author: MR. JUSTICE PIGOTT

text:
    MULLINS, Appellant, v. BUTTE HARDWARE CO., Appellant; NICKEL et al., RESPONDENTS.
    (No. 1,332.)
    (Submitted May 13, 1901.
    Decided August 1, 1901.)

      Mines and Minerals — Surface Rights — Location—Occupancy— Tenants in Common — Partition, — Deeds — Registration — ■ Notice — Evidence — Burden of Proof — Bono■ Fide Purchasers.

    1. Where, prior to the location of a quartz mining claim, the surface was occupied by different persons, who agreed that one should locate for all, and that, after patent issued, conveyances should be made, vesting in each full title to the surface occupied by him, but the conveyances were in fact never made, the agreement and continued occupation after the patent issued did not constitute an oral partition, as the location of such claim confers on the locator the right to the exclusive enjoyment of all the Surface ground.
    2. Prior to the location of a quartz mining claim the occupants of the surface, had but a naked possessory right, and after the location by one of them for all, under an agreement to convey to each the surface occupied, the right was but an equity to hold such person as trustee, and the agreement and continued occupation could not amount to an oral partition.
    3. Tenants in common hold their lands by unity of possession, and each has the right to enter upon, occupy and use the whole or any part of the common property.
    4. In so far as persons other than the tenants themselves are concerned, the actual occupancy of one tenant in common is the rightful possession of all the owners, and if a tile under which they might hold is of record and is consistent with the occupancy, the possession must be referred to the record and will not be constructive notice of any other title.
    5. The person securing the patent having executed deeds to each of the occupants for an undivided interest in the mine, but not referring to any surface interest as distinguished from the interest in the whole claim, the continued occupation of the separate portions of the surface, with payment of taxes, and the making of improvements thereon, was not inconsistent with the record title, and gave no notice to subsequent purchasers or incumbrancers that the occupant claimed any certain divided interest; and Civil Code, Sec. 502, relating to notice, had no application.
    <>. If the burden was on subsequent purchasers to show that they purchased interests in a mining claim for a valuable consideration, and without notice of the occupant’s equitable unrecorded title to certain surface rights, such burden was discharged by the introduction of the deeds under which the purchasers held, setting forth a valuable consideration.
    7. Where a grantee of a mine, with notice of an outstanding equity, conveys to one without notice, and for a valuable consideration, such purchaser is protected.
    8. The record title to a mine held by the occupants of the surface was of undivided interests, without reference to any claim for separate and distinct surface right, and C. one of such owners! conveyed an undivided interest lo M. by deed recorded in 1880. M. conve3r2d to H. by deed recorded in 1882. H. conveyed to D. by deed recorded in 1889. In 1885 the same owner C. conveyed another undivided interest to N. by a deed purporting also to convey a distinct surface right thereon. Held, that the recorded deeds to- M. and H. were sufficient to protect D. and his grantees from a claim that they had notice of the claim to a distinct portion of the surface.
    O. The occupancy of the lot by N., as his grantor’s lessee, for a year and a half before his purchase, and his continued occupancy, was not notice of the separate claim to surface rights.
    10. Even if M. and H. were chargeable with notice of N.’s claim, the title of 1). and his grantees was superior.

      Appeal from District Court, Silver Boiu County; William Clancy, Judge.

    Proceedings by Patrick Mullins against the Butte Hardware Company and C. H. Nickel and others for the partition of a mining claim. Prom a judgment and from orders denying the motion for a new trial, plaintiff and defendant the Butte Hardware Company appeal.
    Reversed.

      Mr. L. P. Forestall, for Plaintiff and Appellant.

      Messrs. McBride & McBride, for Butte Hardware Company, Defendant and Appellant.

      Mr. G. W. Stapleton, Mr. John W. Cotter, and Mr. Charles B. Leonard, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Mullins, the plaintiff, and the Butte Hardware Company, a corporation, one of the defendants, have appealed from a judgment and from orders denying motions for a new trial in an action for the partition of the Yellow Jack quartz lode mining claim.

On May 13, 1891, the claim, which is now within the corporate limits of the city of Butte, was located by one Cummings. "When the location was made and for some time theretofore, Cummings, one Bowen, one Moss, one Hamilton and perhaps others, were occupying parts of the surface ground, each having a dwelling house or other visible evidence of possession upon the part occupied by him. The principal purpose of making the location was to obtain title to the surface of the claim in order thereby to protect the occupants in their holdings and secure to them in severalty the ownership of the land used by them respectively. With this object chiefly in view the occupants agreed among themselves that Cummings should locate the claim for the benefit of all, that each would contribute his proportionate share of the expenses incident to procuring title, and that when patent issued the proper conveyances would be made, the one to the other, in order to vest in each full title to tire surface ground occupied by him, and also to vest in him an undivided interest in the minerals in the same proportion as his surface holding bore to the entire surface. In compliance with the agreement the claim was located by Cummings. The receiver’s receipt was issued on December 30, 1884, and recorded December 3, 1887. On December 21, 1893, the patent was issued to him and three others (including one Schwab), who had succeeded to the interests of certain of the occupants. The patent was duly recorded on January 17, 1894. The expenses were paid proportionátely by those interested and the agreement fully performed except as to the making of the deeds conveying the surface rights in severalty to the respective occupants, Cummings delivering deeds of conveyances whereby the undivided interests of the respective persons in the mining claim were transferred to them in the proportions theretofore agreed upon, and the legal title which Cummings should acquire by patent was assured to them according to their several undivided equitable interests. All the deeds were duly recorded, the last on October 1, 1883. None of these deeds to the original occupants described or referred to any surface-ground interest as distinguished from undivided interests in the whole claim, nor did it in any way attempt to describe an interest in severalty. In 1885 Cummings made a deed to the defendant. Nickel which, in addition to an undivided one-sixteenth interest in the Yellow Jack claim, purports to convey a parcel of land 50 by 248 feet in area which had been occupied by Cummings; but, as will be seen, this is not important in so far as the rights of the appellants are involved.

Intermediate the location of 1819 and the issuance of patent, as well as subsequently,'sundry deeds, mortages, and other instruments were executed by the different owners to whom Cummings had, prior to 1884, conveyed undivided interests, in most of which the property conveyed or affected was described as undivided interests in the Yellow Jack lode claim, no reference being- made to surface rights as distinguished or as held separate from the mineral interests. During all of this period, extending from a date anterior to the location down to the time when this action was begun, most of the respective occupants of the surface of the claim at the time of its location, and their successors in title, remained in open, visible, and notorious possession of, and paid taxes upon, the parts of the surface originally occupied and which they had agreed to convey after patent so that each might own in severalty. Some of the occupants and their grantees — notably Bowen, McDermott, and Nickel — erected permanent and valuable buildings. After 1885 there were several meetings had' for the purpose of carrying out the agreement made among the original occupants of the several parcels of the surface ground, but owing to the nonattendance of one or more of the owners nothing further was ever done. The superintendent of the Butte Hardware Company attended some of these meetings. Mullins, is not shown to have had notice or knowledg'e of the attempts to consummate the original agreement.

In the consideration of these appeals we shall endeavor to confine ourselves to the points made by counsel. We feel justified under the circumstances of the case in the inference that any question not presented by counsel is waived or its solution deemed unnecessary. So viewing the case, the plaintiff’s chain of record title may be stated as follows: Deed dated June V, 1880, by Cummings, the locator, conveying to Moss an undivided one-half interest in the claim; mortgage dated January. 23, 1882, by Moss to one Hanser, conveying the same undivided interest (and purporting to convey also a piece of ground in area 67 by 120 feet) ; sheriff’s deed consequent upon sale under foreclosure of the mortgage dated July 10, 1883; deed dated November 29, 1889, by Hauser to one Davis, of an undivided half interest, (subject to a prior deed of November 2, 1885, from Hauser to one Raymond purporting to convey the lot just mentioned) ; and deed made in 1895 by Davis to' the plaintiff conveying all his interest (thirty undivided sixty-fourths) in the Yellow Jack lode claim. The record title of the Butte Hardware Company, so far as it is necessary to state it, stands thus: On June 18, 1880, Cummings conveyed to one Schwab an undivided one-fourth interest in the claim; on May 5, 1884, Schwab conveyed an undivided one-eighth interest to the Butte Hardware Company. The record titles of the respondents, the Bowen heirs, and McDermott, and Fitschen stand thus: Deed by Cummings conveying to Bowen one undivided eighth interest in the Yellow Jack lode claim, made and placed of record October 1, 1883; deed by Bowen conveying to McDermott one undivided sixteenth interest in the claim, made November 14 and placed of record November 15, 1883; deed by Bowen to Hauser and Fitschen purporting to convey to them an undivided one-eighth interest in the claim, made and recorded D&cember 29, 1884; agreement by Hauser, Fitschen, Cummings, and Schwab (grantees named in the patent) with Bowen, to convey to him when patent should be issued an undivided one-eighth interest in the claim, made December 29, 1884, recorded July 11, 1885; through mesne conveyances the respondents named are clothed with record title to certain undivided interests in the claim.

The title of Moss to an undivided thirty-sixty-fourths interest in the claim having been thus vested in the plaintiff, he brought this action for the partition of the Yellow Jack lode claim, including the entire property conveyed by the patent irrespective of any supposed surface rights other than those incident to; following, and covered by, the title to the claim as located and patented. The answering defendants, acquiescing’ in the right of the plaintiff as their co-tenant to a partition of the claim in so far as the minerals therein are concerned, insist, with the exception of the Butte Hardware Company, upon their exclusive ownership in severalty of the parts of the surface occupied by them and their predecessors in title, asserting that the facts made Cummings a trustee for them as to the minerals and as to' the surface not actually occupied, constituted an oral partition of the occupied surface ground binding upon all of the original occupants, and created equitable titles as to the surface of which all persons had notice by reason of such occupation. The district court sustained the contention of the defendants, other than the Butte Hardware Company, and held that an oral partition had been made of the surface of the Yellow Jack lode claim, and that the surface ground claimed by the Bowen heirs, by McDermott, and by Nickel and others, had been orally partitioned and set apart to them.

