State ex rel. Anaconda Copper-Min. Co. v. Dist. Court of Second Judicial Dist. of Silver Bow Cnty.

• Citation: 25 Mont. 504,25 Mont. 572
• Parties: STATE ex rel. ANACONDA COPPER-MIN. CO. et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. OF SILVER BOW COUNTY et al.
• Decision Date: 01 August 1901
• Court: United States State Supreme Court of Montana

25 Mont. 572

25 Mont. 504

STATE ex rel. ANACONDA COPPER-MIN. CO. et al.

v.DISTRICT COURT OF SECOND JUDICIAL DIST. OF SILVER BOW COUNTY et al.

Supreme Court of Montana.

Aug. 1, 1901.

Application by the state, on the relation of the Anaconda Copper-Mining Company and another, for a writ of supervisory control directing the judge of the district court of the Second judicial district of Silver Bow county and another to reverse an order issued in proceedings therein. Writ issued.

W. W. Dixon, A. J. Shores, D. Gay Stivers, C. F. Kelly, and J. K. Macdonald, for relators. Toole & Bach, McHatton & Cotter, J. M. Denny, and Cullen, Day & Cullen, for respondents.

BRANTLY, C. J.

On December 20, 1899, one Burdette O'Connor brought an action in the district court of Silver Bow county against the Anaconda Copper-Mining Company and the Washoe Copper Company, corporations, the relators herein, alleging that he was the owner of the Copper Trust lode claim, situate in Silver Bow county, and that the defendants had theretofore trespassed upon his rights therein by entering within its boundaries, and extracting and carrying away ores therefrom to the value of $2,000,000, to his damage in that amount. Under a separate cause of action incidental relief was sought by way of injunction. The cause is still pending in the district court, the issues therein not having been made up at the time the present controversy arose. On March 26, 1901, for the purpose of obtaining evidence to aid him in the trial of said cause, the said O'Connor filed therein a petition asking the court for an order permitting him to inspect and survey all the underground workings in the Anaconda, St. Lawrence, Never Sweat, Rob Roy, Grant, Grant Extension, Parrott, Lot 45 C, and the Cuerpo Bazzo lode claim, and also in the Leggatt and Foster placer claim, all of which the complaint alleges are in possession of defendants, or one of them, and through which defendants had entered upon the ore bodies belonging to the Copper Trust, and committed the trespasses complained of. The situation of the ore bodies in controversy, as shown by the evidence submitted to the court at the hearing, and the respective claims of the contending parties, will be readily understood from the subjoined diagram:

