Montana Company v. St. Louis Mining Milling Company

Statement by Mr. Justice BREWER: The facts in this case are as follows: On November 6, 1889, the defendant in error filed in the district court of the county of Lewis and Clarke, in the then territory of Montana, its petition praying an order for the inspection of certain mines alleged to be the property and in possession of the Montana Company, Limited. Notice was given, the defendant appeared and answered, a hearing was had, and on the 7th of December, 1889, an order for an inspection was made by the judge of said court. This order recited the giving of the notice, the hearing of the application, the production of evidence, and the arguments of counsel; finds that an inspection is necessary for the ascertainment, enforcement, and protection of the rights and interests of the petitioner in the mining claim owned by it; appoints the inspectors, and directs that they make an inspection, examination, and survey. It limits the survey to the vertical planes of the end lines of the petitioners' claim, forbids the removal of any ore or minerals, or entrance to the mine unless accompanied by three representatives of the defendant, and in general makes suitable provisions to prevent any unnecessary interference with the defendant's working of the mine. By subsequent proceedings in the way of contempt, Rawlinson T. Bayliss, the general manager of the Montana Company, Limited, became a party to this litigation, and, upon an adverse termination thereof in the district court, a review was sought in the supreme court of the state, the territory having been admitted into the Union intermediate the filing of the application and the final disposition of the case in the district court. By that court the proceedings were sustained, and on February 4, 1890, it entered a judgment of affirmance. 23 Pac. 510. To review this judgment the defendants sued out a writ of error from this court. The statute under which the proceedings were had is section 376 of the Code of Civil Procedure, (Comp. St. p. 162,) and is in these words: '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 necessary for the ascertainment, enforcement, or protection or 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 any 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 be served at least 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 persons 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.' W. E. Cullen, A. H. Garland, and Heber J. May, for plaintiffs in error.

[Argument of Counsel from pages 163-164 intentionally omitted]

John B. Clayberg, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.