We proceed to the consideration of every point made or suggested by counsel for the respondents:

1. The respondents contend that there was an oral partition of the surface ground among the several occupants, and that this has been shown by the agreement which was made in 1879, followed by the exclusive possession of the occupants and their successors and the payment by each of them'of the taxes levied upon the land embraced within his holding, and by subsequent acquiescence on the part of the equitable owners in the supposed agreement for an oral partition. As to acquiescence, suffice it to say that the evidence does not tend to prove that Mullins or the Butte Hardware Company acquiesced in or ratified the former agreement. With respect to the agreement of 1879 and the continued occupancy thereunder of the persons who were then in possession, we are of the opinion that these facts did not constitute an oral partition. The location of a quartz mining claim confers upon the locator the right to the exclusive enjoyment of all the surface ground as well as of all the minerals within the lines .of the claim (we are not considering any question of apex or extralateral rights),- — in other words, the location of a mining claim candes with it the right to the exclusive possession of the surface ground within the boundaries of the location. The location is a claim to the exclusive possession of the surface ground as well as to1 the veins and deposits beneath the surface. (Talbott v. King, 6 Mont. 16, 9 Pac. 434.) Title to the Yellow Jack quartz lode mining claim embraced, of course, title to the minerals and the surface ground within its exterior boundaries. That title was obtained from the United States government, the initial step having been taken by Cummings when he duly located the claim. In locating it, however, Cummings was unquestionably acting on behalf of himself and others under an agreement which made him a trustee and created a trust enforceable in equity, the validity of which has been too often recognized and adjudicated to. permit its serious discussion as a novel or doubtful proposition. As among the original parties to the agreement and as to all persons who- have acquired interests with knowledge or notice, of the equitable title of the beneficiaries under that agreement, the title of the original occupants and their successors is beyond reasonable controversy, and hence we do not concur in the statement of counsel that the principal issue is whether or not there was an oral partition of the surface of the Yellow Jack lode claim, but rather regard the question of notice as the more important.

If the original occupants of the claim could in equity properly be treated as tenants in common of the entire claim or of its surface, or some part thereof, the question of their rights as among themselves could be easily solved by applying the principle recognized in Mathes v. Nissler, 11 Montana, 177, 42 Pacific Reporter, 163. But they cannot be so regarded. Between the time of the inception of their occupancy and the time when the claim was located, none of them had any title, or any right except that which attends the naked possessor; after the location by Cummings, their trustee, they acquired equitable rights gauged by the increasing and ripening title of their trustee; but from, the mere germinal stage of Cummings’ record title to the day of trial there was- never, as among the parties themselves, any joint interest or tenancy in common as to the occupied surface resulting from any of the relations existing among them. Whatever rights they had at any time as to the surface were, as among, themselves, in severalty at all times. After the location and prior to the conveyances by Cummings to them, they were, of course, as among themselves, tenants in common of the minerals beneath the surface and of the unoccupied surface, but that common interest was also an equitable one and arose out of and resulted from the same oral trust contract which created their rights in severalty as to the surface of the claim or such parts of it as were covered by the contract between the occupants. If, therefore, they had any equitable interests as to the mining claim before receiving conveyances from Cummings, the actual locator, their rights at that time were because of, and' co-extensive with, the trust agreement, and their rights in severalty as to> the surface were as well defined and as well founded as were the rights which they similarly and simultaneously were acquiring to the minerals; hence, if the locator of the mining claim represented himself and others and became trustee for all in whose behalf he was acting, and by reason of the relationship- and their contribution of the expenses, his "associates, though unnamed in the location notice, had equitable rights which he was obliged to1 recognize and which were enforceable in equity, so that his subsequent-transfers to them were not mere gratuities but were in recognition of contract rights and in fulfillment of contract obligations, then, for the same reason which made the transfers of the mineral rights obligatory, these persons were equally entitled to specific and separate estates in severalty in the surface of the claim under and by virtue of the trust agreement which was the sole source of all their rights. Their rights in the mineral interests were not greater than their rights to separate parts of the surface; both rested upon the same equitable foundation, and each was of equal rank with the other, — they were twin equities, born at tbe same time, neither having any greater age or legal vitalit-y.than the other. Both of these distinct and definite equitable estates were created at the same time, and by the same mutual co-operative agreement, yet all through this litigation they have been discussed and treated as of vitally different degrees of validity, one being unanimously admitted to be a vested right, and the other to be a mere expectancy dependent upon conformity to the technical principles regulating or applicable to the rights of tenants in common, whereas the proof discloses that if any of these persons, other than the locator, ever had interests in the property, it was only by virtue of an agreement which particularly defined those interests to be in severalty in respect of the surface, as plainly and particularly as it defined those interests to be in common with respect to the minerals beneath the surface. The logical conclusion therefore is that, although Cummings and the persons to whom he granted undivided interests became, except as among themselves, tenants in common of the entire claim, no tenancy in common as to the surface of the claim ever existed inter sese; and hence all dispute in respect of the sufficiency as among the occupants of a supposed oral partition is necessarily eliminated from the case. Prior to the conveyances by Cummings to them, the original occupants were, in equity, tenants in common of the Yellow Jack lode claim, save as to' the parts of the surface occupied by them, and as to these each was in equity the owner of the surface possessed by him. Such, as among themselves, were their relations to the claim.

The second question is whether the persons whose equitable estates in severalty as to parts of the surface were so well founded as among themselves, have preserved those rights in so far as the plaintiff and the Butte Hardware Company are concerned.

2. As among the parties to the agreement of 1879, there were, it is true, two distinct ownerships. There was ownership' in the several lots and there was ownership of undivided interests in the minerals underlying the surface. But these ownerships were equitable and existed only among the parties to the agreement and as to those who' became purchasers or incumbrancers with knowledge or notice of the facts. The respondents contend that the visible, open, notorious, exclusive and continued occupation in severalty by them and their predecessors in interest of parts of the surface ground was constructive notice of their equitable rights and titles. The law is well settled that the actual, visible, notorious, continuous, exclusive and unequivocal possession of “a definite tract of land by one rightfully in possession or holding under a valid title is a constructive notice to subsequent purchasers and incumbrancers of whatever estate or interest in the land is held by the occupant, equivalent in its extent and effects tot the notice given by the recording or registration of his title.” (2 Pomeroy’s Equity Jurisprudence, Sec. 615.) Such possession is evidence of some right or title in the occupant and is sufficient to put a subsequent purchaser or incumbrancer on inquiry as to the rights of the person then in possession. But this general rule is not always applicable. It has its exceptions. One of the exceptions is stated in Section 232 of Webb on Becord of Title thus: “Where a person occupies premises, and the record shows a conveyance under which he would he entitled to the possession, in such case his possession will be referred to' the record title, and a subsequent purchaser will not be charged by it with notice of any other undisclosed title or equity which the occupant may have. The possession is a matter tending to excite inquiry, but the fact that the occupant has placed upon the public records written evidence of his right* with the .terms of which his possession is consistent, arrests inquiry at that point, and reasonably informs the purchaser that he may rest upon the knowledge thus obtained. Thus, a wife was entitled to an interest in land by inheritance. A partition was had with other heirs, but the deed made thereupon was to both husband and wife, vesting the title of her portion in them as tenants in common; and as against lien creditors of the husband her possession was held notice of only an undivided half interest. So, where a mortgagee is in possession under a recorded mortgage, a purchaser from the mortgagor will not by such possession be charged with notice of an unrecorded conveyance of the equity of redemption from the mortgagor to the mortgagee, unless by the terms of the recorded instrument the mortgagor was entitled to possession at the time of the last purchase.” Mr. Wade, in his treatise on the Law of Notice, says: “Circumstances may arise where one having title to real estate, and being in possession under his title, may nevertheless be prevented from relying upon such possession as notice to subsequent parties. As, for example, where, in addition to the title under which the proprietor occupies the premises, and which either rests in parol or is unrecorded, the record also shows a title under which he would be entitled toi possession. In such a case his possession will be referred to his record title in preference to any other, and the purchaser will not be affected with notice of any undisclosed title or interest which the possessor may have. Thus, where a mortgagee is in possession under a recorded mortgage, a purchaser from the mortgagor will not be, by such possession, charged with notice of an unrecorded conveyance of the equity of redemption from the mortgagor to the mortgagee, unless by the terms of the recorded instrument the mortgagor was entitled to possession at the time of the last purchase.” (Section 291.) “This exception is obviously just and reasonable. When a party places upon record an instrument, the provisions of which are consistent with his possession of the premises, while the circumstance of his being in possession undoubtedly has a tendency to excite inquiry in the minds of those contemplating a purchase, the fact that he has placed the evidence of his right to occupy upon record, where it is accessible to the whole world, arrests inquiry at that point, and plainly informs the purchaser that he may rest securely up°n the knowledge already obtained.” (Section 298.) In Section 616 of Pomeroy’s Equity Jurisprudence the doctrine is thus stated: “The decisions may be regarded as agreeing upon the conclusion, which also seems to be in perfect harmony with sound principle, that where a title under which, the occupant holds has been put on record, and his possession is consistent with what thus appears of record, it shall not be constructive notice of any additional or different title or interest to a purchaser who has relied upon the record, and has had no actual notice beyond what is thereby disclosed.” Among the cases which support this doctrine, and we find none to the contrary, are the following: Smith v. Yule, 31 California, 180, 89 Am. Dec. 167; Allday v. Whitaker, 66 Texas, 669, 1 S. W. 794; Wrede v. Cloud, 52 Iowa, 371, 3 N. W. 400; Holland v. Brown, 140 New York, 348, 35 N. E. 577; Rogers v. Hussey, 36 Iowa, 664; May v. Sturdivant, 75 Iowa, 116, 39 N. W. 221, 9 Am. St. Rep. 463; Brown v. Volkening, 64 New York, 83; Griffin v. Hall, 111 Alabama, 601, 20 South. 485; Plumer v. Robertson, 6 Sergeant & Rawle, 184; McMechan v. Griffing, 3 Pickering, 149, 15 Am. Dec. 198; Kendall v. Lawrence, 22 Pickering, 542; Bush v. Golden, 17 Connecticut, 594, 602; Commonwealth v. Lakeman, 4 Cushing, 597; and 16 Am. & Eng. Enc. Law (1st Ed.) 803, and cases there cited. The purchaser is presumed to have relied upon the record. (Hull v. Diehl, 21 Montana, 71, 76, 52 Pac. 782.) ,

