Butte & Boston Consol. Mining Co. v. Montana Ore Purchasing Co.

MR. JUSTICE PIGOTT delivered the opinion of the Court. The former opinion in this case is reported in 24 Montana, at page 125, and in 60 Pacific Reporter, at page 1039. Being-inclined to the view that, if the provisos of House Bill No. i -of the Session Laws of 1899 (Laws of 1899, page 134, hereinafter referred to) are applicable to co-tenancies created prior to the passage of that bill, the injunction was probably too broad in its terms, we granted a rehearing, and the cause has been again argued. The facts upon which the original decision was based are stated in the former opinion. The following facts are pertinent to the question which we shall consider upon the rehearing: The plaintiff and the defendants Ileinze are, and since 1893 have been, tenants in common of the Snohomish — 67 — and Tramway lode mining claims. The defendant administrator and the defendant Larkin, as heir, assert that the equitable title to the undivided interests of which the plaintiff is the legal owner is in the heir, but this is controverted by the plaintiff. The defendant Montana Ore Purchasing Company owns the Rarus lode mining claim, and this defendant and the defendants Heinze had entered the Snohomish and Tramway from the Rarus through underground workings of the latter^ had mined large quantities of valuable ore from the veins ox the common property, had hoisted and removed the same through the Rarus shaft, and had appropriated it to their own use, — all without the consent of the plaintiff. These acts they threatened to continue doing. In its former decision this Court reversed the order of the district court refusing to grant an injunction pendente lite, the effect of which was, in the particular case, a direction to the court below to issue the injunction as prayed, restraining the defendants from entering upon and mining the common property at any place. If the defendants who are co-owners with the plaintiff in the Snohomish and Tramway should sink a shaft or make an opening on either one of these claims, and mine and extract ore therefrom, a question different from that determined in the former decision would necessarily arise. The constitutionality of Section 592 of the Code of Civil Procedure, as amended by the Act of February 28, 1899, commonly known as “House Bill No. 1,” would be involved; if it be constitutional when applied to the co-tenancy between the plaintiff and the Heinzes, and the defendants in mining and removing the ore through openings on the Snohomish or Tramway should bring themselves within the provisos of the Act, the injunction would be too. broad. We think the Court is therefore in duty bound to determine whether the Act, if intended to be applicable to co-tenancies existing at the time of its passage, is, as to such co-tenancies, repugnant to the Constitution. The plaintiff argues that the Act attempts to deprive co-tenants whose estate existed when the Act of 1899 became operative, of their property without — 68 — due process of law, disturbs their vested rights, and is a law impairing the obligations of contracts. We are satisfied that the provisos of Iiouse Bill No. 1 of the Laws of 1899 were intended to apply as .well to co-tenants whose estates were in existence when the law was passed, as to those whose estates have been or may be created after its passage. Does the amendment made by the Act of 1899 to Section 592 of the Code of Civil Procedure disturb or impair the vested rights of co-tenants whose estates were in existence at the time the amendment became operative? If it does, it is repugnant to those parts of Sections 3 and 27 of Article III of the Constitution of the State declaring that all persons have the natural, essential and inalienable right of acquiring, possessing and protecting property, and ordaining that no x>orson shall be deprived of xmoperty without due x>rocess of law. If it does, it is repugnant also to the “due x>rocess of law” clause of the 'Fourteenth Amendment to the Federal Constitution. In 1813 the general assembly of Illinois prassed the following statute, entitled An Act Concerning “Joint Rights, and Obligations” (Rev. St. Ill. 1815, p. 299) : “Section 1. * * * If partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivors, but descend or pass by devise, and shall bo subject to debts, dower, charges, etc., or transmissible to executors or administrator’s, and be considered, to every intent and pmrpwse, in the same view as if such deceased joint tenants had been tenants in common. “Sec. 2. If any person shall assume and exercise exclusive control [after’wards changed to 'ownership’] over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy, tenancy in common or coparcenary, the party aggrieved shall have his action of tresx>ass or trover for the injury, in the same manner as he would have if such joint tenancy, tenancy in common, or coparcenary did not. exist. • — 69 — “Sec. 3. All joint obligations and covenants shall he taken and held to be joint and several obligations and covenants.” Section 