author: ME, CHIEF JUSTICE BEANTLY, ME. CHIEF JUSTICE BEANTLY Me. Justice MilbubN:

text:
    FINLEN, Appellant, v. HEINZE et al., Respondents.
    (No. 1,824.)
    (Submitted May 20, 1902.
    Decided July 21, 1902.)

      Supreme Gourt — Appellate Jurisdiction — Scope — Legislative Limitation — Final Judgments — Procedure — Interlocutory ' Judgments — Constitutional Law — Failure of Legislature to Prescribe Procedure — Preservation of Subject of Appeal— Injunction — Jurisdiction of Trial Gourt — Pvidence—Void Orders — Estoppel.
    1. under Constitution, Art. VIII, secs. 2, 3, conferring appellate jurisdiction upon the supreme court in all cases at law and in equity, under such limitations and regulations as may be prescribed by law, and giving such court power to issue original writs in aid of such jurisdiction, the power of limitation given the legislature does not extend to the right of appeal from final judgments, or to the power of the court on such appeals, but merely to the time when and within which appeals may be taken, to matters of procedure, and to the extent of relief to be granted on appeals from interlocutory orders.
    2. under Constitution, Art. VIII, Secs. 2, 3, conferring appellate jurisdiction on the supreme court “under such regulations as may be prescribed by law,” if the legislature fails to provide the necessary .appellate procedure, the court may adopt rules for itself in the place thereof.
    3. Constitution, Art'. VIII, Secs. 2, 3, confer appellate jurisdiction on the supreme court under such limitations as may be prescribed by law, with authority to issue original writs in aid of such jurisdiction. Code of Civil Procedure, Sec. 21, authorizes such court to affirm, reverse, or modify any judgment or order appealed from. Section 23 authorizes such court to continue in force an injunction or grant an injunction pending an appeal from an order refusing or dissolving an injunction. Sections 1722, 1728, as amended by Acts of 1899, p. 116, enumerate appealable orders, and authorize the supreme court to stay any of the orders so enumerated; and Section 1742 authorizes such court to review on appeal any intermediate order not itself appealable. Hcld} that the statutes do not limit the right of appeal from final judgment, or the power of the supreme court on such appeals, but merely provide for independent appeals from interlocutory judgments and the extent of relief to be granted thereon.
    4. An appellate court has inherent power to preserve the subject of litigation and the status of the parties pending an appeal.
    5. Under Constitution, Art. VIII, Sec. 3, the writ of injunction expressly mentioned is a jurisdictional, prerogative writ, correlative with the writ of mandamus; the writ of injunction, used “as it ordinarily is as a judicial writ in aid of jurisdiction, and not as a prerogative writ, is one of the writs classed with “other original and remedial writs.”
    6. Under Constitution, Art. VIII, Sec. 3, authorizing the supreme court to issue such original and remedial writs as may be necessary to the complete exercise of its appellate jurisdiction, the supreme court may enjoin the operation of a mine, and require it to be preserved in statu quo pending an appeal in a case involving the title thereto.
    7. Where, on an appeal to -th: supreme court involving the title to a mine, it appeared that appellant had no means of ascertaining with certainty from day to day the value of the ores taken out by appellee, who was in exclusive possession; that whatever redress he might obtain would depend upon the testimony of witnesses and the integrity of accounts kept exclusively by appellee; and that the appeal could not be heard in its proper order for at least two years, — an injunction would be granted in aid of the appeal restraining the operation of the mine, and requiring it to be preserved in statu quo pending the appeal.
    8. Under Constitution, Art. VEO, Sec. 3, authorizing the supreme court to issue such writs as are necessary in aid of its appellate jurisdiction, the authority to preserve the subject of litigation pending an appeal to such court is exclusively vested in such court from the moment the trial court has entered its final judgment therein, and the trial court has no power whatever to issue -an injunction in aid of the appeal.*
    9. A decree of a trial court, designed to protect the rights of the parties pending an appeal «.o the supreme court from a final judgment, being void, does not estop the party at whose instance it is entered from applying to the supreme court xor an injunction to preserve such subject pending the appeal.
    ON Motion for Rehearing.
    Constitution, Art. VIII, Sec. 3, provides that “the appellate jurisdiction of tne supreme court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law.” Section 15 declares that * writs of error and appeals shall be allowed from the decisions of the said district courts to the supreme court under such regulations as may be prescribed by law.” Held, that the power of limitation given to the legislature by Section 3 does not authorize it to limit absolutely the appellate jurisdiction of the supreme court, to the extent of cutting off all right of appeal, but merely enables the legislature to enact reasonable regulations as to the time in which and the mode by which an appeal is to be taken.

      Appeal from District Court, Silver Bow County; B. W. Har-ney, Judge.

    • ActioN by Miles Finlen against F. Augustus Heinze and others. From a judgment in favor of defendants, plaintiff appeals, and asks for an injunction to preserve the subject to litigation pending appeal.
    Injunction granted.
    STATEMENT OE TIIE CASE.
    This is an action in the nature of ejectment, in which the plaintiff seeks to recover possession of the Minnie Healy lode mining claim, situate in the Summit Y alley mining district, Silver Bow county, together with damages for ores removed therefrom by the defendants. Pursuant to an application made at the time the action was brought, and after a hearing thereon, the district court issued an injunction to prevent the removal of ore from the property pendente lite. The defendants* in their answer, denied that Finlen had any title to or interest in the property, or any right to the possession of it; asserted title in themselves as against him; and demanded a decree against him requiring and directing him to' assign to- the defendant F. Augustus Heinze certain bonds and leases held by Finlen from the original owners of the claim, the said Heinze claiming to be entitled to such assignment by virtue of an agreement entered into between himself and Finlen, the conditions of which had been fully kept and fulfilled by Heinze. Hpon the trial of the cause the district court found upon all the issues in favor of the defendant, and entered a decree accordingly. The decree enjoins the plaintiff from asserting any right to the claim1 by suit or otherwise, and-from interfering in any way with the possession of the defendants. It also contains the following provisions: “It is furthta* ordered, adjudged and decreed that if the plaintiff file herein within five days hereafter an additional undertaking on injunction in favor of the defendants F. Augustus Heinze and the Johnstown Mining Company in the sum of fifteen thousand dollars, which -amount may be increased in the discretion of the court, the court retaining jurisdiction therefor (jurisdiction with reference to the injunction and all matters pertaining thereto being retained by the court on the motion and application of the plaintiff herein), conditioned as required by law, and to pay the said defendants any damages which they may have sustained by reason of the issuance of the restraining order or injunction herein or the continuance thereof, that the temporary injunction herein be continued restraining and enjoining all of the defendants from mining, carrying away or converting to their own use any ores or minerals from said Minnie Healy lode claim until the determination of any appeal which may he taken by the plaintiff to the supreme court from this judgment and decree, or until the further order of this court herein; provided, that said injunction shall not restrain or enjoin said defendants from doing any work or timbering in said claim, or in the openings therein, or the veins belonging thereto, which may be necessary to the proper care and preservation thereof; all ores taken out in doing same to be stored in or on said claim. If said plaintiff shall not give said additional undertaking as herein required, then the said restraining order and injunction shall thereupon be and become vacated and dissolved. It is further ordered, adjudged and decreed that, if the defendants F. Augustus Heinze and the Johnstowin Mining Company shall hereafter file herein an undertaking to the plaintiff in the sum of seventy-five thousand dollars, subject to be increased in the dis’eretion of the court, with two or more personal sureties, or with one surety company authorized to do business in the state of Montana,, such undertaking to be approved by the judge of this court, and conditioned that said defendants will pay to the plaintiff the net value of all ores which may thereafter and during the pendency of such appeal or until the further order of this court herein be mined, carried away or converted by them from said Minnie Healy lode claim, and also all damages and loss sustained by him by reason of the stay of the restraining order and injunction herein and herein ordered, if it shall be finally adjudged or determined in this action that the plaintiff is entitled to prevail or recover a judgment herein, then said restrainng order and injunction shall be, and the same is hereby, stayed as against the said defendants until the. determination of such appeal by the supreme court, or until the further order of this court herein; and said restraining order and injunction shall not, in that event, operate or be effective, after the giving or approval of the said undertaking, to restrain or enjoin said defendants F. Augustus Ideinze or the Johnstown Mining Company from mining, extracting, carrying aw¡ay, or converting to their own use the ores and minerals from said Minnie Healy lode claim and the veins belonging thereto during the pendency of such appeal, or until the further order of this court made herein with reference to said restraining order and injunction.” The plaintiff thereupon appealed from the judgment and decree and from an order denying him a new trial. Upon filing the transcript in this court the plaintiff presented his petition, supported by affidavits, setting forth that the defendants had given the undertaking provided for in the decree; were engaged in mining the property in controversy and removing therefrom and converting to their own use valuable ores to the amount of not less than 400 tons per day; and that, as their mining operations progressed, and as all the valuable ore was removed from the various workings in the property from time to time, the defendants were destroying the said workings in order to prevent the plaintiff from ascertaining the amount and value of the ores removed therefrom in case he should finally obtain a judgment against the defendants in this action. Upon the shewing thus made relief is demanded froroj this court by way of injunction to preserve the property pending a determination of the .appeal.
    At a hearing, had in this court the defendants filed counter affidavits denying all the charges made as to the destruction of the workings in the property, but admitted that they were mining and removing ores as alleged by the plaintiff.