After the conveyances by Cummings, the original occupants and their successors in interest were, according to the title shown by the record, tenants in common of the entire Yellow Jack lode claim. Tenants in common hold their land? by unity of possession, and each has the right to enter upon, occupy and use the whole or any part of the common property. The possession of one is presumed to be for the benefit, and the maintenance of the rights, of all the co-tenants. (Gunter v. Laffan, 7 Cal. 589; Brittini v. Handy, 20 Ark. 404, 73 Am. Dec. 497; Freem. Co.-Ten., Secs. 166, 248; Carpentier v. Webster, 27 Cal. 544.) The occupancy of each Avas, therefore, consistent with the record title. We observe, in passing, that the provisions of Section 502 of the Civil Code are Avithout pertinency to the question under discussion — that of notice. In so far at least as persons other than the tenants themselves are concerned, the actual occupancy of one tenant in common is the rightful possession of all the owners, and if a title under which they might hold is of record and is consistent with the occupancy, the possession must be referred to the record and will not be constructive notice of any other title. We cannot concur therefore in the argument of counsel to' the effect that the possession by Bowen and his heirs and by McDermott and others of the portions of the surface which had been set apart to them by the agreement of 1879, the making of improvements thereon, the payment of taxes, and the open exercise of rights of exclusive ownership, were notice of the titles, other than those appearing of record, under which they were occupying the property. All that was done was consistent with the rights of tenants in common. The possession was not unequivocal and must be referred to the recorded deeds of conveyance creating or evidencing a right to enter and remain in occupancy of the land. We are of the opinion, therefore, that the occupancy and the making of improvements did not serve to charge the appellants with constructive notice. The suggestion that the records of the county treasurer’s office showing that each of several occupants paid taxes on the parcel of ground in his possession were sufficient to put the appellants upon inquiry has already been considered, but may be further answered by saying that such records are not, of themselves, constructive notice to purchasers or incumbrancers of the fact that certain persons have paid taxes. We are not advised of any statute which declares the record of the payment of taxes to have that effect.

3. It is contended, however, that the burden of showing that they purchased for a valuable consideration and without notice, rested upon the appellants, and that unless such proof was made the respondents must prevail. Sections 258, 259, and 260 of the Eifth Division of the Compiled Statutes of 1887, provide, in substance, that every conveyance and every instrument setting forth any agreement to convey any real estate shall, from the time it is filed for record, impart notice to all persons of its contents, and subsequent purchasers and mortgagees shall be deemed to purchase and take with notice j and that every such conveyanace which shall not be recorded shall be deemed void as against any subsequent purchaser in good faith and for a valuable consideration whose own conveyance shall be first recorded. Sections 1640, 1641, and 1644 of the Civil Code declare that every conveyance of real property is, from the time of its filing for record, constructive notice of the contents thereof to subsequent purchasers and mortgagees; that it is void as against any subsequent purchaser or incumbrancer in good faith and for a valuable consideration whose conveyance is first recorded, and that an unrecorded instrument is valid as between the parties and those who have notice thereof.

Oral agreements affecting the title to real property, being incapable of record, are certainly not within the express language of these sections. They are, however, within those equitable principles under which the rights of innocent purchasers are enforced as against secret equities, whether arising from an oral contract or an uncertified instrument, neither of which is susceptible of record, or from an instrument certified but not recorded; and while such equities are not within the very words of the registry act, they are within its plain purpose and spirit, law and equity going hand in hand. Manifestly, “so far as the object of requiring registration is to protect purchasers in good faith, and give simplicity and certainty to the title to real estate, it must be frustrated whenever secret trusts or equities, whether arising by deed or without it, are allowed to prevail against conveyances duly recorded.” (2 Leading Cases in Equity, p. 139.) The right created by a prior unrecorded instrument, even though it purports to convey and does transfer, as between the parties to it, the legal title, should, as to purchasers without notice, be regarded “as tantamount to an equitable interest, which may, therefore, be cut off by a subsequent purchaser or incumbrancer who is in all respects bona f,deJ and who has also obtained the first record” (2 Pomeroy’s Equity Jurisprudence^ Sec. 758), when the statute requires prior recordation. There is no reason why equities not arising by a written instrument should occupy a better position and be more tenderly regarded than equitable interests which rest upon writings.

In the case at bar each appellant claims title to an undivided interest in the land by a deed of conveyance purporting to have been made for a valuable consideration. In Hull v. Diehl, 21 Montana, 71, 52 Pacific Reporter, 782, the purchaser of the later though first recorded mortgages proved that he paid a valuable consideration, but there was no other evidence tending’ to establish that he was without knowledge or actual notice of the prior mortgage1. In that case the court said: “Whether the burden of proving the payment of a valuable consideration is upon the person claiming under a conveyance recorded before the record of a prior conveyance is not presented for decision in this case, and we express no opinion. We are, however, satisfied that the good faith of the purchaser -will sufficiently appear by proof of the record of conveyances showing title in his grantor at the time of the purchase, upon which record he had the right to rely, and is presumed to have relied. If he had actual notice of the prior conveyance, this is a fact affirmative in its nature, and it is therefore more reasonable to require it to be shown by the party claiming under the prior unrecorded deed than to call upon the purchaser to prove the negative.” Nor is it necessary in the present case to determine whether the burden of proving title payment of a valuable consideration is cast by the law upon the subsequent purchaser holding under a deed first recorded, for, as we have stated, the deeds to the appellants recited the payment of valuable considerations, and the doctrine is clearly established upon principle and by the weight of authority “that one claiming title to land by a deed to him purporting to be made for a valuable consideration is presumed to be a purchaser in good faith, without notice of prior unrecorded deeds, until the contrary is shown; and that the burden of proof to show notice and want of good faith is on the party attacking the deed.” (Anthony v. Wheeler, 130 Ill. 128, 22 N. E. 494, 17 Am. St. Rep. 288, note.) The respondents sought to- establish rights to the Yellow Jack lode claim in hostility to the title of record; they were therefore bound to prove notice to the holders of the titles of record of the facts upon which their supposed rights were founded. If the burden devolved upon the appellants to show that they paid value, the burden was prima facie discharged when the recorded deeds under which they held were introduced. In addition to those already referred to; we select the following cases as supporting the doctrine that the recital in the deed raises a rebut-table presumption of the payment of a valuable consideration, and that the burden of proof to show notice of the earlier-made instrument not first recorded or of the oral contract, rests upon the party claiming rights under the latter: Hiller v. Jones, 66 Mississippi, 636, 6 South. 465; Wood v. Chapin, 13 New York, 509, 67 Am. Dec. 62; Ryder v. Rush, 102 Illinois, 338; Hoyt v. Jones, 31 Wisconsin, 389 ; Smith v. Yule, supra; Bush v. Golden, supra; Roll v. Rea, 50 New Jersey Law, 264, 12 Atl. 905; Brown v. Valkening, supra; Hendy v. Smith (Sup.), 2 New York Supplement, 535; Beman v. Douglas (Sup.), 37 New York Supplement, 859; Doody v. Hollwedel (Sup.), 48 New York Supplement, 93; Holland v. Brown, supra; and Gratz v. Land & River Improvement Co., 82 Federal Reporter, 387, 27 C. C. A. 305, 53 H. S. App. 499, 40 L. R. A. 393. The principle governing the decision in Thamling v. Duffy, 14 Montana, 567, 37 Pac. 363, 43 Am. St. Rep. 658, is inapplicable.

4. It is next contended that the Butte Hardware Company, through its superintendent, had either knowledge or actual notice of the agreement of 1879 and hence was not a purchaser in good faith. The company received its deed to' an undivided one-eighth interest on May 5, 1884, and the deed was recorded on the same day. The evidence tends to: show that the superintendent had actual notice of the equitable rights of the occupants after 1885, but does not tend to show that he had it prior thereto; so there is nothing to indicate that the company (as-sinning that notice to the superintendent was notitce to it) had actual notice until after it purchased. True, Schwab, its immediate grantor to whom Cummings had conveyed and who is named in the patent as a grantee, had actual notice at the time he acquired his interest in the claim; but if one who has notice of an outstanding equity conveys, mediately or immediately, to a purchaser without notice who pays a valuable consideration, such purchaser is entitled to1 protection. This is an ancient and established doctrine in chancery courts. The rule prevails• also under the recording statutes; and the company having literally complied therewith, perfected its title as against the outstanding unrecorded equities.

5. It is also suggested that both Mullins and the company were charged with constructive notice of Nickel’s rights by the record of his deed which conveyed an undivided interest in the whole claim and purported to convey also a lot thereon. This deed was made on March 16, 1885, and was recorded on June 16, 1885. As to the company the record of the deed could not be constructive notice, for its deed from Schwab was delivered and recorded in 1884. Nor was it constructive notice to Mullins. Cummings conveyed an undivided interest to Moss, and the deed therefor was made and placed of record in 1880; Moss conveyed to Hauser by deed made and recorded in 1882; Hauser conveyed to Davis by deed made in 1889 and recorded in 1890; and Davis conveyed to Mullins by recorded deed dated in 1895. Although the deeds from Hauser to Davis and Davis to Mullins were executed after the record of the deed from Cummings to Nickel, the deed of Cummings to Moss and the deed of Moss to Hauser were duly recorded in 1880 and 1882, respectively; and long before the deed from Cummings to Nickel was made. In so far as constructive notice is concerned, the recordation of the deeds from Cummings to Moss and Moss to Hauser was sufficient to afford protection to Mullins as against Nickel’s subsequently recorded deed from Cummings, despite the fact that the mesne conveyances under which Mullins asserts title were made and recorded after the conveyance by Cummings to Nickel bad been recorded. Tbe deed from Cummings to Moss, as well as tbe deed from Moss to Hauser, is Mullins’ conveyance within tbe meaning of tbe statute, and it was duly recorded before Cummings conveyed to Nickel. Tbe statute was satisfied. There is much conflict upon tbis question, but we are satisfied witb tbe rule announced in Hull v. Diehl, supra, and in Hooker v. Pierce, 2 Hill, 650. Nor does it seem that tbe deed to Nickel is in the chain of Mullins’ title.

