National Mines Co. v. Sixth Judicial District Court, State of Nevada ex rel. County of Humboldt

By the Court, NORCROSS, J.: Petitioner herein contends that the respondent court was without jurisdiction to make the order of survey in question, for the reason that section 3 (Comp. Laws, 252) supra, does not authorize such order in advance of a pending suit; that, if said section may be so construed as to permit such order in advance of a pending suit, then the same would be in violation of the constitution and void; that the said applicant, H. E. Orr, was not within the class of persons mentioned in section 1 of said act (Comp. Laws, 250), supra, and hence not entitled to an order in any event under its provisions. There have been but few cases considered by the courts involving the question of the power of a court to make an order for a survey of a mine prior to the institution — 72 — of suit. It is conceded that, in the absence of statutory authority, such an order may not be made. It was held by the Supreme Court of Montana in St. Louis M. & M. Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, that under the provisions of section 376, Code Civ. Proc., the then practice act of that state, an order could be made without a suit pending for a survey of the underground workings of a mine in the possession of another in which the party making the application has a right or interest. Upon appeal to the Supreme Court of the United States, involving the validity of the judgment, as tested by the fourteenth amendment of the federal constitution, the judgment of the Montana court was affirmed. (152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398.) In this later case the court, by Brewer, J., said: "The frequency with which these orders of inspection have of late years been made, and the fact that the right to make them has never been denied by the courts, is suggestive that there is no inherent vice in them. And, if the courts of equity by virtue of their general powers may rightfully order such an inspection in a case pending before them, surely it is within the power of a state by statute to provide the manner and conditions of such an inspection in advance of suit.” Section 376 of the earlier practice act of Montana was incorporated in the practice act of that state subsequently adopted, and is now section 1317 of the present practice act (section 6876, Revised Codes of Montana). It was held in State ex rel. Anaconda C. M. Co. v. District Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103, that this section only applied in cases in which the parties seeking a survey had an interest in the property sought to be surveyed, and that in all other cases the power to order a survey was governed by sections 1314 and 1315, Code Civ. Proc. 1895 (Rev. Codes, sections 6874, 6875), by the provisions of which a survey could not be ordered excepting in a pending action. This decision has been affirmed in several subsequent decisions of the Montana court. — 73 — In the case of People ex rel. Calumet G. M. & M. Co. v. De France, Judge, 29 Colo. 309, 68 Pac. 267, the Supreme Court of Colorado annulled an order of the trial court directing a survey of certain mining property in advance of a suit, and, in construing the provisions of section 364 of the Colorado code of procedure, held that such section did not contemplate the making of such an order excepting in the case of a pending suit. There is but one other case to which our attention has been called or which we have been able to find involving the question of an order of survey made in the absence of a pending suit, to wit, the case of In re Carr, 52 Kan. 688, 35 Pac. 818. The Carr case was in habeas corpus and the petitioner who had been committed for contempt for refusing admittance to the surveyor was discharged, but not upon the ground that the lower court was without jurisdiction to make the order in question. The Kansas statute applied only to coal mines and empowered the court or judge, upon the affidavit of a person in which it shall be made to appear that such person shall have good reason to believe that another person or persons, corporation or corporations, are without authority encroaching upon the land of the person aggrieved to make an order directing the county surveyor to survey the mine or mines of the person or persons, corporation or corporations, accused for the purpose of ascertaining the truth thereof. It is further provided in the act that: " Sec. 3. Whenever it shall be made to appear by petition verified by the oath of the plaintiff, his agent or attorney, and by the survey of the county surveyor, that any person or persons, corporation or corporations, is or are, without authority, mining or taking coal from the land of the plaintiff, whether held by lease or otherwise, it shall be the duty of the proper district court in term time, or the judge thereof in vacation, to grant a temporary injunction restraining such person or persons, corporation or corporations, from mining or taking coal from such land till the further order of the court or judge. — 74 — " Sec. 4. The proceedings in such case shall be in all respects similar to the course of procedure in actions for injunction.” (Laws 1877, c. 127.) The Kansas statute was attacked as being unconstitutional, but whether the attack was made upon the ground that the legislature had no power to provide for such a survey in the absence of a pending suit does not appear. The constitutional question is disposed of by the majority opinion of the court in the following terse sentence: "We perceive no good reason for holding the act unconstitutional so far as it applies to property in Kansas.” Johnson, J., concurred in the view that a survey could not be ordered or compelled in territory outside of the state (the coal mine being upon the boundary line between the States of Kansas and Missouri), but stated: "I do not desire