2 received an interpretation in Benjamin v. Stremple, 13 Illinois, 466, and Boyle v. Levings, 28 Illinois, 314, decided in 1851 and 1862, respectively. These three sections were adopted by Montana. At the first session of the legislative assembly of the Territory of Montana an Act entitled “An Act Concerning Joint Bights and Obligations,” approved February 8, 1865, was passed (Bannack Statutes, p. 454;. It is as follows: “Sectiofi 1. If any partition be not made between joint tenants, the property of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to execution or administration, and be considered to every intent and purpose in the same view as if such deceased joint tenants had been tenants in common. “Sec. 2. If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy, tenancy in common or copartenary, the party aggrieved shall have his action of trespass or trover for the injury in the same manner ■ as he would have if such joint tenancy, tenancy in common or copartenary did not exist. “Sec. 3. All joint obligations and covenants shall liereafter be taken and held to be joint and several obligations and covenants. “Sec. 4. This act to take effect and be in force from and after its passage.” Thereafter the provisions of the Act of 1865 were included in an Act entitled “An Act revising, enacting and codifying the general and permanent laws of Montana Territory,” the Act of 1865 constituting Chapter 36 of the compilation of 1871-72, the subject of the chapter being designated as “Joint Bights.” In the subsequent compilation of 1887 the provisions of the Act of 1865 were re-enacted without change, appearing — 70 — as Chapter 77 of the general laws, and found at page 1006 of the Compiled Statutes of 1887,the chapter being entitled “Joint Rights.” Until the adoption of the Code of Civil Procedure of 1895, the Act of 1865 remained in force as originally passed. Por more than thirty years, therefore, the Act of 1865 constituted the only legislation of this territory and state touching the subjects-affected by it. What, then, was the purpose and what the effect of these enactments, which were among the earliest legislative steps taken by the territorial government, and which remained for so long a time unchanged ? By its title the Act declares that the subject sought to be affected by its provisions. is “Joint Rights and Obligations/’ and, as the third section of the law treats specifically of “Joint Obligations,” it should seem clear that, if the title of the. Act may be treated as any evidence of its meaning, sections 1 and 2 were designed to treat of “joint rights.” It is hardly needful to observe that, if the provisions of the enacting portion of the statute actually depart from the purpose indicated by the title, they would not (under the Organic Act as it then was) be restricted by it; but if sections 1 and 2 render the meaning ambiguous, or leave the legislative intent doubtful, the avowed purpose of the legislation, as the purpose is declared in the title, would prove, at the least, of benefit in the effort to ascertain the design of that branch of the government whose purposes, when ascertained, must be respected and announced by the judiciary. We find that by the first section of the Act itself the legislative assembly plainly intended to destroy the right .of survivorship which constituted the distinguishing feature of the species.of tenure known as “joint tenancy,” and the provisions and unmistakable purpose of the Act are thus far consistent with its title, for, manifestly, such a substantial modification of the rights of joint tenants deals exclusively with “joint rights,” and accounts, at least in part, for that portion of the title which declares that the Act is one concerning “joint rights.” We cannot agree with the courts which hold that the legislature has power to convert existing joint tenancies into tenancies in common; — 71 — the right of survivorship — the indispensable ingredient and characteristic of the estate, and not a mere expectancy or possibility, as, for example, is the inchoate right of dower — accrues-as a vested right when and as soon as the joint tenancvis created,, and the legislature is without authority to devest or interfere-with such right. A joint tenant cannot be so deprived of his-property. Constitutional limitations, state and national, prohibit it. We observe, therefore, that the first section was not: and could not have been retrospective in its operation, but that, it affected subsequently accruing rights only, which, in the absence of the statute, would have constituted joint tenancies. Turning, now, to the second section, and expecting, by reason: of the terms of the title, to find that its provisions relate either to “joint rights” or to “joint obligations,” we are surprised to-find its language more suited to legislation concerning remedial procedure than to either of the subjects indicated by the title-It provides that if “any person” (not necessarily a co-tenant} “shall assume and exercise exclusive ownership over, or takeaway, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy, tenancy