      Mr. W. W. Dixon, Mr. A. J. Shores, Mr. D. Gay Stivers, Messrs. Forbis & Evans, and Mr. G. F. Kelley, for Appellant.

      Messrs. Mediation & Cotter, Messrs. Toole <& Bach, Mr. G. It. Leonard, and Mr. James M. Denny, for Respondents.
   ME, CHIEF JUSTICE BEANTLY,

after stating tbe case, delivered tbe opinion of tbe court.

Tbe application presents three questions for determination: (1) Whether this court bas power to grant tbe relief demanded; (2) whether, if it bas, the facts shown justify its interference; and (3) whether tbe plaintiff, by asking tbe trial court to retain jurisdiction of the case for tbe purpose of protecting tbe property pending tbe appeal, bas foreclosed bis application to this court for that purpose.

1. For answer to tbe first question reference must be bad to tbe- sections of tbe constitution containing’ tbe grant of appellate power to this court, and tbe provisions of tbe Code of Civil Procedure enacted in pursuance of them. This grant is contained in Sections 2 and 3 of Article NTH, which declare:

“Sec. 2. Tbe supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with tbe state, and shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law.
“Sec. 3. Tbe appellate jurisdiction of tbe supreme court shall extend to all cases at law and in equity, subject, however,, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo-ivamnto., certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to tbe complete exercise of its appellate jurisdiction. * *

Tbe provisions of tbe Code of Civil Procedure referred to, omitting parts not pertinent to this case, are tbe following:

“Sec. 21. Tbe supreme court may affirm, reverse or modify any judgment or order appealed from, and may direct tbe proper judgment or order to be entered, or direct a newl trial or further proceedings to be bad. * * * Its judgment in appealed cases must be remitted to tbe court from! which tbe appeal was taken.”
“Sec. 23. Tbe supreme court may continue in force an injunction order made by a dictrict court, or judge, or grant an injunction order and writ pending an appeal to the supreme court from an order of the district court, or judge, refusing or dissolving an injunction, upon such terms and under such rules as the supreme court may establish. No action to obtain an injunction must be commenced in the supreme court, except in cases where the state is a party, or in which the public is interested, or the rights of the public are involved, but the proper district court has jurisdiction of all injunctions, and the commencement of all actions therefor, except as in this section provided.”

Reference must be had also to Sections 1722 and 1723, as amended by the Act. of the legislative assembly of 1899 (page 140). These enumerate the judgments and orders from which appeals lie, and provide when they may be taken. Subdivision 2 of the former provides that this court, or any one of its justices, may stay any of the orders enumerated therein.

The defendants argue that the constitutional grant of appellate power also expressly authorizes the legislature to impose limitations upon it, and to provide regulations under which it may be exercised, and that, as these statutory limitations and regulations have been enacted by the legislature, this court must look to them exclusively for authority to act upon this and all similar applications through which relief is sought pending an appeal. In other words> Section 21, supra, only authorizes the court upon final hearing to affirm, reverse or modify a judgment or order of the trial court. Section 23 permits this court to issue an injunction when one has been refused by the district-court, or to continue one in force which has been dissolved. Section 1722 authorizes the grant of a stay of any of the interlocutory orders enumerated when such relief is appropriate. It therefore follows, from an application of the principle “ex-pressio unius est exclvsio alterius ” that this court can grant no other relief in aid of its appellate jurisdiction than that permitted by these specific statutory provisions. We cannot assent to the proposition that the legislature can thus limit and control the power vested in this court by the constitution, or that it has attempted to do so by the enactment of any of these provisions. It is manifest from the language of tliis instrument that it was tbo intention of its framers that the power-of review granted' should extend to all cases. The words “the appellate jurisdiction of the supreme court extends to all cases at law and in equity” are of universal application, and must be construed to mean that the parties litigant have the right of appeal to this court for final review of the action of the trial court, whatever it is, and that this court has the power to grant such relief as this review implies. It is a grant of power to this court, and at the same time a guaranty of a right to the individual citizen which is independent of legislative control, except in a qualified sense. In considering the character and extent of the appellate and supervisory powers granted by the sections quoted, and the limitations placed upon them by the expression “under such regulations and limitations as may be prescribed by law,” this court, in State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 Pac. 395, said: “While the legislature cannot decrease the powers granted by the constitution, this clause evidently intended that that body should provide the mode of procedure to be employed by which, and the limitations as to time within which, both these powers should be invoked; for, though the power of the court is plenary, it cannot be exercised until a mode for its exercise has been provided. Tet by this statement We do not concede that the legislature, by failing to act, can render these powers of no avail. It is a question worth consideration Avhether, in the absence of action on its part, this court has the power to establish rules for the exercise of its appellate and supervisory powers. Some procedure must be provided by which the individual litigant may avail himself of the relief which the court has power to grant. It is in this sense that an appeal is the creature of the statute, and that the right to it does not exist unless it is provided for.” By this language we meant to intiro|ate an opinion that the power to consider appeals to this court from final judgments in all cases is a constitutional power, and that, in the absence of suitable action by the legislature providing the necessary procedure, the power is not beld in abeyance, but may nevertheless be exercised under suitable rules provided by this court.

The clause, “subject to such limitations and regulations as may be prescribed by law,” contained in Section 3, — a substantial equivalent of the limitation clause in Section 2, — must be read in connection with the preceding clause, which embodies the grant, and such imfport be given to it as will permit the court to retain the power vested in it, as a distinct department of the government, with its own peculiar and appropriate functions, and at the same time preserve the right guarantied to the litigant. The word “limitations,” in its ordinary legal and popular sense, refers to the time within which an action may be brought, or some act done, to preserve a right. In this sense it implies power in the legislature to enact reasonable provisions-fixing a limit to the time within which an appeal from a final judgment may be prosecuted. This the legislature has done in the enactment of Section 1123, supra, after recognizing' the right of appeal in Subdivision 1 of Section 1122. But we think that, as here used, the term has a somewhat broader meaning. It refers also to the powier of the legislature to provide for appeals from interlocutory or intermediate orders and decisions, and, in its discretion, to direct that such appeals shall be taken and entertained prior to final judgment, and- that, unless they are so taken, the court may not review such orders upon appeal from the final judgment. This has been done by the provisions contained’in Subdivision 2 of Section 1722, Subdivision 3 of Section 1723, and Section 1742; for the first two-sections enumerate the interlocutory orders from which appeals lie, dnd fix the time in which they may be taken] while the latter declares that upon appeal from a final judgment the court “may review " * * any intermediate order or decision excepted to, -which involves the merits, or necessarily affects the judgment,” except one from which an appeal might have been taken. Necessarily, the grant of the power to the legislature to provide for appeals from interlocutory orders implies the power to withhold the right to them. These provisions, taken together, are limitations not only as to the time within wbicb, after tbe making of tbe particular judgment or order, tbe appeal may be prosecuted, but also> in case of intermediate and interlocutory orders and decisions', as to tbe time in tbe course of tbe litigation at wbicb tbe proceedings for review must be instituted. Tbus indirectly, and by tbe substitution of another time at which, and a different mode by which, tbe review may be bad, they further limit tbe extent of relief wbicb tbe court may grant upon appeal from a final judgment. But, though this is true, tbe power of limitation by tbe legislature applies primarily to tbe time within wbicb tbe power of this court may be invoked by tbe litigant. It is only in this sense that tbe legislature may impose limitations, and these limitations, whatever they may be, may not restrict tbe right of tbe litigant to have every order in tbe case affecting tbe merits reviewed either upon appeal from tbe final judgment or during the progress of tbe case, and within a reasonable time after the particular order is made; nor may they restrict tbe power of tbe court to grant s-ucb review.

