffiths, 30 Law J. Q. B. 98, the judgment of the court was delivered by Coekburn, C. J., who said: “The power to order an inspection of real or personal property has long existed in the courts of equity, and we find that as ancillary to that power, the courts • of equity have ordered the removal, where necessary, of obstructions to the inspection. In the notes to the East India Co. v. Kynaston, 3 Bligh O. S. 153, 168, two cases are referred to in which, under circumstances very similar to the present, such orders were made.” The learned judge then cites and approves the cases of Earl of Lonsdale v. Curwen, supra, and Walker v. Fletcher, supra, and adds the following observation: “This latter ease, which was decided in the time of Lord Eldon, is a strong assertion of the power to remove obstructions to inspection.” (See, also, Whaley v. Braucker, 10 L. T. N. S. 155.) — 304 — The English authorities which have been collated will be considered further, and we will now notice the American cases to which our attention has been invited. The earliest that we have read is Thornburg v. Savage Mining Co. 1 Pac. L. Mag. 267, which was decided in the year 1867, in the Circuit Court of the United States for the district of Nevada. The main issue was whether the property claimed by the plaintiff was a separate and distinct quartz lode from the vast mineral vein, which is known as the “ Comstock Lode,” and a petition was filed praying for an inspection of the premises. After a full statement of the facts, which it is needless to repeat, Mr. Justice Baldwin delivered this opinion: “ Ought á 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 á 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 seems 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; andean it refuse to learn the facts? But one adjudication of this subject can be found in the books, and this is in conformity with the views here expressed, viz., Bainbridge on Mines.” (See 2d ed. 511, 512.) The next case in point of time is that of Stockbridge v. Cone Iron Works, 102 Mass. 80, which was heard in the year 1869. — 305 — Chief Justice Chapman, in the opinion, says: “The plaintiffs complain that the defendants dug a shaft on their own land, near the line of the plaintiffs’ land, and thence excavated drifts, extending under-ground, into the plaintiffs’ land, and took out the ore which they found there. They ask that these drifts may be viewed. The order directs not only that the drifts may be examined by pumping the water out of the shaft, and going into it, and that the drifts may be examined which lead towards the plaintiffs’ land, and also those which are under it, but that they may be cleared, so far as may be necessary, in order to ascertain what iron ore or other mineral has been taken from the land of the plaintiffs, and under the surface thereof, and that the viewers may do all acts that may be reasonably necessary to be done to effect the purposes of the decree.” The expenses of the explorations amounted to the sum of $4,841.07, and were taxed against the defendants, with the costs. Upon this matter, the opinion says: “ But courts of law have power to allow the reasonable expenses of surveys and views in proper cases, and the fee bill does not apply to the expense of such proceedings. Mines are so situated that special and peculiar proceedings are sometimes necessary in order to attain the reasonable ends of justice in regard to the under-ground passages by which access to them may be obtained by trespassers.” In the cases of Thornburg v. Savage Min. Co. supra, and Stockbridge Iron Co. v. Cone Iron Works, supra, no authorities relating to this discussion are cited in the opinions, and the briefs of the counsel are not reported. In the year 1877, the case of Thomas Iron Co. v. Allentown Mining Co. 28 N. J. Eq. 77, was determined. An order for the inspection of a certain mine was made upon the ece parte application of the complainants, and the defendants insisted that they should have had notice thereof, and an opportunity to be heard. The chancellor says: “In a case like the present, where the application is for the inspection of a worked-out and almost abandoned mine, to ascertain the extent of the workings merely, and it appears that leave has been refused, the granting of the order for inspection is, on the making out of a prima fade case entitling the complainant to it, almost a matter of course.” After quoting from Bennitt v. Whitehouse, supra, and Lewis v. Marsh, supra, he concludes: — 306 — “If the granting of the order for inspection is a matter of course on a prima facie case, notwithstanding the sworn denial of the defendant, it would seem that it might, at the discretion of the court, be made without notice to the defendant. It is undoubtedly, however, the better practice to require notice, enjoining, in the mean time, so far as may be necessary to preserve the status quo.” It will seem that the order of the court below followed an unbroken line of precedents. The rule of equity which has been enforced by the courts of England and America is not of statutory growth. In this State the legislative department has endowed the chancery practice involved in this hearing with the form of law. We are not called upon to decide that the District Courts of the State may make the order complained of, in the absence of any requirement of the Code of Civil Procedure. We can vindicate with absolute certainty the existence of the right to make an order for the inspection and survey of a lode mining claim, where the appropriate steps have been taken by interested parties. The authorities treat the proceedings as the proper mode of securing “ the best evidence of which the case in its nature is susceptible.” There is not an assertion or suggestion by any jurist that rights of property are impaired or transgressed by the making of the orders for an inspection and survey. For this reason, a bond to indemnify the persons whose property may be inspected is not-asked for or required. But in Bennett v. Griffiths, supra, when authority was given for the destruction of a wall, to enable the viewers to perform their duty, the defendants testified that “it would be injurious to their mines if a gate road was driven through the wall; that the wall which had been erected was only the usual and proper wall, erected for the purpose of strengthening the gate road in that portion of the mine.” Under these circumstances, the plaintift was ordered to give security to save the defendants from any loss or damage resulting from the inspection. We have stated that the power of the courts of England over this matter was exercised as a branch of their chancery jurisdiction. In 1854 the Common-law Procedure Act was enacted, and the fifty-eighth section provides that “ either party shall be at liberty to apply to the court or a judge for a rule or order for — 307 — the inspection by the jury, or by himself, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute; and it shall be lawful for the court or a judge, if they or he think fit, to make such rule or order.” In the interpretation of this statute, the learned Chief Justice Cockburn, in Bennett v. Griffiths, supra, said: “The fifty-eighth section of the Common-law Procedure A.ct does not regulate the jurisdiction given to the courts of law by reference to that already exercised by the courts of equity; but we think that, as ancillary to the power of inspection given to the courts of common law, there is the same power given to remove obstructions, with a view to inspection, which was exercised by the courts of equity as ancillary to their power of ordering inspection.” The section of the Code under review does not empower any court or judge to grant an order that is fruitful of injustice or oppression. Whenever this is done, such action will exceed the authority that has been bestowed, and can be rightfully set aside. The bare fact that the St. Louis Mining and Milling Company of Montana petitions for an inspection and survey of the mining property referred to before its complaint has been filed is immaterial. The same object is to be attained at all times, regardless of the commencement of the suit, and that is the best evidence for the trial. In State v. Seymour, 35 N. J. L. 53, the court holds that the surveying and mapping of lands by legislative authority is not a taking thereof, and that it is not a trespass to go thereon for these purposes. In Winslow v. Gifford, 6 Cush. 327, it is held that an act of the legislature is not unconstitutional which authorized certain parties to enter upon private lands, and make surveys and establish boundaries; and Mr. Justice Dewey, in the opinion, says: “In effecting such an object, there may be, and often is, a brief, and, as it were, momentary interference with the absolute right of the owner of real estate. This exercise of power, in its various forms, is one of every day’s occurrence; indeed, so common as to be acquiesced in without remonstrance, or even a question as to the right so to do.” The statute does not provide for an appeal from the order, which has been reviewed, and the writ of certioi'ari has been — 308 — properly issued upon the application of tbe Montana Company, Limited. We are of the opinion that the District Court has not exceeded its jurisdiction in determining and granting the petition of the St. Louis Mining and Milling Company of Montana. It is therefore adjudged that the order and proceedings of the District Court be affirmed, with costs. Harwood, J., and.DE Witt, J., concur.