in common, or copartenarv,” then “the party aggrieved shall have his action of trespass or trover for the injury,” and that this aggrieved party shall have such action “in the same manner as he would have-if such joint tenancy, tenancy in common, or copartenary did not exist.” Without consideration, for the present, of .the significance of the word “any” in the first line of the section, and assuming that the section relates solely to co-tenants, what was: its purpose and effect as to them ? It declares that, under the-circumstances described, “the aggrieved party (co-tenant) shall have his action of trespass or trover for the injury.” A superficial examination of this provision would naturally induce the-conclusion that it relates only to the remedy “for the injury”’ to an aggrieved co-tenant; but no very serious reflection is re-, quired to suggest the indisputable proposition that some, at; least, of the acts recited in the section do not constitute “injuries” to the co-tenant, or make him an “aggrieved party,”" — 72 — unless the statute modified t-lie rights of co-tenants; for instance, no wrong was done under the common law if one co-tenant, without the consent of the other owners, in the proper way mined and took away the product from the subject of the common ownership which had been acquired for the purpose of mining, and was adapted to that use, or worked in a miner-like manner mines open when the co-tenancy was created, and íemoved the ores and deposits, although the value of the land might bo lessened thereby. Whether these sections worked a change in the law by creating rights not theretofore existing, or provided remedies only, is the important and difficult question presented in the case at bar. If merely remedial, then they did no more than provide additional means of redress for the violation of rights recognized at'law or in equity. If, on the other hand, these sections created new rights in property, and incidentally prescribed remedies for the invasion of such rights, it will be sufficient, for the purposes of the-present inquiry, to determine xvhethel the supposed right asserted by the plaintiff was so created, and ■whether it became vested before the amendment of 1899 went into effect; and the extent of the changes made by the Act of 1865, with respect to the obligations and liabilities of co-tenants the one to the other need not be examined, except in so far as a discussion of them may bo necessary to a clear understanding of the points here presented. Before the passage of the statute of I860, a tenant in common, although liable in trespass to his co-tenant for an unlawful destruction of the common property or of part of it, or of the interest of the co-tenant, had the right to “assume and exercise exclusive ownership over” (provided neither ouster nor conversion resulted), “or take away, * * * lessen in value, or otherwise injure or abuse” the common property (provided the act did not amount to ouster, waste, conversion, or unlawful destruction), and hence the exercise of that right could not operate as an “injury;” in other words: Under the common law one tenant in common is not aggrieved, — that is — 73 — to say, lie lias suffered no legal injury, — by Ms co-tenant’s assuming and exercising exclusive ownership over, taking away, lessening in value, or otherwise injuring or abusing the common property, unless the act amounts to an ouster, to vraste, to a conversion, or to an unlawful destruction of the common property or of some part of it, or of the interest of the other tenant. If, therefore, this section does not affect joint (or common) rights, as the title would indicate that it does, and if it relates exclusively to a remedy, it manifestly constitutes an attempt by the legislature to create a privilege to resort to a judicial procedure for the purpose of preventing the exercise of certain lawful rights; such an attempt would, of course, be futile, as it would exceed the constitutional powers of any legislative body, and hence such a purpose ought not to be attributed to the legislative assembly, unless no other construction of the law is consistent with the legislative purpose within the, scope of its recognized authority. A remedy without a right to be protected thereby, or a wrong without a correlative right, is inconceivable. Although thus forced to reject the view that this section relates exclusively to remedial procedure, we are. still impelled to recognize and concede the fact that it plainly purports to make provision for actions between co-tenants -which could not have been maintained prior to the Act, and that such actions should be maintainable by reason of certain wrongs which formerly were not wrongs and could not have constituted causes of action. Such, in effect, were the principles upon which Benjamin v. Stremplé and Boyle v. Levings, supra, were based, and the statute bore this interpretation at the time it was adopted from Illinois. When a statute has been adopted by this state from another state, after a judicial