to express any opinion upon the other objections made to the validity of chapter 127 of the laws of 1877.” In the opinion of the court by Allen, J., appears the following: "The remedy afforded by the act is an injunction. The survey is merely preliminary and for the purpose of ascertaining whether a cause of action exists.” The Kansas statute has never been involved in any subsequent case thus far reported. We think it may be conceded at least for the purposes of this case, that there is no inherent constitutional impediment against the legislature empowering the court or judge, upon the proper showing, to make an order for the survey of mining property in the absence of a pending suit, and that the only question we need consider in the present case is whether the statute of this state in question empowers a district court or judge to make such an order. It is now well settled that courts of equity have inherent power to make orders of this character in cases pending before them. Most, if not all, of the mining states, however, have statutes regulating the procedure to obtain these orders. These statutes generally provide for such orders to be made only in pending actions, and the only exceptions thereto may be found in the Kansas and Mon — 75 — tana statutes heretofore referred to, unless our own statute should be construed also to be an exception to the general rule. In enacting the statute of December 17, 1862, supra, the territorial legislature did not use language that was the most apt to express clearly its purpose and intent. This was doubtless the first statute passed in this country governing an order of survey of mining properties to be obtained by a party who had no interest therein, but who was affected by the operations thereof. Section 1 of the act, as originally passed, did not contain the last sentence quoted, supra, which was embodied therein by the amendment of 1891. Counsel upon both sides in this proceeding have presented elaborate arguments upon the construction of section 3 of the act; counsel for petitioner in this proceeding contending that the section should be construed only to permit an order for survey after the action is instituted, and counsel for the respondent contending for the contrary construction. One need but read the arguments advanced by respective counsel to appreciate that the section is ambiguous in many particulars. In construing any statute the language of which is not clear, it is well first to consider the law as it existed prior to the enactment. At the time this statute was enacted, no court of equity in this country had ever exercised its inherent power to order a survey of the underground workings of a mine, and, indeed, it is doubtful if any other character of survey had been so ordered. The first instance in this country in which a court of equity had ordered such a survey was in the Circuit Court of the United States for the District of Nevada in the case of Thornburgh v. Savage Mining Company, Fed. Cas. No. 13,986, 7 Morr. Min. Rep. 667, decided in 1867. The next case reported is that of Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80, decided in 1869. From the beginning of about the nineteenth century courts of chancery in England exercised the power in pending suits to order surveys of the surface and under — 76 — ground workings of mining properties. (3 Wigmore on Evidence, sec. 1862, p. 2456.) Sections 258 and 259 of the practice act of the Territory of Nevada, which substantially corresponds to sections 260 and 261 of our present practice act (Comp. Laws, 3355, 3356), provided as follows: "Sec. 258. The court in which an action is pending for recovery of real property, or a judge thereof, may, on motion, upon notice to either party, for good cause shown, grant an order allowing to such party the right to enter the property and make a survey and measurements thereof, for the purpose of the action. " Sec. 259. The order shall describe the property, and a copy thereof shall be served on the owner or occupant, and thereupon such party may enter upon the property with necessary surveyors and assistants and make such survey and measurements; but if any unnecessary injury be done to the property, he shall be liable therefor.” From the foregoing it appears that at the time the statute of 1862 was enacted no court possessed power to make an order of survey excepting in a pending suit. Courts of equity in this country had not up to that time assumed the exercise of their inherent powers in this regard, and they were then undefined. The statute of the territory had provided for an order of survey in pending actions for the survey of real property, but whether this statute was or is broad enough to permit a survey of the underground workings of a mine in an action for damages in trespass committed below the surface of the earth may seriously be questioned. We think it appears from a reading of section 1 of the act in question that the legislature intended either to create a new cause of action where none existed before or to make clear and unquestionable what may have been deemed a doubtful right, particularly that of enjoining mine owners or operators from so conducting their operations as to endanger the safety of adjoining properties. The right to recover damages for a trespass was so well known and understood that it needed no statutory pro — 77 — vision to create or clearly define such right of action, and this may account for the specific reference to trespass in the third section and not in the first as originally enacted. There was, however, just as much reason for a survey' in the case of an underground trespass as in the other causes of action mentioned in section one. The manifestly crude manner in which the act was prepared and the ambiguous language used has left it open to argument as to whether the legislature intended' that an order of survey in any of the cases mentioned