So tbe word “regulations” refers to tbe establishment- of tbe procedure by means of wbicb tbe power may be set in motion, and in obedience to wbicb it may be exercised. It is only in this qualified sense that an appeal from a final judgment is a creature of tbe statute. Appeals from interlocutory or int-eram-diate orders, as a special and independent method of obtaining relief, are not based upon a constitutional- guaranty. They are, therefore, subject to just such limitations, both as to tbe particular class or classes of orders from wbicb they lie, and as to-tbe time in wbicb they may be taken, as well as to tbe extent of tbe relief wbicb may be granted, as tbe legislature may impose. Tbe legislature may also regulate tbe procedure to be observed, and tbe rules provided by it must be tbe exclusive guide. In this sense these appeals are exclusively creatures of tbe statute. We do not mean to say that the legislature may, by unreasonable limitations and regulations, or by nonaction, destroy or render ineffective tbe power of this court to- review interlocutory orders; for, notwithstanding independent appeals from them may not be provided for, errors in miaking them may be reviewed upon appeal from the final judgment in the case, or by certiorari, according as one or the other method is appropriate, provided always that review upon appeal extends only to such orders and decisions as are excepted to by the party aggrieved and such exception is properly preserved.

None of the provisions of the statute^ supra, nor any others, undertake to limit the auxiliary powers of this court upon appeal from a final judgment. All of the sections cited, except Section 21, in so far as they attempt to fix limitations beyond those already noticed as to the matter of time and the mode of procedure, refer exclusively to appeals from interlocutory orders and orders made after final judgment, and the relief which may be granted in aid of them. Section 21 does not undertake to fix any limit upon them, but merely declares the extent of relief which can be granted upon final hearing under the sections of the constitution quoted as construed by this court in the light of the circumstances existing at the date of its adoption. (State ex rel. Whiteside v. First Judicial District Court, supra.) The extent of the relief granted upon final review, in so far as this provision may be considered a legislative limitation upon it, would be just the same had it never been enacted. ' It follows, therefore, that, except to provide independent appeals from interlocutory orders, and to deny any other mode of review of them, the legislature has not limited in any way the extent of the power of this court upon appeals from final judgments. Nor do we think such limitations would be valid, or effective for any purpose, should any such be enacted.

We do not deem anything said herein to be in conflict with the views expressed in the two cases recently decided by this court under the title Maloney et al. v. King et al., Mont. 487, 492, 68 Pac. 1012, 1014. The first of these cases involved the question whether this court, under the provisions of Article VIII, See. 3 of the Constitution, and of Sections 1722 and 1723 of the Code of Civil Procedure, supra, has the power to suspend the operation of an interlocutory injunction pending an appeal from an order granting it. It ivas held, among other things, that it is not necessary to the complete exercise of appellate jurisdiction tbat tbe order be modified, vacated oar rendered dormant while tbe appeal is pending. In tbe second case it was held, among other things, that upon an appeal from a final judgment directing a perpetual injunction to issue, this court is not authorized by Section 23, or by Sections 1122 and 1723, supra, or any other provision of law, to1 stay the operation of the injunction pending the appeal, since these statutes apply to interlocutory injunctions only, and have no reference to suspending or staying the operation of a final decree. It was held, also', that no power was conferred by the constitution to suspend the order or judgment pending tire appeal. In neither of these cases was it sought to have the subject of the controversy protected and preserved until the appeal could be disposed of. In the case of Bordeaux v. Bordeaux, 26 Mont. 533, 69 Pac. 103, this court was asked to grant the appellant temporary alimony and suit money pending her appeal from a judgment of divorce. The application was denied on the ground that it sought to invoke the exercise of original jurisdiction in a divorce case, and that under the constitution this court was not vested with such jurisdiction. The relief sought in the case at bar is not a suspension of the judgment of the district court, nor the exercise of any original power. It is sought to* preserve the property pending the appeal, leaving the judgment in force until its integrity can be determined, and the rights of the respective parties finally adjudicated.

Appellate jurisdiction also implies all the power1 and instru-mentalities necessary to malee effective the ultimate relief sought. This follows from the grant itself without other express provision, for “it is an established doctrine that one of the essential attributes of appellate jurisdiction, and one of the inherent powers of an appellate court, is the right tO' make use of all the writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably exercise the jurisdiction conferred.” (Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 11 Pac. 103.) This language was quoted with approval in State ex rel. Whiteside v. First Judicial District Court, supra, and we deemed it an expression of the correct' rule. If, pending the appeal,' the subject of the litigation could not be preserved, and the appellant could be left in such a position that, though he should prevail in his appeal, and be finally successful in the litigation, he could not enjoy the fruits of his victory, the right of appeal would have no substantial value, but would be one in name only. This court therefore must, of necessity, and in the nature of things, possess inherently whatever power may be necessary to preservo the subject of the litigation and the status of the parties, pending the appeal. (Pennsylvania R. Co. v. National Docks & N. J. J. C. Ry. Co., 54 N. J. Eq. 647, 35 Atl. 433.) The constitutional convention, recognizing; this necessity, after giving to the court expressly the power in its discretion to issue and to hear and - determine the six writs enumerated, also gave -the power to issue, hear and determine all other original and remedial writs necessary to the complete exercise of its jurisdiction, so that no- doubt or embarrassment might exist as to. the means at its command for 1his purpose. (State ex rel. Whiteside v. First Judicial District Court, supra.) • The original writs may, therefore, be used for any purpose for which they are appropriate; and the others, whatever they may be, may bo used in the same way in aid of the appellate jurisdiction. The writ of injunction has been assigned by this court to the performance of prerogative functions as the equity arm of the court’s original jurisdiction, and as correlative with the wt’it of mandamus, to restrain excesses, just as the latter is used to supply defects and to compel action. (State ex rel. Clarke v. Moran, 24 Mont. 433, 63 Pac. 390.) What is said of it, however, applies to it as a jurisdictional writ, the use of which is not subject to restriction or control by the legislature, but is lodged in the discretion of this court, to be used for whatever purpose it may be appropriate, in the protection of the sovereignty of the state, its franchises or prerogatives, or the liberties of the people. The writ of injunction, used as it ordinarily is, as a judicial writ, in aid of jurisdiction, and not as a prerogative writ, is one of the writs properly classed with “other original and remedial writs/’ and is every way suitable to be used in tire exercise of tbe auxiliary power now invoked.

2. Having reached the conclusion that this court has power to grant the relief demanded, the next inquiry is, do the facts presented upon the hearing justify interference? Touching the affidavits tending to show wanton destruction of the workings in the property by defendants, we think them so overwhelmingly rebutted by ihe' counter affidavits that they are not worth consideration. It is admitted, however, that tlie defendants have extensive workings in the claim, and that they are pushing forward their operations with a large force of men; that they are removing from it and converting, to their own use about 400 tons of ore per day, and that this is of great value. Under the view we take of the attempt by the district court to retain jurisdiction pending the appeal, the plaintiff has no security against loss, in case he should finally prevail in the. litigation, other than the pecuniary responsibility of the defendants. Even if they are and remain solvent, he has no means of ascertaining with certainty from day to day the value and amount of the ores taken out and converted by them. Whatever redress he might obtain would, therefore, depend upon the testimony of witnesses, and the integrity of the accounts kept exclusively by defendants. It will be at least two years before the appeal can be heard by this court, if it is taken up in its proper order. By that time the mine will be in a great measure exhausted. The sole value of the estate will thus be greatly diminished. These facts present a case which appeal so strongly to our discretion that wie think a refusal of the relief demanded would be denial of justice. T'o grant, it would be simply to preserve the property, and allow it to stand as it is, until it is finally determined who is the lawful owner of it. To deny it would be to permit the estate to be destroyed, and drive the plaintiff, if finally successful, to pursue remedies for redress wholly different from that of which he seeks to avail himself in the present litigation.

These observations are founded exclusively upon the showing now made to this court. We have not looked into the merits of the case, nor are we to be understood as having prejudged them in the slightest degree. The ultimate fact that the property involved would certainly be destroyed pending an appeal to this court in a controversy involving the title, so that the complaining party would practically be defeated, though he should finally prevail, is a sufficient ground for relief, whatever the merits of the controversy may be, it appearing from, the assignments of error that the questions involved are important and doubtful, and that the appeal is prosecuted in good faith.