interpretation, suitable to the conditions of this state, has been placed upon it by the parent state, the legislative assembly will, ordinarily, be presumed to have adopted the interpretation with the statute, and the courts will depart from it only for strong.reasons. (Stadler v. First National Bank of Helena, 22 Mont. 190, 203, 56 Pac. 111.) — 74 — In view of this plain purpose, declared in unmistakable terms in the Act; in view of the fact that this purpose could be accomplished only by modifying the relations incident to co-tenancy and creating new rights in the co-tenants; and in view of the avowed object of the statute as declared in its title, the conclusion cannot be escaped that the legislative assembly clearly intended by this awkwardly worded section to alter substantially the rights of co-tenants, make violations of those rights constitute legal injuries, and designate the appropriate remedies for such injuries. Wo may observe also that it is only by this construction that the seemingly proper legal significance of the word “any” in the first line of section 2 is understood, for if this section is not intended to declare the rights and incidentally prescribe the remedies of eo-tenaants inter sese, but merely regulates remedies, -then it must be held to give a separate cause of action to each co-tenant against “any” person who does any of the things recited therein, and to entitle each co-tenant to maintain (though perhaps the judgment would be only for the amount of damages suffered by him) such an action against a stranger “in the same manner as he would have if such joint tenancy, tenancy in common or coparcenary did not exist.” Possibly it may have been intended that as against a stranger committing any of the acts denounced as wrongs, a tenant might as sole plaintiff maintain trespass or trover to enforce his rights under circumstances where at the common law' he would be required to join his co-tenants with him or, upon their refusal to join, make them defendants. Subject to certain exceptions, joint tenants and tenants in common must, by the rules of the common law, join in actions .for damages resulting from tortious wrongs done to the common property; and if one purpose of the statute of 18 G 5 was to permit a co-tenant when aggrieved by a stranger to recover as sole plaintiff for the injury suffered by him, it does seem somewhat peculiar that the statute prescribed the actions of trespass and trover as the forms to be employed in redressing his grievances, and omitted reference to those other actions — such as trespass — 75 — on the case, replevin, detinue and the like — which are the ap* propriate and exclusive remedies for many wrongs as serious as are those which may be righted by judgments in trespass or trover. We need not, however, determine whether the statute of 1865 enlarged the rights or remedies of co-tenants as against strangers; that question is not directly involved in the case at bar. Suffice it to say that the statute did create rights in co-tenants among themselves, and if the statute provided also rights or remedies, or both, in favor of co-tenants as against strangers, this provision in no Avise affected the provision in respect of the rights of co-tenants inter sese. If in a case involving the rights and remedies of co-tenants as against strangers the determination should be reached that the statute of 1865 Avas. designed to give rights or remedies as against strangers, such a decision Avould not militate against the conclusion Avhich Ave have announced touching the rights of co-tenants among themselves; and, neither purpose being in conflict Avith the other, each Avould be recognized and made effectual. Counsel in their learned and able arguments make incursions into the domain of ethics and make plausible suggestions touching the moral rights and remediless Avrongs of co-tenants, Avhich they assert existed prior to the Act of 1865, though they concede that no action or suit could be invoked to protect the rights or redress or prevent the Avrongs; but we are of the opinion that the purpose of this section Avas to destroy those characteristics of tenancies in common Avherein they mainly differ from' holdings in severalty, leaving the necessity for voluntary or judicial partition as the chief remnant of the distingrrishing features of this species of oAvnersbip, — in other AArords, the first and second sections, Avhich concern “Joint Bights,” practically convert a joint tenancy into a tenancy in common, and then convert tenancy in common into an estate AATith many (Avhether with all avc need not decide) of the rights and privileges incident to several OAAmership and giving the actions of trespass and trover for their protection. HaAing thus reached the conclusion that the second section — 76 — of the statute created new property rights in co-tenants, we must hold, as wo have already held concerning the first section, that it could not under the organic law have been retroactive in its operation. As is admitted, the co-tenancy in the case at bar came into existence after the Act