in the the statute could be made except in a pending suit. Were the act equally susceptible of two constructions, we would be disposed to hold that the legislature would not be presumed to intend a radical change in existing procedure, and would construe the act in harmony therewith. In other words, we would not construe a statute so as to permit such an order for survey without a suit pending in the absence of language clearly manifesting such an intent upon the part of the legislature. We think section 3 does not express such a clear intent, but, upon the contrary, there is language used which, under a well-recognized rule of statutory construction, manifests a contrary intent. Both parties to this proceeding have laid stress upon the following sentence of section 3 as supporting their divergent views as to the legislative intent as deduced from the- language of the statute: "The costs of the order and survey shall be paid by the persons making the application, unless such parties shall subsequently maintain an action and recover damages as provided for in the first two sections of this act, ” etc. We think the contention of counsel for petitioner herein supported by the better reasoning. If the word "maintain” as used in section 3 is given the same meaning as it has in section 1, then it means to support and carry on an action that has theretofore been instituted. The word "maintain,” as used frequently in statutes in reference to actions, comprehends the institution as well as the support of the action, and the statutes of this state contain many instances where it is used in this — 78 — broader sense. It is used in other instances to express a meaning corresponding to its more restricted and more proper definition, as in the cases of Carson-Rand v. Stern, 129 Mo. 381, 31 S. W. 772, 32 L. R. A. 420, and Cal. Savings Co. v. Harris, 111 Cal. 133, 43 Pac. 525, cited in petitioner’s brief, where it was construed not to comprehend the institution of an action, but merely the support thereof. In section 1 the two words are used together, "institute and maintain”; and hence both are used in their restricted sense. If both words had been used in section 3, there would have been no room for construction. The power to make the order prior to the institution of the suit would have been manifest. The word " maintain” only was used, and it will be presumed to be used in the same sense and with the same meaning in which it was used in section 1; there being nothing in the statute to clearly indicate that it was used in any different sense. “ Where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and, where its meaning in one instance is clear, this meaning will be attached to it elsewhere, unless it clearly appears from the whole statute that it was the intention of the legislature to use it in different senses.” (36 Cyc. 1132, and authorities cited in notes.) Much stress has been laid on the fact that section 3, supra, does not use the word "plaintiff” as the one who may apply for the survey or upon whose behalf such application may be made, but uses instead the words "any person or persons named in the first two sections of this act, shall have the right to apply,” etc., also, that the affidavit is required to set forth facts that would be disclosed by the complaint were an action pending, as indicating that the legislature did not contemplate a pending suit at the time of the application and order for the survey. Conceding the force of this argument, we do not deem it sufficient to outweigh the reasons given in support of the contrary construction. The only person or persons — 79 — named in section 2 of the act in question is the judgment debtor or debtors, and it is difficult to conceive why the legislature should have referred to section 2 at all, as that section only provides that the judgment recovered in the action shall be a lien on the property of the judgment debtors. A judgment debtor must, before he can become such, be a party to an action. If a reference to section 2 is any aid to construing section 3, we are unable to see wherein it tends to support the position of counsel for respondent. Section 1 specifies all those who have a right of action under the provisions of that section, and any within the class mentioned also have the right to apply for an order of survey, but this reference does not preclude the idea that such persons shall be parties to a pending suit. A complaint may not of necessity contain all the matters required to be set forth in the affidavit for the order of survey, and it is not required to be sworn to, and this may have been the reason why the legislature specified with particularity what the affidavit should contain. In any event, it is not inconsistent with the construction of the section so as to require a pending suit. The Colorado statute, like ours, does not use the terms ''plaintiff” and "defendant” to indicate the parties to the proceeding to obtain the order, but the Colorado court construed their statute to apply only in case of a pending suit. While possibly not a matter to be considered of any considerable weight, it is worthy of note that the text-writers on mining law have placed the Nevada statute in question in the category of those requiring an action pending before an order of survey may be made. (Lind-ley on Mines, 873; Snider on Mines, 1637; Morrison’s Mining Rights, 14th ed., p. 432; Costigan on Mining Law, p. 519.) Mr. Snider in his work says: "It will be readily observed that all these statutes agree upon one proposition, namely, that an action must be pending at the time the application for a survey is made. ” Having reached the conclusion that the statute in question does not authorize an order of survey excepting in a — 80 — pending suit, it follows that any such order would be in excess of jurisdiction and void. The order under review herein is annulled. Sweeney, C. J.: I concur.