3. Much contention is made by the defendants in support of the view that, inasmuch as the decree shows upon its face that the trial court, at plaintiff’s instance, retained jurisdiction of the cause pending the appeal, for the purpose of protecting the subject of the litigation, the plaintiff may not be heard in this court upon this application. On the other hand, plaintiff contends that the recital in the decree is false, that it is not founded upon any suggestion made by him to the trial court, and that it was inserted by the trial court, without authority or facts to support it, by way of an amendment to the original decree^ more than six.months after the latter was regularly entered. We shall not now consider what power the district court has to amend its final judgment or decree more than six months after it has been, regularly entered, or what evidence is necessary to support such amendment. In our oiunion, the particular amendment in question was wholly unauthorized, no matter at whose instance it was made, or what evidence there was tending to show that the matter- contained in the amendment was in fact a part of the decree as rendered in the first instance. When that court rendered its final judgment at the conclusion of the case settling the rights of the parties, its jurisdiction over the subject-matter and the parties ceased, except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had looking to a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal. Upon appeal from a final judgment, after the motion for a new trial has been disposed of, jurisdiction over the subject-matter involved and the parties to grant an injunction or other appropriate relief pending the appeal is vested in this court. To preserve and protect the property so that at the end of the controversy in this court it may be in the same situation it was at the time this court obtained jurisdiction over it, is solely and exclusively the office and duty of this court. It is a necessary incident to its appellate power, whether expressly conferred by the constitution or not, unless withheld by express provision of that instrument. Under Section 3, cited supra,, the power is expressly confided to our discretion to issue, hear and determine any writ which may be deemed necessary to the complete exercise of this power. To protect and preserve the rights of the parties is a power absolutely necessary in-aid of this jurisdiction. It being lodged in our discretion, without limitation or restriction, the district court has no power to take it away, and is therefore without authority to act in the premises in any way whatever. The fact that it has undertaken to do so at the instance of plaintiff— and for present purposes we assume it to be a fact — does not alter the situation. A judgment or order rendered without jurisdiction of the subject-matter is wholly unauthorized and void, and does not estop- any person from questioning its validity whenever it suits his purpose to do so, whether such person be a party to it or not.

It is therefore ordered that an injunction issue requiring the defendants to refrain from mining or removing any ores from the Minnie Ilealy claim pending the appeal herein, or until the further order of this court; provided that before the same shall issue the plaintiff shall file with the clerk of this court an undertaking in the sum of $300,000, with at least two good and sufficient sureties for the full amount of the penalty thereof, the same to be conditioned as is provided by law: in such cases, the sureties to- be approved by the clerk of this court; and provided, further, that the defendants may do whatever work may be necessary to preserve the property during the pendency of the appeal.

Writ granted.

(Submitted July 28, 1902.

Decided August 4, 1902.)

ON Motion eoe Eeheabing.

ME. CHIEF JUSTICE BEANTLY

delivered tbe opinion of tbe court.

Immediately after tbe original opinion was filed in tbis canse, in July of tbis year, counsel for tbe defendants filed a motion for a rebearing. Tbis motion was, after argument and further consideration of tbe questions involved, denied; Mr. Justice Milbuen dissenting. The time for the summer vacation having arrived, it was not practicable for tbe court to reduce to writing additional reasons in support of tbe conclusions announced in the former opinion. While a majority of tbe court deemed tbe reasons for its action upon tbe motion already sufficiently stated, it was thought advisable, when tbe court convened again, to elaborate them in certain respects* in order to dispose of suggestions made upon the argument of tbe motion, as well as to call attention to matters not theretofore adverted to.

1. It was earnestly and plausibly argued by counsel that it ivas tbe intention of tbe constitutional convention, as shown by the use of the clause, “subject, however, to such limitation'-1 and regulations as may be prescribed by law” (Constitution, Article VIII, Section 3), to grant to tbe legislature tbe power to limit absolutely tbe appellate jurisdiction of tbis court, even to the extent of cutting off the right of appeal in all cases, if it should so desire. Tbis result, they say, follows from tbe usual and ordinary definition of the word “limitation,” namely: “Tbe act of bounding or circumscribing; the fixing of a limit or restriction.”

It is tbe duty of tbis court to interpret tbe constitution in its entirety, and to endeavor to discover what its meaning is as a whole; giving to each word and phrase the definition which will make it consistent and harmonious with other words and phrases contained in it upon the same subject; exercising the utmost care not to impose restrictions where none were intended, nor to enlarge the meaning in any particular so- as to> effect results, or make it confer powers* not contemplated by its framers. This must be done by a study of the language employed, giving to each word its ordinary signification, unless it is apparent that it is used in some special or different sense. Reference may also be had to the history of our judicial system, and the conditions existing at the time the constitution was adopted.

In the former opinion the clause in question was held not to be open to the interpretation contended for by the defendants, for the reason that it must be construed in connection with the grant of appellate power contained in the preceding clause, and such a meaning given to it as will permit both to stand. We did not deem it possible that the convention intended itself to be understood as granting plenary appellate jurisdiction to this court, coupled with a right impliedly reserved to the citizen to invoke it, and at the same to declare that the jurisdiction should be used or the right exercised only at the option and by the express permission of the legislative assembly. That this was not the intention is manifest from the provision contained in Section 15 of the same Article, which declares: “Writs of error and appeals shall be allowed from the decisions of the said distinct courts to- the supreme court under such regulations as may be prescribed by law.” It will be noted that the expression is, “the decisions-;” that is, all the decisions. There is no limitation whatever as to any particular character of decision, but the expression includes every decision, of whatever character. Certainly, this must be construed in the light of the conditions and exceptions existing at the time the constitution was formulated and adopted; but this court is not permitted to go further, and give an import to the language of Section 3, supra, which would, practically destroy the import of the clear statement contained in Section 15, quoted. This latter seems to have been inserted ex industria- to give scope and meaning to the limitation clause, so that there could be no mistake as to its intended-signification. If the contention of the defendants should be sustained, then the powers of this court, except its power under the sis original writs enumerated in Section 3, would be held in abeyance until the legislature should choose to grant it permission to exercise them. This would, of course, be of no moment, were it clear from any express declaration that such was the intention of the convention; but there being no such expressly declared intention, and the declaration contained in Section 15 being inconsistent with such a purpose, we were constrained to adopt and adhere to the interpretation given to the limitation clause contained in Section 3. We are confirmed in this view1 by an examination of the Organic Act creating the territorial judicial system, after which our present system was modeled in several particulars, and of the decisions which have discussed and defined the jurisdiction of the appellate court established thereby. Section 9 of this Act declares “that the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.” Then, after providing for the organization of the supreme and district courts, it proceeds: “The jurisdiction of the several courts herein provided for, both appellate and original, and that of probate courts and of justices of the peace shall be limited by law: provided, that * * * said supreme and district courts respectively shall possess chancery as well as common law jurisdiction.” Then follows the further provision: “Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law.” It requires but a cursory examination of these provisions to induce the conclusion that the constitutional convention, in formjulating Sections 3 and 15, supra, had them in mind, and intended to embody them as nearly as might be in the organic law of our state, SO' that upon the change to statehood there might be as little departure as possible from the system already established. It would seem that the clause declaring that the appellate jurisdiction of the supreme court should be limited by law was a sufficient warrant to the legislature to declare that in certain cases appeals should not lie; yet the territorial supreme court (Payne v. Davis, 2 Mont. 381) held, in considering this provision, tbat it conferred no power to take away tbe right of appeal in any case. After referring to tbe language last above quoted, tbe court said: “Under tbis provision, tbe legislative assembly has tbe power to define tbe mode and manner of tbe proceedings by which appeals can be taken to tbis court. But it has no authority to limit tbe appellate jurisdiction of tbis court, and deprive any party of bis right to be beard on appeal in any case.” And tbis view is entirely in accord with tbat stated by tbe supreme court of tbe United States in Ferris v. Higley, 20 Wall. 375, 22 L. Ed. 383, wherein that court held tbat these provisions did not authorize legislation which limited or impaired tbe jurisdiction of tbe territorial supreme ór district coui’ts. See, also, Gallagher v. Basey, 1 Mont. 462; Chumasero v. Potts, 2 Mont. 242; U. S. v. Ensign, 2 Mont. 401; Kleinschmidt v. McAndrews, 4 Mont. 32. Tbis court has heretofore, and since tbe adoption of tbe constitution, declared substantially tbe same conclusions. In Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218,-a case which arose after tbe establishment of tbe state government, — an appeal was taken by tbe plaintiff in an election contest from an order denying him a new trial. It was contended by tbe respondent tbat tbe appeal did not lié. Tbe statute did not in express terms permit an appeal in such cases, but' did allow, generally, appeals from orders denying new trials. The court overruled tbe contention, however, — citing Payne v. Davis, supra, — rand held tbat these constitutional provisions, when construed together, extended tbe appellate jurisdiction of tbis court to all cases, actions, and proceedings which have finally been decided by the district court, including an appeal from an order denying a motion for a new trial in an election contest, and tbat tbe right thus guarantied is a substantial one.