of 1865 became law and before 1895. Por one co-tenant without the consent of the other to mine and remove ore from the common property is an unauthorized taking away and lessening in value of the property within the meaning of the Act of 1805; it is a permanent injury thereto (Murray v. Haverty, 70 Ill. 316; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642), and the principle declared in the Act of 1865, at least as respects co-tenancies in quartz and placer mining claims, is that the common property shall remain an entirety until partition, and that no one of the owners may, without the consent of the other owners, work it or lessen its intrinsic value by mining and removing the ore or deposits. With these views as to the force and effect of this early and long-standing legislation, we now approach the consideration i of the more recent enactments concerning this subject. Tn the Code of Civil Procedure adopted in 1895, Section 2 of the Act of 1865 became Section 592, being a portion of Title III of Part II of that Code. Section 592 omits the word “copartenary” and also the "words “of trespass or trover” from the language of Section 2 of the Act of 1865, but in other respects it is the same as section 2 of the original Act. Wo do not think that the placing of this so slightly modified section into the Code of Civil Procedure and into that part of it entitled “Parties to Civil Actions” is of real significance, or could possibly operate vitally to alter the legal meaning and effect of the long-established legislation; and this view is strengthened by Section 3454 of the Code of Civil Procedure, "which is as follows: “The provisions of this Code, so far as they are substantially the same as existing statutes or the common la"w, must be construed as continuations thereof, and not as new enactments.” We therefore regard Section 592 of the Code of Civil Proced" — 77 — tire as a substantial re-enactment or continuance of tbe old Am of 1865, except in so far as it was modified by tbe omission of the words “of trespass or trover.” In Anaconda Copper Mining Company v. Butte & Boston Alining Company, 17 Montana, 519, 43 Pacific Reporter, 924, this Court after an examination of the section, considered especially as an amendment to tbe previous legislation, held tbat its effect was to enlarge tbe remedies of co-tenants by permitting any appropriate action for sucb injuries as were contemplated by tbat section and tbe statutes substantially re-enacted by it; this case was followed by Red Mountain Consolidated Mining Company v. Esler, 18 Montana, 174, 44 Pacific Reporter, 523; by Connole v. Boston & Montana Consolidated Copper and Silver Mining Company, 20 Montana, 523, 52 Pacific Reporter, 263; and by Harrigan v. Lynch, supra. If tbe decision in the Anaconda Case deserves adverse criticism, as counsel for tbe defendants insist that it does, it is not because of tlie result reached, but rather because of tbe undue significance attached to the amendment omitting tbe words “of trespass or trover.” It should seem tbat even under tbe Act of I860 tlie tenant who was entitled to maintain an action of trespass against bis co-tenant in tbe same manner as bo would have if sucb joint tenancy or tenancy in common did not exist was, in tbe proper case, entitled to an injunction as an ancillary remedy to prevent a repeated or continuing trespass, — tbe right to sucb equitable aid not being tbe creature of tlie statute but arising under tbe •operation of tbe principles of equity applicable to all cases of continuing and irreparable trespass, both in order to prevent a multiplicity of suits and in order to prevent the commission of a threatened legal wrong, for which, when done, an action at law for damages would be an inadequate remedy. Wc feel satisfied tbat injunction would be an appropriate auxiliary remedy in sucb a case, especially where, as in Montana, law and equity are administered by tbe same court and often in tbe same case; but in any event it is apparent from the authorities last cited that the remedy by injunction, if not granted by the Act of — 78 — 1865, is granted by section 592, and the giving of this new remedy for an old wrong violates no constitutional right. With this understanding of the meaning and general purpose of the Act of 1865, with its light amendment of 1895, we now address ourselves to the amending provisos contained in the Act of 1899, commonly called “House Bill No. 1,” and entitled “An Act to amend Section 592 of the Code of Civil Procedure of Montana, relating to property held in joint tenancy and tenancy in common.” This Act is as follows: “Be it enacted by the Legislative Assembly of the State of Montana: “Section 1. That Section 592 of the Code of Civil Procedure of Montana, be and the same is hereby amended so as to read as follows: “Sec. 592. If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value or otherwise injure or abuse any property held in joint tenancy, or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist. “Provided: That nothing herein contained shall prevent one