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The exterior boundaries of the Copper Trust lode are indicated by the heavy lines. This claim overlies the Smoke Stack lode, and most of the surface of the St. Lawrence. It will be noted that all of the claims mentioned, both the Copper Trust and those belonging to the relators, have parallel end lines. All of the claims belonging to relators are held by patents issued at various times up to and including November 2, 1892, when the patent to the Cuerpo Bazzo claim was issued. It will also be noted that some of the boundary lines of the Smoke Stack claim, as originally located, were laid upon and over the surface included within the lines of the Mountain View and Fairmount, to the north. The patent to the former excludes the conflicting surface. It is admitted by the parties that all of the surface to the south and southwest of the Smoke Stack claim is covered by the patents of relators. The Copper Trust is an unpatented claim. It was located on April 30, 1899, by virtue of an alleged discovery made on that date in the small triangle, then vacant, which is indicated by the letters A, B, 10 feet in width at the base and extending east between the lines of the Johnstown and Mountain View to its apex, a distance of 75 feet. The only other ground embraced within the limits of the Copper Trust not covered by the relators' patents is a small triangle at the point C, between the east end line of the Mountain View and a claim known as the Sullivan, lying immediately to the east. It does not appear whether there is any apex within the exterior boundaries of the triangle last mentioned. The contention made by O'Connor was and is that the vein thus discovered in the first triangle mentioned dips to the south at an angle of about 70 degrees, and passes on its strike through the base of the triangle into the Smoke Stack claim, thence across its south side line into the St. Lawrence, and thence into the Anaconda claim across the west end line of the former at the point D, about 150 feet north of the intersection of this line with the east end line of the latter at the point G. The course of it, under this contention, is indicated approximately by the position of the letters B, A, E, D. O'Connor further contends that under the Copper Trust location he is entitled not only to the surface within his boundaries not covered by the relators' patents, but also to all portions of the lead having their apex therein, as well as to those parts of it which, though they have no apex within his surface, are so situated with reference to the end lines of relators' claims that the rélator may not assert title to them by virtue of their extralateral rights. In other words, it is asserted that the relators have no extralateral rights upon this vein, either through the Anaconda or the St. Lawrence, south of the intersection of the end lines of these claims at G, and within the triangular portion of the earth included between the vertical planes passing downward through these lines extended in their own direction indefinitely towards the south. He contends, therefore, that, inasmuch as the relators, in making their locations, did not so lay their lines with reference to the strike of the vein that they could follow it on its dip into this portion of the earth by virtue of their extralateral rights, they failed to appropriate it at all; that it was thus left to be appropriated by any other claimant; and that it belongs to the plaintiff under his location. The position of the relators is that, though they do not have title to the ores in the ground in question by virtue of extralateral rights through the St. Lawrence and the Anaconda, they nevertheless own them, as against O'Connor, at least, by virtue of their common-law rights to the surface and everything beneath, because neither O'Connor nor any one else owns any part of the apex of the vein, which is so situated that extralateral rights through such portion may be asserted to anything beneath the surface owned by them. Therefore, they say, O'Connor has shown no right to any part of the ores in controversy such as to authorize the court to grant an order permitting him to make the inspection and survey sought. Upon the facts presented, the court overruled the contention of the relators, and granted the order as prayed. Under it O'Connor was granted the right to enter into any or all the underground workings in all the claims mentioned belonging to the relators to the south and west of the Smoke Stack claim for the period of 40 days; to employ six engineers and assistants to conduct the work of survey and inspection; and to demand, at reasonable times, of the relators, that he and his said engineers and assistants be lowered into the mines and hoisted therefrom to the surface whenever he and they should require the same to be done. The relators, by a verified petition setting forth all the proceedings, including the pleadings in the cause, and all the evidence submitted by the parties, and alleging that O'Connor had not brought his action or made his application to the district court in good faith, applied to this court for relief, asking that this court issue a writ, under its constitutional powers of supervisory control over the inferior courts of the state, directing the district court and its judge to set aside and vacate the order, and to deny the application for an inspection and survey.

The theory of the relators is that upon the facts the district court abused its discretion, and acted arbitrarily, and in plain violation of the legal rights of the relators, in granting the order, and that they are without redress by any other means known to the law. Under an order to show cause, issued by this court, the respondents appeared by filing an answer denying the charges of bad faith on the part of O'Connor, and also a motion to dismiss the application on several grounds. At the hearing three propositions were urged as conclusive reasons why this court should not interfere, namely: First, because, under our constitution, the power of supervisory control lodged in this court is not self-executing, and the legislative branch of the state government is alone vested with the power to prescribe regulations and limitations under which it may be exercised; second, because the legislature has done so by adopting the only writs allowed by the constitution, except in appellate matters, and because this court is limited to the use of them as thus defined; and, third, because, if, under our constitution, the powers of this court can possibly extend the operation of these writs, or any of them, beyond the limits prescribed by law, no such grave emergency exists in this case as would justify it in thus using any of them. From an analysis of these propositions it appears that two, and only two, questions are presented for decision, namely: Was the action of the district court in granting the order erroneous? and can this court afford relief, and, if so, what is the proper remedy? We shall consider these in their order, and, incidentally, also the further question whether, if the order is found to have been erroneous, the circumstances present such a case as will justify this court in using any remedy which it may deem available.

Sections 1314 and 1315 of the Code of Civil Procedure, under which the order was made, provide:

“Sec. 1314. The court in which an action is pending for the recovery of real property or mining claims, or for damages for an injury, or to quiet title or to determine adverse claims thereto, or a judge thereof, may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to...