It thus becomes clear tbat parties litigant have tbe right of appeal from all tbe decisions made in tbe progress of tbe ease, and tbat tbis court has jurisdiction to bear and determine them, subject only to such reasonable limitations and regulations as tbe legislature may enact affecting tbe time within which and tbe mode by which tbe appeal may be taken. Tbe only exceptions to this broad statement of tbe rule are judgments in contempt, and perhaps orders made in a few' summary proceedings, in which appeals were not allowed under the Organic Act, and may therefore be deemed to have been impliedly excepted from the general provisions of the constitution.

The cases cited by counsel, such as U. S. v. More, 3 Cranch, 172, 2 L. Ed. 397; Durousseau v. U. S., 6 Cranch, 312, 3 L. Ed. 232; Wiscart v. Dauchy, 3 Dall. 327, 1 L. Ed. 619; Robinson v. Baillieul, 2 Tex. 161; Yarbrough v. State, Id. 526; and State v. Daugherty, 5 Tex. 3,—and similar cases, being based upon different constitutional provisions, do not apply.

2. Counsel insisted that this court was in error in declaring that the appeal was taken in good faith, and in basing this declaration upon the statement “that the same appears from the assignment of errors.” In determining whether the plaintiff was entitled to the relief demanded pending the appeal, reference must, of- necessity, be had to the assignments of error and the record, in order to determine whether the appeal was taken in good faith. Of course, this court did not wish to be understood as having confined its preliminary examination of the record to the list of errors assigned therein, without looking further, to see if there were matters in the record upon which the assignments were predicated. This the court did; and having found that such was the case, and that important and doubtful questions were raised, and, further, that a correct solution of them would require a careful investigation of the authorities, it was thought that a sufficient case was made out to authorize the issuance of the writ, to prevent the partial or total destruction of the estate involved before the appeal could finally be reached and disposed of.

3. Much was said in the argument to the effect that, whatever powers this court has under the constitution, it has no power to reverse or modify, upon an application of this character, the judgment rendered upon the merits by the district court. This the court did not do; nor is this the effect of the relief granted. That judgment stands as rendered, without modification, and will remain in full force until reversed, modified, or affirmed upon a final hearing. The only effect of the writ is, and will be, to preserve the mine until the disposition of the appeal.

For these additional reasons, we were, and still are, of the opinion that the writ was properly issued, and that the motion for a rehearing should be denied.

Motion denied.

Me. Justice MilbubN:

I dissented from the order denying the motion for another hearing, because I desired to hear further argument. The briefs of counsel in support of the motion were such as to cause me to think that I might have been mistaken in the decision at which I arrived in the case, and I was willing to grant a rehearing, although the argument of the counsel in said briefs did not convince me that I had arrived at a wrong conclusion.


source: Caselaw Access Project

author: ME. JUSTICE PIGrOTT Mr. Justice Milburw :

license: Public Domain

text:
    STATE ex rel. SUTTON, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,804.)
    (Submitted April 12, 1902.
    Decided July 21, 1902.)

      Supreme Court — Jurisdiction—Writ of Supervisory Control— Constitutional Law — Judgment of Contempt.

    Code of Civil Procedure, Sec. 2183, providing tliat the judgment in a case of contempt is final and conclusive, and there is no appeal, but the action of a district court can be reviewed on a writ of certiorari by the supreme court, if intended to preclude the supreme court from reviewing, except by certorari, a judgment of contempt, violates Constitution, Art. VIII, Sec. 2, giving the supreme court a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by statute; a writ of supervisory' control being the only means by which the question whether there is evidence to support a judgment of contempt can be determined.

      Whit of supervisory control, on the relation of Wakenpan Sutton, to tbe district court of the Second judicial district, and William Clancy, a judge thereof.

      Messn's. McBride & McBride, for Eelator.

      Messrs. McHatton & Cotter, for Eespondents.-
   ME. JUSTICE PIGrOTT

delivered the opinion of the court.

Wakeman Sutton was adjudged guilty of a constructive contempt of the the district court of Silver Bowl county. One of the penalties imposed by the judgment was a fine of $200, with imprisonment until paid or satisfied. At his instance, a writ of habeas corpus, aided by a writ of certiorari, was issued by a justice of this court. After a hearing, the writs were quashed, and the proceeding was dismissed on the ground that the judgment sought to be annulled was rendered by a court having jurisdiction of the subject-matter and of the parties. We held that the supreme court could not, upon such proceedings in habeas corpus or certiorari,, or both, examine the evidence received at the hearing on the charge of contempt. (In the matter of the petition of Wakeman Sutton for writ of habeas corpus; and, in aid thereof, State ex rel. Sutton v. District Court of Second Judicial Dist., 26 Mont. 557.)

Thereafter the present application was made by means of a verified petition containing copies of all the proceedings, including the evidence adduced in the district court. The applicant asks for a writ of supervisory control eompnanding the defendants district court and judge to vacate the judgment.

The jurisdiction of the supreme court to entertain the petition is challenged by a motion to dismiss the proceeding, the defendants insisting that the only means by which a judgment of contempt can be brought up for review is by certiorari as provided in Section 2183 of the Code of Civil Procedure, and that, unless annulled or modified on certiorari, such a judgment is absolutely final and conclusive, and therefore beyond the power of this court to consider. In short, the contention of the defendants is that Section 2183 prescribes the only means whereby judicial relief may be obtained against judgments of contempt. That section reads: “Section 2183. The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive, and there is no appeal; but the action of a district court or judge can be reviewed on a writ of certiora/ri, by the supreme court or a judge thereof, and the action of a justice of the peace or other inferior court by the district court or judge of the county in which such justice or judge of such inferior court resides.” Do these provisions preclude the supreme court from employing any means, other than certiora/ri, to review the integrity of judgments in contempt proceedings ? We think they do not. Sections 2 and 3 of Article VIII of the Constitution contain three several and distinct grants to the supreme court: (1) The grant of appellate jurisdiction in all cases at law and in equity, subject to such limitations and regulations as -the legislative assembly may prescribe, together with the incidental power to issue, hear, and determine all such original and remedial writs as may be necessary or proper to the complete exercise of such jurisdiction;‘(2) the grant of original jurisdiction to issue and to hear and determine certain enumerated writs; and (3) the grant (contained in Section 2) of a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by statute. (State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395; Finlen v. Heinze et al., 21 Mont. 107, 69 Pac. 829.) Now it must be at once conceded that contempt proceedings are not, within the meaning of the constitution, cases at- law or in equity which, in the absence of legislative action authorizing it, may be reviewed by appeal. In In re Boyle, 26 Montana Reports, 365, 68 Pacific Reporter, 409; and in State ex rel. Healy v. District Court, 26 Montana Reports, 224, 68 Pacific Reporter, 470, we have held that, on c&i'tiorari, the question whether there was evidence in support of a judgment for contempt cannot be determined. Is a person, then, remediless whenever a district or justice’s court of competent jurisdiction adjudges him guilty of constructive contempt without evidence to support the charge ? Must be suffer sueb a judgment to be executed against bis person and property or either? If any judicial relief can be obtained, it must be through the exercise, by this court, of its constitutional power of supervisory control. To this court has been confided and intrusted the ultimate and supreme judicial power of supervisory control over all the inferior courts within the state. It is a power liable to abuse, and should be exercised with discretion, caution, sparingly, and only in exigent cases, to protect a manifest right or to redress a palpable wrong. We have just decided in Finlen v. Heinze, supra, that the appellate jurisdiction with which the organic law has clothed the supreme court cannot be taken away or diminished by the legislative assembly. Limitations and regulations may properly be prer scribed, provided the right of effective appeal be not denied or substantially invaded. The same rule seems applicable to the present matter. The power to exercise a general supervisory control over district courts', being conferred by a constitutional grant, cannot be lessened or interfered with by the legislative assembly. It may, of course, prescribe reasonable regulations and limitations as to the time within which, and the mode by which, the relief may be sought; the procedure is a legitimate subject of legislation, — for instance, the legislative assembly may require the application to be made within a certain period of time, it may require a bond or undertaking, it may provide for authentication and certification of the record or transcript, and the like. But is without power to deprive this court of any part of its jurisdiction conferred by a rigid constitution. If the effect of Section 2183, supra, be a declaration that the áction of inferior courts can be reviewed only on certiorari, it must be held to be an attempt to withdraw from the supreme court part of its jurisdiction by confining the scope of its review to the single question which can be decided on certiorari. Concede the right of the legislative assembly in this case so to curtail the jurisdiction of the supreme court, and its right to do so in any case must, as it seems to- us, be likewise conceded. The result would be that the legislative assembly may abolish review through the exercise of supervisory control, and lawfully declare that the writ of certiorari (which is one of the writs enumerated in a separate grant of power) shall be the sole means of obtaining redress'. If the section, when so interpreted, be consistent with the constitution, then a statute in terms destroying the jurisdiction of the supreme court to exercise such control would necessarily be valid. But the legislative assembly may not substitute for an adequate remedy created and guarantied by the constitution a proceeding which is inappropriate, and under which the particular wrong cannot be redressed.