6. Tbe further suggestion is made that the appellants were charged witb constructive notice of Nickel’s, rights by his possession of the parcel of ground described in this deed from Cummings. We think not. When, the lode claim was located, Cummings was occupying the lot. Cummings conveyed to Nickel on March 16, 1885. Tbe evidence shows that when tbe deed was made, Nickel was living on tbe lot and bad been “there about a year before” as lessee of Cummings. Tbis falls far short of being sufficient evidence to warrant the inference that Nickel was in possession at tbe time Schwab conveyed to. the company or that he was occupying otherwise than as a mere tenant, and there is nothing to show that be was in possession under a contract of sale from the person who had theretofore by recorded deeds conveyed to the grantor of tbe company, and to others, undivided interests in tbe land whereon is situate the lot to which Nickel asserts title. Nor was Mullins charged witb constructive notice of Nickel’s occupancy. Hndivided interests were conveyed by Cummings to Moss and by Moss to' Hauser, and tbe deeds therefor were recorded long before Nickel went into possession. True, Nickel was in possession under bis deed from Cummings when Hauser .conveyed to Davis and when Davis conveyed to Mullins; but tbe evidence fails to show that Nickel bad any right or interest in the property either when Cummings conveyed to Moss or Moss to Hauser. But even if Nickel, as between himself and Cummings and as to Moss, had a prior right to or interest in the land, Mullins’ title ‘ is the better. A., tbe bolder of tbe legal title of record, conveys or contracts to convey land in his possession to X.; A. then conveys the same land to B. (a purchaser with notice), who puts his deed on record; B. conveys to C., who puts his deed •on record; X. then puts his contract or deed on record and for the first time enters into possession; while X. is so the possessor, O. conveys to D. who purchases for a valuable consideration and without notice of the rights of X., unless notice be charged by his possession or recorded deed. Is either the recorded deed to X. or his possession constructive notice to D. ? We think not. While the possession of X. at the time C. conveyed to D. would charge D. with constructive notice, equivalent in effect to the record of a deed from O. to X., of whatever estate or interest X. had under or from C. (the record owner), yet neither the recorded deed from A. (whose title of record had passed to C.) to X. nor the occupancy by X. could be constructive notice to D. of any title or right of X. as against A. or B. So far as D. is concerned, X. has no title, legal or equitable, and therefore no rights of which constructive notice could be given.

The orders and the judgment appealed from are reversed and the cause is remanded with direction to grant a new trial.

Reversed and remanded.


source: Caselaw Access Project

author:
MR. JUSTICE MILBURN, Mr. Chief Justice Brantly:
      Mr. Justice Pigott:

license: Public Domain

text:
    SWEENEY, Respondent, v. MONTANA CENTRAL RAILWAY COMPANY, Appellant.
    (No. 1,326.)
    (Submitted April 18, 1901.
    Decided August 1, 1901.)

      Trespass — Diverting Water Gourse — Release of Damages— Repairing Injury — Evidence—Appeal—Former Opinion— Questions Decided — Ex Parte Order — Instructions—Briefs.
    1. Defendant railway company entered on plaintiff’s mining claim, and diverted the waters of a creek which crossed the claim. Afterwards plaintiff conveyed to defendant a 40-foot strip across his claim, and across the old bed of the creek, and released “all claim for any damages that may arise or be caused to the land adjoining such railroad, on either side thereof, in consequence of the use of said premises for its said road.” Held, that such conveyance did not release plaintiff’s claim for damages for the trespass previously committed in diverting the creek.
    2. In an action for trespass and diverting a stream crossing plaintiff’s land, defendant should be permitted to show what it would cost to restore the stream to its former channel, as the measure of damages would be the expense of such restoration and such other damages as could not be avoided.
    3. Where, in the opinion on a former appeal, the court said .that they would treat only those points which appellant had taken up on his oral argument, and closed with the remark that “we have considered and treated all the errors assigned which we consider material,” such decision should not be deemed as determining any questions in the case other than those discussed in the opinion.
    4. In an action for injuries caused by diversion of a stream, evidence that plaintiff, by a small expense in riprapping the' bank of the new channel, could have avoided or diminished the damages to his property, was admissible, it being his duty to use reasonable care to save it from injury.
    5. One is not, as a rule, expected to enter upon a third party’s premises to save his own property from increased injury resulting from the wrong-act of another; but it is not unreasonable to expect an injured party to go upon a vacant, uninelosed and unoccupied mining claim to prevent serious damage, in a great emergency.
    C. Where a railroad company commenced condemnation proceedings to acquire a right of way across plaintiff’s land, and procured an ex parte order permitting it to take possession of the land without payment, and staying all actions and proceedings against it, such order was void, and any entry on plaintiff’s land thereunder was a trespass.
    7. It is not error for the court to refuse to give a requested instruction which contains a statement of an alleged fact which it is within the province of the jury to find or not, according as they may or may not believe the witnesses upon the point.
    8. An assigned error which is not argued in the briefs will not be considered.
    9. Where, in an action to recover for permanent injury to land occasioned by a trespass, a witness is questioned as to the value of adjoining land, and a map isi used, and land inquired about is pointed out to the jury by counsel, the receipt of such, testimony is not error, since, as the jury saw the map at the time counsel was pointing out the ground, the supreme court cannot say that the jury did not understand the situation; though this method of introducing evidence is not to be approved.
    10. In an action for trespass and permanent injury to land, it was error to receive testimony of plaintiff and another as to what was offered for a strip across the land for a railroad, where there was no evidence that the one making the offer was agent of the railroad company, or had any authority to make the offer.
    11. Where land has been permanently injured by a trespass, witnesses familiar with it, and with the uses to which it could be put, may give their opinion of its market value, in view of such uses, though it may not have been previously used for such purposes.
    Me. Justice Pigott dissenting in part.

      Appeal from, District Court, Cascade County; J. B. Leslie, Judge.

      Action by Patrick Sweeney against tbe Montana Central . Railway Company. From a judgment for plaintiff and from an order denying a new trial defendant appeals.
    Reversed.
    Statement ox tiie Case.
    This cause is on appeal from tbe order of tbe district court denying a motion for a new trial and from the judgment for plaintiff.
    Tbe action is for damages resulting from trespass. Plaintiff, in, 1891, was tbe owner, by virtue of a mineral location, of a tract of land called tbe “Nellie L. Claim,” at Neibart, Cascade county. In that year tbe defendant company started condemnation proceedings in tbe district court toi condemn a strip of ground eighty feet wide across tbe claim. Without paying or tendering to tbe plaintiff or any one any money or other consideration, and without paying into court anything at all, an order was obtained by tbe company admitting it to possession of tbe property sought to be condemned, and providing, among other things, that during tbe x>endency and until tbe conclusion of tbe proceedings all actions and proceedings against tbe plaintiff on account thereof “be, and tbe same are hereby, stayed.”
    Belt creek at the time x>assed through tbe claim, as well as through other pieces of property belonging to other persons. Tbe company, under tbe order mentioned, went upon tbe plaintiff’s land, and excavated a new channel for tbe creek, and by means of a dam built in tbe creek, on what was known as tbe “Graham & Hollowbush Claim,” a short distance from and above plaintiff’s land, diverted tbe waters into tbe new channel. This work was completed about November 1, 1891. Plaintiff entered the claim at the United States land office on December 28, 1891. The village of Neibart was incorporated on December 4, 1891. On the 2d day of January, 1892, plaintiff conveyed his claim to one Condon. It is understood between the parties that this deed was for tbe purpose of procuring a better price for tlie eighty-foot strip from the commissioners in the condemnation proceeding, as plaintiff’s relations with one of them were not as friendly as were those of Condon, the deed being-in fact in trust for the plaintiff. On March 24, 1892, Condon conveyed, acting for plaintiff and with his advice and consent-, a forty-foot strip of the said claim to the railway company, in fee, to be used as a way for railroad purposes, such strip embracing only a very small corner of the eighty-foot strip. After the deed was made^ the company abandoned the condemnation proceeding’s, and notified jdaintiff of such abandonment. After the delivery of the deed for the forty-foot strip, Condon reconveyed the remainder of the land i» plaintiff.
    Plaintiff contends that the order made permitting defendant to enter the land was void, and that Hie entry, the digging of the new channel on his land, and the turning of the water into it, were a trespass, and operated to materially lessen the market value of the property. Defendant, in the brief of former counsel, claims that, though the act of changing tlie course of the. stream was originally a trespass, noi action can be maintained for damages on account thereof, by reason of the fact, as counsel says, that the plaintiff, through his trustee, Condon, ratified and adopted defendant’s acts, took the benefit thereof, and received from defendant compensation on account thereof, by selling and conveying to defendant the forty-foot strip, extending, as it does, across the old channel, without reserving a right to return the creek to the old bed, and, further, that the plaintiff isbythe deed estoppedfromclaimingdamages. Thedeed contained the following: “And said first party hereby releases to said second party any and all claim for any damages that' may arise or be caused to the land adjoining such railroad, on either side thereof, in consequence of the use of said premises for its said road.”
    This case was heard and decided upon a former appeal, being reversed, a statement of the case being made in the opinion. (19 Mont. 163, 47 Pae. 791.)
    The principal questions arising upon the present appeal relate to the correctness of certain rulings of the court upon the admissibility of evidence, the refusal of the court, to grant a nonsuit or direct a verdict for the defendant, and upon certain instructions given and others refused.
    Present counsel for defendant, in oral argument and in his brief, very ably contends that the order was not void, for that the owner waived the right to exact prepayment for damages, and- that the complaint does not state a cause of action in trespass quare clausum fregit, and is fatally defective, for the reason that it does not show forth that defendant’s entry was wrongful. He claims that defendant owner, in the condemnation proceedings waived his constitutional right to demand compensation before the company took possession under the order of the court, by failing to make seasonable demand for it, and by his appearing and answering in the condemnation proceedings.
    The order of the court, permitting the company to enter upon the land, was made ex parte, and without notice.

