L. G. Campbell, for Petitioner.
Curler & Martinson and R. C. Thayer, for Respondents.
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 person 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
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.
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.
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
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. ...