Our conclusion being that the supreme court, notwithstanding Section 2183, supra, has power, by means of writs of supervisory control, to review judgments of contempt, on the application of the contemner, the next question is whether the present case is one calling for the issuance of such a writ. We believe it is. There was at least a technical violation of the injunction by those in Sutton’s employ, for which, as we incidentally observe, they have been punished as for contempt; but the transcript sets out all the evidence taken in the district court, and there is not any substantial evidence from which may be justly deduced the inference that Sutton either intentionally, or through carelessness, disobeyed the injunction order in the particulars set forth in the affidavit charging him with contempt, or permitted his agents or servants to do so: The district court,by its judgment in a summary proceeding, has, without evidence to justify it, wrongly declared that Sutton shall be deprived of his liberty and of property. The case is exigent; the wrong is manifest. Let a wait of supervisory control issue, commanding the defendant district court and judge to set aside, annul, and for naught hold the judgment of September 3, 1901.

Mr. Chiee Justice BsaNtlt: I concur.

Mr. Justice Milburw :

I concur in the foregoing opinion. Counsel for the defendants contend that there is no- remedy for a person deprived of his liberty or property by an inferior court which acts within its jurisdiction; and that the judge of such court, even if he act arbitrarily, maliciously, or viciously, and do a flagrant wrong to an unoffending person, being responsible to tbe people, may be removed from office for bis wrongdoing. If tbis be true, a citizen may be fined $500 twice a day, for thirty days, and tbe records be made regular upon tbeir face, showing jurisdiction of tbe court. If such acts of tbe court be all done through malice, then, if the contention of tbe defendants be correct, tbe citizen must submit without remedy, and lose bis property, or be imprisoned in default. It is said that tbe conscience of tbe single subordinate officer, perhaps some ignorant and unworthy person unfortunately bolding tbe office of justice of tbe peace by tbe vote of a dozen voters, is ultimate, and that be cannot be controlled in a case of fine or commitment for contempt of court. Tbis was tbe danger to which citizens were subject until tbe people, by tbeir representatives in tbe constitutional convention, provided that tbe supreme court, composed of justices chosen, one every two years, from tbe whole state, and thus, as far as possible, removed from prejudice, local influence and personal contact with interested litigants, and being influenced by tbe consciences of its members, should control and exercise supervision over inferior courts and tbe judges thereof. Perfection cannot be attained in governments. Tbe people, being unwilling to leave tbeir liberties entirely to what in some, and happily only a very few, cases might be whim, caprice, prejudice, or gross ignorance, provided by tbeir constitution that, in cases of great emergency, tbe acts of inferior courts could be controlled by tbe supreme court. It is a tremendous power, but not more so than the alleged arbitrary power said to be reposed in tbe inferior courts. It is to> be exercised only when solemn duty shall force interference. There may be, occasionally, times when tbe ordinary processes and procedure of tbe law] are inadequate. If courts tyranically deprive citizens of tbeir liberty or property, and there be no appeal or other remedy except petition to tbe supreme court for a writ of supervisory control, at such times tbe supreme court, under tbe power conferred upon it by tbe people for tbeir own protection, must exercise tbis dangerous power, — dangerous because it is possible that it may be improperly exercised. Tbe danger of its improper exercise by the supreme court, removed, as its justices are, from local clamor and prejudice, is not as great as uncontrollable power in a single judge or justice of the peace, who-, it is claimed, may do> as he please in contempt cases, provided he cause the record to be written up with shill, and be only liable to a proceeding for his removal, or to have his acts passed upon at the polls at the next election, if he stand for re-election, and perhaps by only a single score of voters in a township election. This writ must not be, and will not be, used to supplant effective remedies provided by law.


author: ME. JUSTICE PIGOTT

text:
    STATE ex rel. BOYLE et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,803.)
    (Submitted April 12, 1902.
    Decided July 21, 1902.)

      Contempt — Supervisory Control — Revievl.
    On an application for a writ of supervisory control to annul a contempt order, tbe supreme court may look into the evidence properly before it for the purpose of ascertaining whether there was any substantial evidence on which to base the order.
    Application by J. Boyle and others for a writ of supervisory control to the district court of the Second judicial district and the Honorable William Clancy, judge thereof, and an-^ other, to annul an order adjudging applicants in contempt.
    Application denied.

      Mr. J. M. Mealy, Mr. J. M. Minhle, and Messrs. Breen & Mackel, for Relators.

      Messrs. McMatton & Cotter, for Respondents.
   ME. JUSTICE PIGOTT

delivered tbe opinion of tbe court.

Application for writ of supervisory control. Tbe petitioners heretofore unsuccessfully sought, by writs of habeas corpus and certiorari, to annul a judgment of contempt ag’ainst them. (In re Boyle (State ex rel. Boyle et al. v. District Court of Second Judicial Dist.) 26 Mont. 365, 68 Pac. 409.) They now ask for a writ of supervisory control, and present all tbe evidence taken in tbe court below on tbe bearing. Jurisdiction in this court to grant tbe writ prayed for is questioned. Tbe objection is disposed of by tbe opinion in Stale ex rel. Sutton v. District Court of Second Judicial Dist., ante, p. 128, 69 Pac. 988.

Upon an application of this kind we may look into tbe evidence properly brought before us for tbe purpose of‘ascertaining whether there was any substantial evidence to justify tbe finding upon which tbe judgment of constructive contempt was based. After careful consideration, we are not prepared to say that such evidence was lacking. The application is therefore denied, and the proceeding dismissed.

Dismissed.


author: MB- JUSTICE MILBUBN

text:
    CITY OF HELENA, Appellant, v. ROGAN et al., Respondents.
    (No. 1,684.)
    ON MOTION FOR, REHEARING.
    (Submitted June 9, 1902.
    Decided July 21, 1902.)

      Municipal Corporations — Water Supply — Eminent Domain— Consent of Owner — Pleading and Proof — Statutory Construction.

    1. Since the amendment of the Political Code of 1895, Sec. 4800, by Session Laws of 1897, p. 203, to read as in such Act provided, and omitting the provisions of such section and of the Act of March 7, 3893, requiring a city, before condemnation proceedings to acquire title to property for a water supply, to endeavor to agree with owners of sueb property for the purchase thereof, in proceedings by a city to condemn property for such purpose it is not necessary to allege or prove that the city had endeavored to obtain the consent of the owners of the property to the tailing thereof.
    2. where a provision of a statute is amended by an Act using the words “to read as follows,” it must be the intention of the lawmakers to make the amendment a substitute for the old provision, and to have it take its place exclusively.
    Motion for rehearing.
    Denied.
    For former opinion, see 26 Montana, p. 452, 68 Pac. 798.
   MB- JUSTICE MILBUBN

delivered tbe opinion of the court.