      Mr. A. J. Shores and Mr. I. Parker Veazey, for Appellant.

      Mr. Thomas E. Brady, Mr. M. S. Gunn, Mr. John B. Clayberg and Mr. N. W. McConnell, for Respondent.
   MR. JUSTICE MILBURN,

after stating the case, delivered the opinion of the Court.

The appellant makes twenty-one assignments of error. We shall consider only those depended upon in the argument of .appellant’s counsel.

During the trial, at the close of the testimony for the plaintiff, the defendant moved the court “that the action be dismissed on the ground that by the sale and conveyance to the defendant of the 40-foot strip of ground for a right of way across the Nellie L. lode claim, shown by the evidence hr have been sold and conveyed, the plaintiff is estopped from making any claim for damages done, if any were sustained, by the change in the course of the stream, and that the execution and delivery of such conveyance operated to destroy any right of action for the previous trespass, if any such existed.” The motion was denied and defendant excepted.

Did the making and delivery of this deed, or the waiver of damages expressed therein, estop the plaintiff to the extent claimed by defendant? We think not. More than one-half of the argument in appellant’s brief is upon the subject of the said conveyance and its effect upon plaintiff’s case. The argument is made with that close and able reasoning which characterizes counsel, but, in our opinion, it proceeds upon a theory which does not apply to the facts oib the law of this case. Counsel cites Roberts v. Roberts, 55 N. Y. 275 ; Lampman v. Milks, 21 N. Y. 506; McCarty v. Railroad Co., 31 Minn. 228, 17 N. W. 616 ; Radke v. Railway Co., 41 Minn. 350, 43 N. W. 6; McDonald v. Railway Co., 101 Cal. 206, 35 Pac. 643. We do not find any of these in point. In Roberts v. Roberts it was the owner of the land whoi had permanently changed its condition by effecting an advantage to one part and burdening another, and the court held that upon a severance the respective owners held the land according to such changed conditions, there being, of course, no damage ever done by any one to the said owner. In reason and justice, and upon old and very respectable precedents, which have always been cited with approbation (see opinion in Lampman v. Milks, supra), the court was correct. The difference between the case at bar and that of McGarty v. Railway Go. is that the latter was a suit for damages for obstructing the flow of water by a railway embankment for the building and maintenance of which plaintiff had sold a certain strip of land, — the case at bar,, one for completed trespass committed on another part of the land, a considerable time before the conveyance of the strip- across the old channel. In Radke v. Railway Go. the court held that no-right of action lay for damages subsequently caused by a bad culvert in the railway embankment built upon land entered upon by the railway company without right, but subsequently conveyed by tlie owner to the company with the bad culvert then in said embankment. In McDonald v. Railway Co. the owner by deed conveyed to the company a right of way for the track “as the same is' now located, constructed and operated,” and expressly waived all damages by reason of the construction and operation of the same, and acknowledged “payment for damages for any injury caused by the construction of said railroad in front of his property” on a certain street; the suit being for damages resulting from an overflow of plaintiff’s property caused by a certain bridge which choked the channel of a stream of water, the bridge being the same that was on the right of way at the time of the conveyance to the railway company.

The suit in the case at bar is for damages recoverable for trespass upon a relatively large tract of land, part of which was afterwards conveyed to the defendant, the trespass being complete as of November 1, 1891, before the making and delivery of the deed of conveyance for the part. The deed to the defendant company must be considered exactly as if it had been to a third party, a stranger to the trespass. It conveyed part of a tract alleged by the plaintiff to be then damaged land. The chose in action in trespass was not conveyed any more than if the deed had been made to a stranger. The waiver of damages set forth in the instrument of conveyance is obviously and manifestly for such damages as might come from the use of- the strip as a way for the road. If it was intended to say that the company was released from all claim for damages for trespass resulting from the unlawful entry upon the property of plaintiff when it went upon the premises and dug a large ditch upon another part of the land, it would have been easy to have said so ; such a thing would not ordinarily be pertinent to such a deed, and cannot be read into' it by us.

We are of the opinion that just as the deed, if made to a stranger, would have estopped the owner of the land from turning the stream again across the ceded strip, so, also, it would do after conveyance to the railway company; but the right to sue accrued at the time of the completed trespass, November 1, 1891, before the sale of the strip of damaged land. The question, “Did the deed estop claim for damages accruing when the trespass was complete?” is a far different question from, “Did the deed operate as a waiver of the right to return the stream to the old bed, and thus to mitigate damages ?”

There is nothing in the evidence to show that a larger price was demanded or received by the owner, or offered by the company, in consideration of the strip of land being at the time free from the burden of Belt creek, or to show that this particular part of the damaged tract of land was worth more or less because of the removal of the creek to the new channel.

The deed estopped plaintiff from returning the stream to the old bed after the delivery of the deed, but did not operate as a waiver of proper damages resulting from the completed trespass.

The defendant complains of the court’s refusal to admit evidence as to the probable cost of returning the stream to its old channel, and restoring the premises to substantially the condition in which they were prior to the trespass. Notwithstanding the earnest and full argument of counsel for defendant in his brief, contending that the deed estopped plaintiff from claiming any damages, measured by the cost of such restoration of the premises, oa* at all, he forcibly argues that evidence of such cost should have gone to the jury. We agree with counsel that this evidence should noit have been excluded. Upon the former appeal (19 Mont. 163, 47 Pac. 791) it was held that the refusal of the court below to- allow evidence to> show that plaintiff, by an expense of $100 in riprapping the bank of the new channel between the stream and the bluff on the land in question, could have avoided or diminished the damages to= the mining claim, was error. To hold, in the face of this declaration, that plaintiff was estopped by deed from claiming damages, would be to reverse the judgment of this court as to a conclusion which is part of the established law of this case. The opinion in the case on the former appeal supports fully the proposition that, in cases of tort, such as the one at bar, it is not only tbe privilege, but tlie duty, of tbe injured party to use reasonable care, skill and diligence, adapted toi the occasion, to save his property from being injured; otherwise, it would not have held the evidence as to the cost of riprapping as admissible.

Mr. Justice Brewer, in Kansas Pac. Railway Co. v. Mihlman, 17 Kan. 224, collating and considering the numerous authorities supporting him, says: “The proposition is sound that, while a wrongdoer should compensate for all the injury naturally and fairly resulting from his wrong, yet the party upon Avhom the Avrong is done should take reasonable care of his property, and make reasonable effort to prevent any extension of the injury. If a party can, Avith reasonable effort, prevent an injury from spreading, he ought to do it. It is no more than simple justice to- the party Avho has caused the injury, especially if that party has acted Avithout malice, and without a thought of causing injury.” In Loker v. Damon, 17 Pick. 284, cited by our court in the former appeal of this cause, the court, through the learned Chief Justice SliaAV, said: “We think the jury Avere rightly instructed that, as the trespass consisted in removing a feAV rods of fence, the proper measure of damage Avas the cost of repairing it, and not the loss of a subsequent year’s crop, arising from the want of such fence;” and in the case before Justice Brewer, swpra, he held for the court that the question ought to have been submitted to the jury Avhether Mihlman could not, Avith reasonable effort and small expense, have filled up .the ditches, repaired the Avrong done by the company, and prevented any destruction of his crops, or depreciation of the value of his real estate, and that the jury should have been instructed that, if this were so, the measure of damages avouH not be the value of the crops destroyed, but the cost of filling the ditches and placing the land in the condition it Avas before the trespass, together Avith the value of the direct injury done by the trespass.

It Avas held on the former appeal of this case that the trespass Avas a completed trespass, and not a continuous one; that “the sole liability of the defendant company was determined and fixed by the trespass which wrought the difference in the market value of the land before and after its commission, in November, 1891.” What was the position in which plaintiff found himself after the defendant committed the trespass ? If his land was injured, what was tire measure of the damages? If he could reasonably and at moderate expense have riprapped the stream, if this would have obviated the damage"or prevented increase of the injury, or if he could have, by expenditure of a sum reasonably within his means and warranted by the circumstances, returned the stream to its old bed, and filled up the excavation, if this would have avoided or materially diminished the damages, then one or tire other of these methods he should have adopted, and the expense-would be the measure, with such accrued damages as could not be avoided by the means adopted. If, for good and sufficient reason, he could not adopt and execute either method, then, the measure of damages being the difference between the value of the land before and just after the complete trespass, he would, in estimating the value of the land after the trespass, with other things, consider the nature of the stream, the size and condition of the ditch, and the probability of overflow of his land. Thus we may fully understand the holding of the court on the other appeal that it was not error to admit evidence on the first trial as to the overflows and wasting away of the land after the date of the trespass complained of, for the purpose of showing the difference in the market value of the land before and after the trespass, but that it was error not to limit the evidence to that purpose, as the defendant requested the court below to do.

We are of the opinion that the court should have permitted the jury to consider, among other circumstances appearing in evidence, what the cost would have been to avoid the damages, in whole or in part. If such efforts to avoid increased damages were such as the plaintiff could reasonably undertake and perform, and such as would have avoided the overflow, then no evidence, under proper instructions, as to overflows would have been considered by the jury in measuring the damages. If, after weighing the evidence, the jury, under proper instructions, considered that the plaintiff could not have reasonably undertaken any method to protect or restore the land or prevent the floods, then the evidence as to the floods, if the result of the trespass, would be proper toi consider for the purpose of finding the difference in the market value of the land before and after the trespass.

