National Mines Co. v. Sixth Judicial Dist. Court Humboldt County

• Decision Date: 20 June 1911
• Docket Number: 1,951.
• Citation: 116 P. 996,34 Nev. 67
• Parties: NATIONAL MINES CO. v. SIXTH JUDICIAL DIST. COURT, HUMBOLDT COUNTY, et al.
• Court: Nevada Supreme Court

116 P. 996

34 Nev. 67

NATIONAL MINES CO. v. SIXTH JUDICIAL DIST. COURT, HUMBOLDT COUNTY, et al.

No. 1,951.

Supreme Court of Nevada

June 20, 1911

Original proceeding in certiorari by the National Mines Company against the Sixth Judicial District Court for the County of Humboldt and the judge thereof to review an order of the judge. Order annulled.

This is an original proceeding in certiorari to review an order of the Sixth judicial district court of the state of Nevada, in and for the county of Humboldt, the Honorable Edward A Ducker, district judge thereof, presiding, directing a survey of the boundaries and underground workings of the Charleston and West Virginia lode mining claims, the property of the petitioner herein.

The facts, briefly stated, that raise the questions of law presented in this proceeding, are as follows: One H. E. Orr on the 19th day of December, 1910, filed in the Sixth judicial district court of the state of Nevada, in and for Humboldt county, his affidavit and application, in which he alleged, among other things, that he holds a contract for the working of the Charleston No. 1, West Virginia No. 1, and West Virginia Fraction lode mining claims in the National mining district, Humboldt county, Nev., and describing the same, and that the petitioner herein owns the Charleston and West Virginia lode mining claims, in said mining district and describing the same, and that the petitioner herein is in possession thereof, that the said claims of the applicant, H E. Orr, and the said claims of the petitioner herein, are in the main contiguous; that the said H. E. Orr has reason to believe, and does believe, that the petitioner herein is working beyond its lines on the strike of the Charleston vein, and into the claims of the said applicant, mentioned above; that there was not at the time said application and affidavit were filed, or at any time hitherto, a suit pending in the said district or any court between the said H. E. Orr and the petitioner herein; that on the said 19th day of December, 1910, the Honorable Edward A. Ducker, judge of the said court, entered an order on said affidavit and application, requiring the petitioner herein to appear in said court on the 29th day of December, 1910, and show cause why the order for survey prayed for in the said affidavit and application should not be made; that on the said 29th day of December, 1910, the petitioner herein appeared in said court, and objected to said court hearing said matter or making said order of survey, for the reason and on the ground that the said court had no jurisdiction to hear the same or make said order in the absence of a pending suit between the said parties in the said court; that such objection was by said court overruled, and that certain affidavits were then filed therein by the petitioner herein and said court proceeded to hear the said application of the said H. E. Orr; that on the 21st day of January, 1911, the said court, through its said judge, made an order on said affidavit and application, as prayed for therein, among other things, appointing four surveyers to survey the surface boundaries of the said property of the petitioner herein, and all the underground workings thereof. The order for the survey in question is based upon the provisions of section 3 of an act of the Legislature of the Territory of Nevada, entitled "An act for the protection of mines and mining claims," approved December 17, 1862, the material portions of which act read as follows:

"Section 1. Any person or persons, company or corporation, being the owner or owners of, or in the possession under any lease or contract for the working of any mine or mines within the state of Nevada, shall have the right to institute and maintain an action, as provided by law, for the recovery of any damages that may accrue by reason of the manner in which any mine or mines have been or are being worked and managed by any person or persons, company or corporation, who may be the owner or owners, or in possession of and working such mine or mines under a lease or contract, and to prevent the continuance of working and managing such mine or mines in such manner as to hinder, injure, or by reason of tunnels, shafts, drifts or excavations, the mode of using, or the character and size of the timbers used, or in any wise endangering the safety of any mine or mines adjacent or adjoining thereto. And any such owner of, or in the possession of any mine or mining claim, who shall enter upon or into, in any manner, any mine or mining claim, the property of another, and mine, extract, excavate or carry away any valuable mineral therefrom, shall be liable to the owner or owners of any such mine or mines trespassed upon in twice the amount of the gross value of all such mineral mined, extracted, excavated or carried away, to be ascertained by an average assay of the excavated material or the ledge from which it is taken." (As amended, Stats. 1891, p. 37).

"Sec. 3. Any person or persons named in the first two sections of this act, shall have the right to apply for and obtain from any district court, or the judge thereof, within this territory, an order or survey in the following manner: An application shall be made by filing the affidavit of the person making the application, which affidavit shall state, as near as can be described, the location of the mine or mines of the parties complained of, and as far as known, the names of such parties; also, the location of the mine or mines of the parties making such application, and that he has reason to believe, and does believe, that the said parties complained of, their agent, or employés, are or have been trespassing upon the mine or mines of the party complaining, or are working their mine in such manner as to damage or endanger the property of the affiant. Upon the filing of the affidavit as aforesaid, the court or judge shall cause a notice to be given to the party complained of, or the agent thereof, which notice shall state the time, place, and before whom the application will be heard, and shall cite the party to appear in not less than five or more than ten days from the date thereof, to show cause why an order of survey should not be granted; and upon good cause shown, the court or judge shall grant such order, directed to some competent surveyor or surveyors, or to some competent mechanics, or miners, or both, as the case may be, who shall proceed to make the necessary examination as directed by the court, and report the result and conclusions to the court, which report shall be filed with the clerk of said court. 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, by reason of a trespass or damage done or threatened prior to such survey or examination having been made, and in that case, such costs shall be taxed against the defendant as other costs in the suit. The parties obtaining such survey shall be liable for any unnecessary injury done to the property in the making of such survey." Comp. Laws, §§ 250, 252.

L. G. Campbell, for petitioner. Curler & Martinson and Rufus C. Thayer, for respondents.

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 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 P. 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 S.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 P. 570, 69 P. 103, that this section only applied in cases in which the parties seeking a survey had an interest in the property sought to be...