This cause is before us on motion of the appellant for a rehearing. It is contended that we erred in what is held in the opinion (26 Mont. 452, 68 Pac. 798) respecting the necessity of sufficiently- describing the property to be taken. We have carefully Considered the able brief of counsel, but do not see any reason why we should modify anything we have said upon this matter.

A question ivas submitted in the briefs of counsel which was not discussed in the opinion, and we are asked to pass upon it now It is this: Is it necessary to allege and prove that, before beginning suit to condemn the property, appellant endeavored to obtain the consent of the several defendants to take the same for the intended purpose? The laws of this state as they are now, and were when the suit was commenced, do not and did not require such an allegation to be made. In the absence of any authority supporting any contention that such allegation or proof must be made, and there being no such requirement in our Code as amended by the session laws, we hold that it is not necessary to allege or prove that appellant negotiated with the defendants for a cession to it of the property which it seeks to obtain 'under the law of eminent domain. There are many authorities which hold that such an allegation, with proof if the allegation be traversed by answer, is necessary to be made; but such authorities seem all to: be in states where laws require such attempts to obtain the consent of the owners to be made prior to suit; we find none which hold thus in the absence of such requirement of statute. Upon principle, we do not see that such allegation or proof need be made. The owner of the properly owes no duty to the would-be taker thereof. He therefore cannot be put in the wrong. No tender is necessary. He cannot be taxed with costs. If the suit be just, and plaintiff prevail, then the law presumes that a just and reasonable compensation will be made to each owner under the direction of the court.

The case of Glass v. Basin Mining & Concentrating Co., 22 Mont. 151, 55 Pac. 1047, cited contra, is not in point, as that case was decided under the law, then in force, requiring a mine owner, under Section 1497, of the Fifth Division of the Compiled Statutes of 1887, to make an attempt to come to an agreement with the owner of certain land over which he wished to run a ditch, before he could exercise his right to construct such ditch over the land, against the will of. the owner, in the way provided by law. In the case before us there is not now, as we have said, any such condition precedent to the bringing of the suit to condemn.

The Political Code of 1895 (Section 4800), prescribing the powers of cities, was amended by House Bill No: 203 (Session Laivs of 1897, p: 203), entitled “An Act to amend Section 4800 of the Political Code relative to legislative powers of cities and to enable cities and towns to acquire by pnrchase, construction or condemnation proceedings water plants, water supplies, franchises, public buildings and sewers.” The phrase, “so as to read as follows,” was used by the legislature in the enactment of the bill. The Act of March 7, 1893 (Session Laws, 1893, p. 113), was one of the Acts enumerated in Sections 5183 and 51S4 of the Political Cede, continuing in force certain Acts or parts of Acts. The subject-matter of the powers of city governments in respect of acquiring water, water plants, water works, and the like, conferred in the Act of 1893 and Section 4800, is covered and revised in the Act of 1897. Bevision of statutes implies .a reexamination of them. A revision is intended to take the place of the law as previously formulated, and operates to repeal it. Where a provision is amended by an Act using the words “to read as follows,” it must be the intention of the lawmakers to make the amendment.a substitute for the old provision, and to have it take its place exclusively. (Sutherland on St. Const. (Ed. 1891), Sec. 154 Territory v. Ashby, 2 Mont, at page 94; Proctor v. Cascade Co., 20 Mont. 315, 50 Pac. 1017.) In the statute of 1897 (Session Laws, 189Y, p. 203), there is not anything requiring such attempt to agree with the owner, and therefore there is no such requirement.

The motion for rehearing is denied.

Denied.


author: MR GIIIE'F JUSTICE BRANTLT

text:
    RAND, Appelant, v. KIPP et al., Respondents.
    (No. 1,463.)
    (Submitted May 7, 1902.
    Decided July 28, 1902.)

      New Trial —- Newly Discovered Evidence ■ — • Due Diligence— Surprise — Appeal.
    1. Where the evidence was conflicting, and the trial court, in mak'ng an order for a new trial, excluded from its consideration the question of its insufficiency, such conclusion will be accepted without a re-examination on appeal.
    2. Where defendant’s affidavits in support of a motion for a new trial for newly discovered evidence in a suit for a balance of account merely stated that due diligence had been used, and it appeared that an inquiry of his codefendent, or an examination of the firm books in his possession, which he said he could not find till after the trial, would have apprised him of all the facts alleged to have been discovered, the motion should have been denied, though the evidence itself was material.
    3. Where the only evidence of surprise was that defendant did not expect a witness to testify as he did, and the evidence with which he proposed to rebut this witness could have been obtained by due diligence, the motion for a new trial should have been denied.

      Appeal from District Courti, Silver Bow County; William Clancy, Judge.

      ActioN by Robert N. Rand against Louis Kipp and Henry Kipp', co-partners doing business as Kipp Brothers. Judgment for plaintiff, and from an order granting defendants’ motion for a new trial, plaintiff appeals.
    Reversed.

      Messrs. McHatton & Goiter, for Appellant.

      Messrs. Campbell & Parr, for Respondents.
    Surprise at the testimony of a witness is not ground for a new trial unless it can be shown that such testimony w>as not true, or that the evidence to be produced on another trial is such as will probably secure a different result. (People v. Jocelyn, 29 Cal. 562;. Charterys Estate, 56 Cal. 470; Pelmas v. Martin-, 39 Cal. 555; Mehan v. Chicago, etc. B. Co., 55 Iowa, 305; Mayfield v. State, 44 Tes. 59; Hull v. Minneapolis St. B. Co., 64 Minn.-402; Stellwagen v. Life Ass’n of America, 14 Blatchf. (IT. S.) 349; Allen v. Young, 6 T. B. Mon. (Ky.) 136; De-Florez v. Baynolds, 16 Blatchf. (-IT. S.) 397; Andrist v. Union Pac. By. Co<., 30 Red. Rep. 345.) The object of a bill of particulars is to prevent surprise on the trial. {Drake v. Thayer, 5 Robt. (N. Y.) 694; 3 Ehcy. P. & P. p. 519.) They have not shown by affidavit or otherwise, which it was their privilege to do, upon the hearing of the motion for a new trial, that the facts set forth in the above affidavits are not true.
    The general principle is, if the unsuccessful party after the trial of the case, finds new evidence of such character as to convince the court that an injustice has been done, and that a new trial will change the result, he is entitled to a new trial. (IFeah v. Calloway, 7 Price, 677; Moore v. Coats, 35 Ohio- St. 177; Ley son v. Davis, 17 Mont. 220.) It is only necessary for respondent to show that the judgment is unjust and that he has a good defense to' the action or a portion thereof, in order that courts will grant a new trial. (Hinman v. Hamilton Paper Co., 53 Wis. 169; Blain v. Shaffner, 37 Ill. App. 394; Hull v. Pining, 17 Wash. 352; Chinn v. Taylor, 64 Tex. 385; Buford v. Bostick, 50 Tex. 371; Stilhvagon v. Life AssJn of America-, 14 Blatchf. (U. S.) 349.) It is more important that justice be done than that progress be made on tbe calendar. (Blain v. Bhajfner, 31 Ill. App. 384; Waugh v. Suter, 3 Ill. App-. 275; Souerby v. Fisher, 62 Ill. 135; Mason v. McNamara), 57 Ill. 274.)
    As to wbat constitutes ordinary prudence, no rules can be laid down as universally applicable, nor is it necessary to1 lay down any rule upon tbe subject as applying. (Guy v. Hanley, 21 Cal. 397.) It is difficult if not impracticable to lay down any precise rule upon tbe subject of new trials; they must depend so much upon tbe nature of tbe controversy, and tbe whole complexion of tbe cause, that no general rule can be laid down without having so many exceptions that it would rather em-barass than- facilitate tbe administration of justice. (Brevard v. Graham, 2 Bibb. (Ky.) 177.)
    A decision .of tbe lower court is usually sustained unless tbe abuse of discretion is manifest. It is well said that as a general rule a trial judge is more capable of correctly deciding whether tbe surprise alleged is induced by oversight, inattention or forgetfulness than a reviewing court. Many matters transpire in tbe conduct of a case in tbe court room which it is almost impossible to present in detail to another tribunal, and of all of which tbe trial judge is necessarily observant. (Green v. Bullc-ley, 23 Kan. 130.) And is now a ground in civil and criminal cases in nearly all tbe states, especially of Montana. (See 1171, Subd. 4, Code of Civil Procedure.) A new trial for this cause will often promote justice and relieve a party from a verdict contrary to tbe real merits of tbe case. (14 Ency. Pleading & Pr., pages 791-796; Ley son v. Dams, 17 Mont. 220.)
   MR GIIIE'F JUSTICE BRANTLT

delivered tbe opinion of tbe court.