Respondent’s counsel maintains in his brief that the question of the alleged error of the' court in excluding the proffered evidence as to the cost of returning the stream into its old channel and filling up of the new, is not before this court for determination, for the reason that the question was decided on the former appeal. Judge Pemberton, then chief justice, in the opinion, without especially referring to- the point which we are now referring to, said: “We have considered and treated all the errors assigned which we consider material.” This remark must be weighed in connection with the declaration in the first part of the opinion to the effect that the opinion would treat only of those points which appellant had taken up in his oral argument. We cannot, therefore, believe that, upon fair construction of the remarks of the chief justice depended upon by respondent’s counsel, they should be considered as meaning anything more than that it was not necessary, for the determination of the case, to treat of other points.

Counsel for respondent argues that the plaintiff had the privilege, but that it was not his duty, to do anything to reduce or avoid the damages likely to follow. In support of his contention he refers us to Jarvis v. Railway Co., 26 Mo. App. 253, and from the citation we quote thus much: “The contention is that he [plaintiff] was bound to> go and abate the nuisance created by the defendant, since the law allows a private person to abate a nuisance where it can be done without committing a breach of the peace. [Italics not in the opinion.] Undoubtedly it was the plaintiff’s privilege to abate this nuisance at his own expense; but it does not lie in the mouth of the author of the nuisance to say that he was bound to do it.” A citation is also made from Paddock v. Somes, 102 Mo: 238, 14 S. W. 746, 10 L. R. A. 254, from which we take the following : “It is the duty of every person or public body to prevent a nuisance, and the fact that the person injured could, but does not, prevent damages to his property therefrom, is noi defense either to an action at law or in equity. A party is not bound to expend a dollar or to do any act to secure for himself the exercise or enjoyment of a legal right of which he is deprived by reason of the wrongful acts of another.” Eroni Heaney v. Heaney, 2 Denio, 625, respondent’s counsel cites this sentence: “The injury complained of was voluntary, and, if wrongful, the plaintiffs were under no obligation, legal or moral, to take any steps to mitigate the consequences to the defendants.” He also calls attention to the following from French v. Lumber Co., 145 Mass. 265, 14 N. E. 113: “The court properly refused to rule that plaintiff could recover only for what he had expended in removing the obstructions. It did not appear that it was possible for the plaintiff to have removed them. Certainly he owed no duty to the defendant to remove the logs and sand with which the defendant continued to; obstruct the river.'” He finds, also^ that in White v. Ghapin, 102 Mass. 138, the court held that plaintiff-was not under the necessity of seeking any part of his remedy by going upon the defendant’s land and abating the nuisance caused by obstructions which defendant had there placed in the ditch, but that he had a right to elect his remedy by an action at law.

It is useful to note, in tire case from Denio, in which such broad language is used, that defendants in 1846 cut a vessel loose from the wharf, and that plaintiff, the owner, stood by and watched it go to wreck against Staten Island, when, before it had floated far, he might have overtaken, it with a boat and brought it back, at a moderate expense; and, further, that plaintiff made no effort to recover or save the vessel. It seems to us as unnecessary in this enlightened century to say that the damage to the boat was the direct and natural result of the revengeful spirit of the owner of the boat, and not of the act of the defendant.

A logical deduction to be drawn from, and entirely within the scope and meaning of, the citations is this: If A. go into B.’s house, and remove therefrom very valuable and perishable property, which will be destroyed by exposure to the weather, and deposit the same upon the vacant and uninclosed desert claim of C., then, although A. has the privilege to go upon the land.of C. to recover his property, if he can do so without a breach of the peace, he is under no obligation to do so, although he can with only the expenditure of sixty seconds of time, and by a walk of ten yards, pick up1 the imperiled property, and put it back into the house. AVould any court uphold a verdict of, say, $1,000 damages for the loss of a valuable painting destroyed by storm under such circumstances, although A. maliciously removed the picture and exposed it with intent to' destroy it? AYe think not. A fortiori, if the act was done in a fit of frivolity, without intention to destroy the property. Is it not a question for the jury to determine what reason required of the owner to do ? AVhatever reason requires a man to' do. should be done, if the law does not forbid. What is just and what reason demands must be one’s duty under the law, unless the law of the land forbids.

As expressing our views, and as opposed to those cited by respondent’s counsel, we quote the following — one or more of them being from courts of states from which one or more of the authorities of respondent are taken: “Aggravation of injuries by subsequent negligent conduct on the part of plaintiff may be considered by the jury in mitigation of damages.” (Fullerton v. Fordyce, 144 Mo. at page 533, 44 S. W., at page 1056.) “For the direct and consequential damages caused by an injury the party committing it is responsible, but not for remote, speculative and contingent consequences, which he might have easily averted by his own exertions. The law will not reward a man for the indulgence of his malice. If a party sustaining an injury by the act of another can protect himself by a trifling expense, or with reasonable exertions, from the consequences, he fails in social duty if he omits to do so, regardless of the increased amount of damages for which he may intend to hold the other party liable.” (Douglass v. Stephens, 18 Mo., at page 366.) “If a party can, by a trifling expense or by reasonable exertions, avert the damages caused by the wrongful act of another, it is his duty to do so; and, if he fails in performing the full measure of his duty in this regard, he will bo only entitled to recover such damages as were not the result of his negligence or omission.” (Waters v. Brown, 44 Mo., at page 303.) “It is now well settled that one who is injured by another has no right to lie by and suffer damages to accumulate which it is in his power to: prevent. He must use proper diligence to prevent or arrest the effect of the injury. Whatever he voluntarily suffers, which by reasonable exertion he may avoid, he must charge to' his own account.” (State ex rel. Rice v. Powell, 44 Mo., at page 440.) “It is the duty of a party to protect himself from the injurious consequences of the wrongful act of another, if he can do so by ordinary effort and care and at moderate expense.” (Harrison v. Railway Co., 88 Mo., at page 621.) “After’ the wrong was committed, it was certainly the duty of the appellee to avoid the consequences of that wrong, as far as he reasonably could. If by labor, or a reasonable outlay of money, he could have stayed or avoided the consequences of the appellant’s wrong, he should have done so. All consequences resulting from his own willful failure or gross neglect to use timely and reasonable precaution to prevent an extension or increase of the injury should fall upon himself.” (Lawson v. Price, 45 Md., at page 136.) “As it is the duty of a party injured by a breach of contract or tort to make reasonable effort to avoid damages therefrom, such datoages as might by reasonable diligence on his part have been avoided are not to be regarded as the natural and probable result of the defendant’s acts. There can be no recovery, therefore, for damages which might have been prevented by reasonable efforts on the part of the person injured.” (Scherrer v. Baltzer, 84 Ill. App. 128; 8 Am. & Eng. Enc. Law (2d Ed.) p. 605, and numerous cases cited.) See, also, Judge Brewer’s views in Kansas Pac. Railway Co. v. Mihlman, supra; Suth. Dam. (1884) pp. 414-416; and Sedg. Meas. Dam. (1891) Sec. 202.

The defendant offered upon the trial to prove that by an expenditure of $350 the plaintiff could have removed the dam, thus returning the water into the old channel immediately after the trespass, and have filled the excavation made upon his premises, thus restoring the premises to their former condition. It would have been for the jury to determine, in the light of all the facts in the case, whether or not such undertaking and expense would have been reasonable and within the means of the plaintiff. Of course, the plaintiff would not have been called upon to embarrass himself financially or' to- do anything unreasonable or unlawful in the premises. The evidence should have been admitted, and the plaintiff would then have had the opportunity to show, if he desired, that such undertaking on his part was not reasonably within his power or means to accomplish, and, if the jury believed that such was the case, then they would not have been warranted in finding that it was his duty to have taken these steps to1 restore his premises to their former condition and to prevent the increase of damages.

One is not, as a rule, expected to enter or go upon a third party’s premises to save his own property from increased injury resulting from the wrong act of another. If the dam in question was on a vacant, uninclosed and unoccupied mining location, upon which and over which, by a well-known custom in this state, people are permitted to' camp, go, travel and do other things not hurtful to the premises, it would not be unreasonable to expect an injured party to go upón such open land to prevent serious damage, in a great emergency.

The order of the district judge, purporting to' give the railway company authority to enter the lands of the plaintiff, to do as it did do for the purpose of a right of way, was void. It is not necessary for us to go into this at length. The order being void, the entry was a trespass, as is conceded by counsel.

The defendant upon the trial prayed the court to give the following instruction: “I further instruct you that after defendant had entered upon the land in question in the month of October, 1891, and dug a trench across the same; and changed the course of Belt creek, the plaintiff has the right to have the stream returned to its original channel, and could have compelled a return of the same. In considering the extent to which the land was depreciated in value, if at all, by this change; it is proper matter for your consideration that the change was not necessarily permanent in character, and that the plaintiff was under no obligation to let the stream remain in the new channel, although he might, if he saw fit, elect to let it stay there.” In the light of what we have said herein, we hold that the refusal to- give this instruction was error.

The court also declined to give the following instruction, asked for by the defendant: “The point at which the water was diverted from the original channel and the dam so constructed was not upon the land owned by plaintiff, but the same was vacant, unoccupied, uninclosed land; and it would not have-been a trespass, in law, for the plaintiff, after the construction of said dam, for himself to have gone and removed the same, and turned the waters into the old channel of Belt creek, if he considered that his land would be seriously or substantially diminished in value hy permitting the stream to remain in the new channel.” While, under the uncontradicted evidence in the case as to the open and vacant character of the land where the dam was, the granting of the instruction might not, perhaps, have been error, it was not error to refuse to- give it, as it contains a statement of an alleged fact which it was within the province of the jury to- find or not, according as they may or may not have believed the witnesses upon tire point.

The refusal of the court to give defendant’s requested instruction numbered 18 is also assigned as error; but, as the principal point therein, to-wit, tho question of plaintiff’s right to bring and maintain an action against tho persons owning the land where the dam Avas located, to compel them to permit the restoration of the creek to the old bed, is not argued in the briefs, such alleged error Avill not be considered by us.