co-tenant or joint tenant or any number of co-tenants or joint tenants acting together less than all, from enterng on the common property at any point or points not then in the actual occupancy of the'non-joining co-tenants or joint tenants and enjoying all rights of occupancy of the property, without waste; and in the case of mining property, from mining the same in a miner like manner, and extracting, milling and disposing of the ore from the common property, paying its or their own expenses, and subject to accounting to the non-joining co-tenant or joint tenant for the net profits of such mining operations, if any made; and all liens for labor and materials incurred in such mining shall attach only to the undivided interest or interests of the working co-tenants or joint tenants, but nothing herein shall prevent or preclude the co-tenant or joint tenant, not joining in the operation of such mining property from re — 79 — ceiving his, its, or their proportionate share of all ore or ores on the dump upon payment or tendering payment of the actual cost of mining the same.” If our interpretation of the second section of the Act of 1865 is correct, and if we are justified also in the opinion that the section, when so interpreted, could not be retrospective in its operation and could apply to and affect only estates created after the Act was passed, it seems quite clear that a like view must be taken with respect to the amendment of 1899 touching the working of a mine and the taking of ore therefrom by one tenant without the consent of his co-tenants; for it was plainly intended to restore to one class of co-tenants certain valuable rights which were taken away by the Act of 1865, and to deprive another class of valuable rights which were created by that Act. Careful examination of the amendment must, we think, result in the view that it could not impair any rights then existing and is therefore inoperative as to them; its language is not such as would seem appropriate for the purpose of any positive enactment, but is rather suitable as expressive of merely legislative construction. Its declaration is “that nothing herein contained shall prevent,” and while, if such a clause had been inserted in the original Act of 1865, it would have operated as a restriction upon the legislative force of the main body of the section, yet, considered as an amendment, it must be regarded as trespassing upon the powers and functions of courts or as meaning that “nothing contained in this section shall so operate on tenancies hereafter created as to prevent,” etc. The preventive force ef an Act, as well as its positive effect, is to be determined by the judiciary and, though the legislative assembly may and often does alter existing statutes because of their legal meaning as ascertained and announced by the courts, the lawmaking power cannot determine the past legal force and effect of any statute; such power would involve the right to review and reverse the rulings of those tribunals to which the people have intrusted exclusively .the power and duty of interpreting all Acts and determining both their positive force and — 80 — tlieir preventivo operation. Whatever rights are created or conferred by the amendment of 1899 did not exist theretofore and, unless we have erred in the views expressed as to the force and effect of the Act of 1865 and as to the vested rights of co-tenants under it before the amendment, the conclusion that the amendment does not apply to properly rights of persons whose co-tenancies were created prior to the time it took effect must be correct. Our opinion is, therefore, that any co-tenant whose estate was created after the Act of 1865 took effect and before the amendment of 1899 became operative is entitled to restrain by injunction the commission by his co-tenant of any of the acts denounced in the original statute of 1865 and in Section 592 of the Code of Civil Procedure, provided, of course, that the remedy at law is inadequate and the threatened injury irreparable, — in other words, we do not consider that any rights in property conferred upon or taken away from co-tenants by the Act of 1865 are affected by the Act of 1899, and that the latter Act is only prospective in its operation. Further than they are involved in the case at bar we do not attempt to define the character or extent of the rights so created by the Act of 1865.' In so far as the part of the amendment under consideration and affecting the present case was intended to apply to estates existing at the time the Act of 1899 became operative, it must be held to' be an attempt to disturb or destroy vested rights, and therefore to be void. Whether the amendment is void as to the plaintiff upon the further ground that it impairs the obligation of a contract is a question which, being unnecessary to a decision, is reserved. The order refusing an injunction is reversed and the cause is remanded. Reversed and Remanded. Mu. Justice Milburn, not having hoard the argument, does not participate in the foregoing’ opinion. Rehearing denied March 4, 1901.