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

AIR. CHIEF JUSTICE BRANTLY delivered the opinion of tlie court. On January 21, 1902, there being no suit pending- between the parties involving their respective claims or either of them, E. Augustus Ileinze filed his petition in the district court 'of Silver Bow county, asking for an order under Section 1317 of the Code of Civil Procedure, permitting him to enter into the workings in the Anaconda and St. Lawrence claims, in the possession of relator, and to inspect and survey the same in order to determine whether the relator was committing a trespass upon the Belmont Claim, in possession of petitioner and lying to the south. The petition alleged, upon information and belief, that relator, by means of underground workings, had entered beneath the Belmont claim and was engaged in extracting ore belonging to petitioner. It was also alleged that permission to enter and male© the inspection and survey had been refused by relator after demand made in conformity to the statute. A hearing ivas had under an order to show cause, which resulted in an order permitting the inspection and survey to be made. Thereupon the relator applied to this court for relief from the order, alleging that the district court had no jurisdiction to make the same. After a hearing upon the application, this court issued a writ of certiorari directing that the proceedings had be certified to this court for review. The questions presented in this case are in all respects the saíne as those presented in Stale ex rel. Anaconda Copper Mining Co. v. District Court (ante, 396, 68 Pac. 570), this day decided. The situation of the claims of the parties is the same. The petitioner, by the statements contained in his petition, sliows that he has no interest in the premises in possession of' [414] relator through which entry is sought to be made. Upon the authorityof State ex rel. Anaconda Copper Mining Co. v. District Court, supra, the court was wholly without jurisdiction to make the order. It is therefore annulled. Annulled. Motion for rehearing denied, June 2, 1902. [For opinion on motion for rehearing, see ante, 411.]