We come uoav to a consideration of the assignments of error as to admission of evidence of value. Plaintiff in his own behalf testified: “I understand that those lots Avere held at $450 beloAV.” Objection Avas made to the numerous interrogatories upon which the answer was based, the ground of objection being that the questions Avere immaterial and incompetent, and that no foundation Avas laid showing that the witness had any knowledge of the lots, and that there Avas no evidence that any lots Avere “platted there.” Upon the court’s inquiry, “In the vicinity of the land in question?” counsel for plaintiff ansAvered, “Yes, sir,” Avhereupon the, court overruled the objection. There Avas no objection made to the interjection of the inquiry or answer. Examination of the record shoAvs that the vice of pointing out to the jury places on the map, and asking questions about “property that is hereabout numbered 11 or 10, immediately west of it” on the map, which map Avas seen by the jury, Avas indulged in, fixing the locality of the lots said to be Avorth “$450 below.” The testimony had a tendency to fix some value to the' land, and, as the jury saw the map at the time that counsel Avas pointing out the ground in question, Ave cannot say that they did not understand the situation. While not approving this manner1 of introducing evidence, AAre cannot say that the court erred in letting it go to the jury for what it Avas, worth.

The court erred in overruling defendant’s objection to the introduction of the evidence of plaintiff and of Avitness Condon as to what had been offered them, respectively, by one Scott, said by the Avitnesses to he the right of way agent of defendant railway company, for the eighty-foot strip' Avhich Ayas sought to be condemned. It appears that Scott offered them, respectively, $4,000 and $3,500 for the said strip. There is nothing to shoAV that the right of way agent had' any authority from any one to make suck offer, or that the company ever beard of tbe offer. It is certain that tbe company never adopted tbe offer or carried it out, for it abandoned tbe condemnation proceedings. Tbe single case cited by counsel in support of tbe admission of tbe evidence is one in which one or more of tbe owners expressly told another person to “goi ahead” and make a certain sale, thus establishing agency. This is a far different case from tbe one at bar as to agency.

Tbe alleged error of tbe court in overruling defendant’s objection to tbe question put to Condon as-toi instructions given him by Sweeney with respect to making tbe deed, and as to Sweeney having told Condon not to waive any damages, need not be considered, for tbe reason that there is nothing in tbe deed as to waiver of tbe damages sued for, and, further, this matter of waiver has’ been sufficiently covered herein.

Defendant objected to any evidence as to tbe value of tbe property for townsite purposes, on tbe ground that tbe property could not be considered as platted property or platted into: lots, for tbe reason that it was not in fact platted, and that Madison street was not in fact extended through it at that time, and that tbe property was not capable of being platted and sold, owing to tbe fact that plaintiff did not then have title to. it, as appears from tbe evidence, and that “plaintiff’s right was only then a location notice upon which a receiver’s receipt bad not yet been issued,” and that it was not tbe proper method of arriving at tbe value of tbe land to consider it in tbe light suggested by this question. Tbe court overruled tbe objection. It does not appear that it was necessary for tbe city to extend Madison street in order that tbe land could be platted for townsite purposes. Why could not tbe owner have dedicated a street;?

Witnesses who knew the property, and were familiar with tbe uses to which it could be put, could give their opinions as to tbe market value — and respondent was properly allowed to introduce evidence to prove tbe value of tbe land for town-lot purposes. He bad tbe right to make such proof-whether be bad platted it or built upon it or not. Tbe question was not to what use the land had been put. The owner has a right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it could be used, whether or not he so used it. (Montana Ry. Co. v. Warren, 6 Mont, at page 281, 12 Pac. 611, and cases cited; Northern Pac. & Montana Railway Co. v. Forbis, 15 Mont. 152, 18 Am. St. Rep. 692, 39 Pac. 511.) Mining claims are real estate. (Butte Hardware Co. v. Frank, 25 Mont. 211, 65 Pac. 1.) From the evidence it appears that the federal government patented the land to plaintiff after an entry made in December, 1891, location having been made on January 1, 1891. The jury probably took into consideration the fact that plaintiff had not “proven up,” but that he had “earned” the land, and had a right to 3 patent, as appears in evidence from the fact that the government issued the patent-^ which could not lawfully have issued if the owner had not earned it at least as early as November 1, 1891. Besides, he was the owner of the mining claim,— real estate, “property,” in every sense of the word, — against all the world, while he was in possession, complying with the law, and performing the conditions precedent to the obtaining of his patent. He had the right to quit, but no one had the right to trespass .upon or interfere with his possession, use or enjoyment of the premises, except by due process of law.

Having considered carefully the reasoning of present counsel for appellant in his brief bearing upon the question as to> whether or not plaintiff waived his constitutional rights, and that the complaint in this cause does not state a cause of action, we must agree, without further remarks, with the former counsel for respondent, that the complaint does state a cause of action, and that the order was void, as we have hereinbefore stated.

The errors herein declared were prejudicial to defendant, and the order denying the motion for a new trial and the judgment must be reversed.

Reversed and remanded.

Mr. Chief Justice Brantly:

I concur.

Mr. Justice Pigott:

I am inclined to- tbe opinion that • evidence of an offer to buy, made in good faith, is admissible in favor of the owner of property as tending to prove its value. .But the testimony of the plaintiff and Condon touching supposed offers of purchase by the right of way agent was, I think, both hearsay and immaterial. The agent was not acting for -himself but assumed to speak for the defendant; there was nothing tending to show authority in him to make any offer in defendant’s behalf, and hence it did not appear that either offer was bona, fide. Not being satisfied that the error in admitting it was without prejudice; I concur in the reversal.

I dissent from the holding that the plaintiff owed to the defendant the legal duty to mitigate damages or lessen the amount thereof by abating or removing the nuisance existing on the land of another.

As to the sufficiency of the complaint: No attack by demurrer or otherwise was made ivpon it in the court below, where the case was tried upon the theory that a cause of action was stated; the opening brief of counsel for the defendant confessed its sufficiency and expressly admitted that the order under which the defendant entered upon plaintiff’s property was void, and not until the oral argument in this court did the defendant suggest that the order was only voidable. Under these circumstances I am of the opinion that the allegations of the complaint and the evidence should be liberally construed and every reasonable intendment indulged in favor of the plaintiff. So regarding the complaint and the evidence, I think the former states a cause of action and the latter supports ij.


author: Per Curiam.

text:
    No. 1,321.
    ROBINSON, Administratrix, Respondent, v. KLEINSCHMIDT, Appellant.

      Appeal from District Court, Deer Lodge County.

    On motion to dismiss appeal.
    Decided February 4, 1901.

      Mr. W. H. Trippet, Messrs. Napton & Napton and Mr. T. J. Walsh, for Appellant.
   Per Curiam.

Upon motion of the appellant tbis cause is dismissed.


text:
    No. 1,261.
    YELVERTON, Respondent, v. SAWYER et al., Appellants.

      Appeal from District Court, Deer Lodge County.

    Motion to dismiss appeal submitted February 7, 1901.
    Decided February 7, 1901.

      Mr. C. J. Walsh and Messrs. McConnell & McConnell, for Appellants. Mr. J. R. Boarman, for Respondent,
   Per Curiam.

Upon application of the appellants herein this appeal is dismissed at the cost of the appellants; and respondent’s motion to assess damages for an appeal taken without merit is denied.


text:
    No. 1,405.
    FERRIS, Appellant, v. MATTHEWS, Respondent.

      Appeal from District Court, Cascade County.

    Decided February 11, 1901.

      Mr. J. A. Lar gent, for Appellant.
   Per Curiam.

This appeal is dismissed as per stipulation oh file herein.


author: Per CuRiAM. Per Curiam.

text:
    No. 1,654.
    In re W. W. LIKENS.
    Original proceeding in disbarment.
    Order entered February 12, 1901.
   Per CuRiAM.

Whereas the Chief Justice of this court has received a communication from Honorable William Clancy as Judge of the Second Judicial District, that W. W. Likens, au attorney of this court, who is now residing and practicing law at the city of Butte, in said district, is an ex-convict from the state of Colorado^ and was such at the time he was licensed by this court about one year ago: it is ordered, that said communication be filed with the clerk of this court, and that said clerk be directed to inform the said Clancy that proper action will be taken in the premises upon the filing in this court of charges against the said Likens.

Accusation filed February 21, 1901.

Order to show cause entered February 26, 1901.

Per Curiam.

Accusation having been filed in this court against W. W. Likens, a member of the bar of this state, it is this day ordered that the said W. W. Likens appear before this court on the first day of April, A. D. 1901, at 10 o’clock a. m., and show cause why his name should not be stricken from the Roll Book; and it is further ordered, that a copy of the accusation and of this order be served on the said Likens at least five days before the said first day of April.

[Service of the above order was never made upon the said W. W. Likens, for the reason that, upon the instituting of this proceeding, he departed from the state of Montana to parts unknown.- — -O. T. C.]


text:
    Nos. 1,470 and 1,471.
    WHITCRAFT et al., Appellants, v. HENDRICKS, Respondent.

      Appeal from District Court, Deer Lodge County.

    Motion to dismiss appeals.
    Decided February 15, 1901.

      Mr. Edward Scharnikow and Messrs. Toole, Bach & Toole, for Appellants.
   Per Curiam.

Appellants’ motion to dismiss these appeals is granted, and the said appeals are hereby dismissed at the cost of appellant.


text:
    Nos. 1,645 and 1,646.
    STATE ex rel. BOSTON & MONTANA CONSOL. C. & S. MINING CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, Defendant.
    Alternative writ of mandate issued January 24, 1901. Motion to tax costs submitted February 15, 1901.
    Decided February 16, 1901.

      Messrs. Forbis & Evans, for Relator. Mr. J. M. Denny, for Defendant.
   Per Curiam.

It appearing from the original and supplemental answers made to the alternative writs of mandate heretofore issued herein that the defendant has fully complied with the requirements of said writs in both hearing and determining the matters which it was sought by said writs to have heard and determined, but that no sufficient or any excuse is furnished why said matters were not heard and determined before the said writs were applied for and issued; it is ordered that the writs be discharged at the cost of the defendant.


text:
    No. 1,263.
    KLEINSCHMIDT & BROTHERS, CONSOLIDATED, Respondent, v. LONGMAID, Appellant.

      Appeal from District Court, Lewis and Clarke County.

    Motion to dismiss appeal.
    Decided February 25, 1901.

      Messrs. McConnell & McConnell, for Appellant.
   Per Curiam.

This appeal is dismissed on motion of the appellant.


author: Per Ouriam.

text:
    No. 1,267.
    DONOVAN, Respondent, v. AMMON et al., Appellants.

      Appeal from District Court> Cascade County.

    Motion to dismiss appeal.
    Decided February 27, 1901.

      Mr. Ransom Cooper, for Appellants.
   Per Ouriam.

Upon motion of the respondent herein this appeal is dismissed at the cost of appellants. .

(Mr. Justice Pigott, having been of counsel and being disqualified herein, takes no part in the making of this order.)


text:
    No. 1,609.
    WADSWORTH, Executrix, Respondent, v. SINGER MANUFACTURING CO., Appellant.

      Appeal from District Court, Silver Bota County.

    Motion to dismiss appeal submitted October 17, 1900. Denied October 18, 1900. Motion to vacate and set aside the order heretofore made herein denying the motion to dismiss and for a rehearing of the motion, submitted December 18, 1900. Granted December 24, 1900. Motion to dismiss the appeal submitted January 11, 1901.
    Decided January 11, 1901.
   Per Curiam.

Dismissed upon the ground that the appellant has heen guilty of negligence in failing to file the transcript within the time prescribed by the rules of this court (Mr. Justice Pigott dissenting) ; the charge made by the respondent that the appellant practiced imposition upon the court at the time of the hearing of the original motion is not sustained by the proof.

Mr. L. J. Hamilton and Mr. B. S. Thresher, for Appellant. Messrs. Sinclair & Dygert, for Respondent.


text:
    No. 1,333.
    LAKE, Appellant, v. LAKE, Respondent.

      Appeal from District Court, Silver Bow County.

    Motion to dismiss appeal.
    Decided January 18, 1901.

      Mr. M. D. Leehey, for Appellant.
   Per Curiam.

Upon application of the appellant herein this cause is dismissed at the cost of appellant.


text:
    No. 1,658.
    WETZSTEIN, Respondent, v. BOSTON & MONTANA CONSOL. C. & S. MINING CO., Appellant.

      Appeal from District Court, Silver Bow County.

    Motion to dismiss appeal.
    Decided March 14, 1901.

      Messrs. Forbis & Evans, for Appellant. Messrs. McHatton & Cotter and Mr. James M. Denny, for Respondent,
   Per Curiam.

Appellant’s motion to dismiss this appeal is granted, and the appeal is hereby dismissed at the cost of the appellant.


author: Per Curiam. Per Curiam.

text:
    No. 1,309.
    HAGGIN, Appellant, v. LORENZE et al., Respondents.

      Appeal from District Court, Deer Lodge County.

    Motion to dismiss appeal.
    Order entered March 14, 1901.
    Decided March 16, 1901.

      Mr. G. B. Winston and Mr. W. W. Dixon, for Appellant.
   Per Curiam.

It is ordered that the request for an order dismissing the appeal be not considered, for the reason that no proper motion in that behalf has been filed or made, and for the further reason that the request is not signed or made by counsel of record herein.

(Mr. Chief Justice Brantly, having been of counsel, does not participate in the foregoing order.)

Per Curiam.

Appellant’s motion to dismiss this appeal is granted, and the appeal is hereby dismissed at the cost of the appellant.

(Mr. Chief Justice Brantly, having been of counsel in the court below, does not participate in the foregoing order.)


text:
    No. 1,667.
    STATE ex rel. ANACONDA COPPER MINING CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.
    Original application for writ of supervisory control.
    Decided April 25, 1901.

      Mr. W. W. Dixon, Mr. A. J. Shores and Mr. C. F. Kelly for Relator. Messrs. McHattion & Cotter for Defendants.
   Per Curiam.

It appearing herein from the answer made by Honorable William Clancy, Judge of the Second Judicial District Court, to the order to show cause, heretofore issued herein, that said court has granted to the relator all the relief sought by its application to this court, it is ordered that relator’s application be dismissed at its own cost.

(Mr. Justice Pigott dissents from the part of the foregoing order directing the cost of the application to be paid by relator.)


text:
    No. 1,671.
    WETZSTEIN, Respondent, v. BOSTON & MONTANA CONSOL. C. & S. MINING CO., Appellant.

      Appeal from District Court, Silver Bow County.-

    Application of appellant for an order staying the injunction order appealed from and all proceedings thereunder pending appeal, and motion of respondent to- dismiss the petition of the appellant.
    Decided April 25, 1901.

      Messrs. Forbis & Evans, for Appellant. Messrs. McHatton & Cotter, Messrs. Toole & Bach, Mr. James M. Denny and Mr. Robert B. Smith, for Respondent.
   Per Curiam.

It is ordered that the motion of the respondent be and the same is hereby granted and that the application of the appellant be and is hereby dismissed, upon the ground that the granting of the relief sought by the petition is not necessary or proper to the complete exercise of the appellate jurisdiction of the supreme court.

(Mr. Chief Justice Brantly dissents.)


text:
    No. 1,338.
    WHITE, Appellant, v. KERN, Respondent.

      Appeal from, District Court, Custer County.

    Decided. May 16, 1901.

      Mr. C. B. Nolan, for Appellant.
   Per Curiam.

This cause having been set for hearing this day, and no briefs having heen filed and no one appearing to present the matter orally to the court, the judgment appealed from is affirmed.


text:
    No. 1,629.
    MONTANA ORE PURCHASING CO. et al., Respondents, v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., Appellant.

      Appeal from District Court, Silver Bow County.

    Application by appellant for a writ of supersedeas.

    Decided May 6, 1901.

      Messrs. Forbis & Evans, Mr. William Scallon, Mr. Thos. Patterson and Mr. Wm. H. DeWitt, for Appellant. Messrs. McHatton & Cotter, for Respondents.
   Per Curiam.

Dismissed, for the reason that the application alleges grounds which, if they entitle the appellant to any relief, should be addressed to the district court in the first instance.

Rehearing denied, May 18, 1901.


text:
    No. 1,201.
    In re WILLIAM NEWTON.
    Original proceeding in disbarment.
    Order of disbarment entered January 11, 1898.
    Motion to vacate disbarment order, filed June 27, 1901.
    Motion denied.
   Per Curiam.


text:
    No. 1,691.
    BOE, Appellant, v. McDONALD et al., Respondents.

      Appeal from District Court, Flathead County.

    Motion to dismiss appeal.
    Decided July 15, 1901.

      Messrs. Foote & Pomeroy, for Respondents.
    Motion granted.
   Per Curiam.


text:
    No. 1,682.
    STATE ex rel. ANACONDA COPPER MINING CO. et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
   Original application for a writ of supervisory control. Writ granted August 1, 1901 (see opinion ante, page 501).

On August 3,1901, the court made an addition to the order made herein on August 1, 1901, as follows, to-wit:

“The said writ shall be served by the marshal of this court in the same manner as a summons is served in civil cases, and the judge of the district court shall make return to’ this court within ten days from the date of service thereof showing his action in the premises.”

On August 5, 1901, the court made the following order herein:

“The writ heretofore ordered issued and served herein shall be in the following form, to-wit:

In the Supreme Court op the State op Montana.

The State of Montana ex rel. Anaconda Copper Mining Company, and Washoe Copper Company,

Relators,

vs.

The Second Judicial District Court of the State of Montana, in and for the County of Silver Bow, and Honorable William Clancy, the Judge thereof,

Respondents.. .

Writ op Supervisory Control.

The State of Montana to the Second Judicial District Court, and to the Honorable William Clancy, the Judge thereof,

Greeting:

Whereas, it has been made to appear to' us, upon a full consideration of the matters involved in the application of the above-named relators to this court for a writ of supervisory control, that on the 20th day of May, A. D. 1901, you, the said William Clancy, in that certain cause, numbered 8,315, entitled ‘Burdette O’Connor versus Anaconda Copper Mining Company, and Washoe Copper Company,’ then pending before the said court, issued an order for survey, directing the above-named relators to permit an inspection, examination and survey of all and of each and every of the shafts, cross-cuts, levels, stopes, winzes and underground workings in the Anaconda lode mining claim, United States Lot Number 92, the St. Lawrence lode -mining claim, United States Lot Number 64, the Never Sweat lode mining claim, United States Lot Number 51, tbe Rob Roy lode mining claim, United States Lot Number 147, the Grant lode mining claim, United States Lot Number 119, tbe Grant Extension, United States 'Lot Number 146, tbe Parrot lode mining claim, United States Lot Number 456, and tbe Cuerpo Bazzo lode mining claim, United States Lot Number 198, in Summit Valley Mining District, Silver Bow County, State of Montana; and also all tbe shafts, cross-cuts, drifts, levels, stopes, winzes and underground workings upon and witbin that certain placer claim commonly known and designated as the ‘Leggat & Poster’ placer mining claim, situated' in tbe aforesaid mining district; also an examination, inspection and survey of all tbe veins and ores exposed in tbe said shafts and ■underground workings, giving to plaintiff in said suit tbe right- to so survey and inspect all of tbe above-named mining claims and workings for a period of forty days, by certain persons designated by him; and further commanding tbe above-named relators to furnish to tbe persons so designated by plaintiff, all means of ingress to and egress from said premises; and,

Whereas, it has been made to appear to1 us that tbe above order of inspection and survey, made as aforesaid, was issued under a mistake of law and will, unless vacated and set aside, work gross and irreparable wrong and injustice to tbe relators, there being no -remedy save by means of a writ of supervisory control,

Now, therefore, the case being exigent, we do command you that immediately upon tbe receipt of this writ, you do annul, vacate and set aside tbe said order of inspection and survey, so granted as aforesaid on tbe said 20th day of May, A. D. 1901; and of this writ and what you have done thereunder make due return witbin ten days after tbe service thereof.

Witness, Honorable Theodore Brantly, Chief Justice of tbe Supreme Court of tbe State of Montana, and tbe Seal of tbe Court, this 5th day of August, A. D. 1901.

Henry G. Rickerts,

[Seal] Clerk.”