Action by plaintiff to recover of tbe defendants, as copart-ners under tbe firm name of Kipp Bros., tbe sum of $485, alleged to be due upon a balance of account for beef cattle sold and delivered to defendants at their special instance and request, with interest from June 1, 1893, for vexatious and unreasonable delay of payment.

Defendant Louis Kipp suffered judgment by default. Defendant Henry Kipp answered, denying specifically all the aver-ments of the complaint. There was a verdict for the plaintiff for the amount claimed, with interest, and judgment was entered accordingly. The defendant applied for a new trial, basing his motion upon newly discovered evidence, surprise, insufficiency of the evidence to justify the verdict, and errors of law at the trial, and exceptions thereto duly reserved. The court granted the motion, basing the order expressly uxion the grounds of newly discovered evidence and surprise. Plaintiff has appealed.

As the court, in making the order, excluded from its consideration the question of the insufficiency of the evidence to justify the verdict, thus impliedly refusing to grant a new trial on that ground; and as it appeárs that there is a substantial conflict in the evidence, and that it was therefore not incumbent upon the court, in the exercise of its discretion, to grant the motion on that ground, we shall accept the conclusion of the court thereon, and not undertake to- re-examine the evidence. (Menard v. Montana Central Railway Co., 22 Mont. 345, 56 Pac. 592; Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481, 18 L. R. A. 124.)

Of the two errors of law assigned, it is sufficient to say that they are wholly without merit, and furnish no justification for the order.

We shall not undertake to set out and analyze the affidavits presented to show newly discovered evidence and surprise. They have reference to certain entries upon the books of the firm of Kipp Bros, in 1892, which were made by the bookkeeper employed by them at that time. The defendant claims that these entries show conclusively that the principal item in the account in action was canceled in 1892. Conceding that the evidence is material, and that it meets all the other requirements necessary to make it sufficient to move the discretion of the court to grant a retrial of-the issues in the case, the affidavits show that by the exercise of due diligence in tbe use of tbe means of knowledge in possession of tbe defendant tbe evidence could easily bave been produced at tbe trial. True, tbe plaintiff states tbe contrary, by way of conclusion; but it is apparent tbat seasonable inquiry of' bis codefendant, or an examination of tbe books used in tbe business, and showing tbe transactions between tbe plaintiff and tbe firm] during several years, would bave put bim in possession of all tbe facts now alleged to bave been discovered since tbe trial. Furthermore, tbe suit is for a balance of account, and, tbougb tbe defendant bad ample notice of this, fact, and tbat a proper presentation of his defense would require an examination of tbe firm books, be does not pretend to bave made an attempt to obtain tbem prior to tbe trial; nor does be state any fact to show tbat tbey could not bave been bad at any time be desired tbem. He contents himself by stating tbat be did not know where tbey were, and could not find tbem until after the trial. So far as tbe record shows, tbe books were in bis possession, and be did not consult or produce tbem because be did not think tbey would be of material assistance.

Courts act cautiously upon such applications, and in order to obtain relief tbe moving party is bound to rebut tbe presumption tbat the verdict is correct, and to make out a prima facie showing tbat be exercised due diligence in tbe preparation of bis case. (14 Enc. PL & Prac. 790, 791.)

Tbe same rule applies with equal force to tbe ground of surprise. Tbe matter of surprise is alleged to bave been tbe testimony of Louis Kipp', who dealt with tbe plaintiff in tbe transactions in controversy. He testified tbat be purchased a large part of tbe cattle in 1892, and tbat tbe firm bad not been dissolved in December, 1893, as was claimed by tbe defendant. Tbe defendant says in bis affidavit tbat be could not rebut this testimony at tbe trial, and therefore allowed tbe bearing to proceed to tbe end. Tbe record does not reveal a suggestion of surprise, or tbat tbe defendant sought a continuance in order to enable bim to meet tbe testimony so given. Tbe only evidence presented upon this point is that be did not expect bis brother to testify as be did, and tbe evidence with which be proposed to rebnt tbe testimony so given is tbe same as tbat wbicb is alleg’ed to bave been discovered since tbe trial. Tbis, as we bave already pointed out, could bave been used, bad reasonable diligence been employed to procure it.

It was therefore an abuse of discretion in tbe trial court to vacate tbe finding of t-lio jury, and to allow a re-examination of tbe issues upon tbe showing made. Let tbe order be reversed at tbe costs of respondent.

Reversed and remarided.


author: MR. JUSTICE, PICOTT

text:
    McDERMOTT MINING COMPANY, Appellant, v. McDERMOTT et al., Respondents.
    (No. 1,420.)
    (Submitted March 6, 1902.
    Decided July 28, 1902.)

      Estoppel — Deed—After-Acquired Title ■— Corporations — Mining Claim — Forfeiture—Purchase by Director.

    1. Compiled Statutes of 1887, Fifth Division, Sec. 207, provides that if any person convey any real estate by conveyance purporting to convey the fee simple, and shall not have the legal estate, but shall afterwards acquire the same, the estate subsequently acquired shall pass to the grantee. In a deed to a mining claim the grantor “granted, bargained, and sold” the same, and the habendum expressly covenanted that the grantor conveyed all right, title, interest, and estate which might thereafter be acquired by any patent issued by the government under the proceedings, previously instituted. Held, that under the statute the words “granted.” etc., (as the court assumes) and under the common law the habendum, were sufficient to estop the grantor from asserting an after-acquired title inconsistent with the title intended to be conveyed.
    2. A deed to a mining claim conveying all the owner’s interest, and all estate that might be acquired under proceedings previously instituted, was in form sufficient to estop the grantor from asserting a title inconsistent with that intended to be conveyed. The grantee failed to do the required representation for a certain year, and did not resume work the next year until a third party had in good faith relocated the claim, and the relocator conveyed to the original grantor. Meld, that such grantor was not estopped by his deed from asserting title under the deed to him from the relocator.
    3. Where a mining claim is forfeited owing to the corporation owning it failing to do the required representation, a purchase of the claim by a director and trustee of the corporation from a relocator, in good faith, does not inure to the benefit of che corporation.

      Appeal from District Court, Granite County; F. H. Woody, Judge.

    ActioN by tbe McDermott Mining Company against Peter S. McDermott, as administrator of tbe estate of Michael McDer-mott, deceased,- and others. Prom a judgment for defendants, and from an order denying a new trial, plaintiff appeals.
    Affirmed.

      Messrs. Rodgers & Rodgers, Mr. Fd. Scharnilcow. Mr. li. P. Napton, and Messrs. Forbis & Evans, for Appellant.
    Tbe question on tbe construction of Section 267 is not new in this state. Tbe question was discussed in Meyendorf v. Froh-ner, 3 Mont. 282. "We also call tbe court’s attention to tbe case of Shreve v. Copper Bell Mining Company, 11 Mont. 300. Chief Justice Blake, after hearing this argument, cited to the contrary tbe case of Kelley v. Taylor, 23 Cal. 11, as sustaining a contrary principle, and then cited and approved Ciarle v. Baker, 14 Cal. 612, and numerous other decisions, laying down tbe rule that we contend for. When we consider that tbe question involved in Shreve v. Copper Bell Mining Company was as to tbe effect of a deed upon different locations, we cannot but conclude that tbe matter has been fully decided by tbe supreme court of this state, and that a deed which purported to convey tbe title to a mining claim conveys any title which tbe grantor may thereafter acquire in any manner to tbe same premises. (Kerdaldie v. Larabee, 89 Am. Dec. 205 ; Dalt'on v. Hamilton, 50 Cal. 422; Vellejo L. Co. v. Viera, 48 Cal. 372-379 ‘,Quivy v. Baker, 37 Cal. 465; De Frieze v. Quint, 94 Cal. 653; Taylor v. Holier, 1 Mont. 708; Alexander v. Sherman, 16 Pac. 45.)
    An abandonment consist of both act and intention. There must be not only tbe act of abandonment — the going away from tbe property — but tbe purpose must be formed not to again return and claim tbe property, and to leave it open to tbe appropriation of others. This cannot be said of tbe company or any of its officers or agents or stockholders. Tbe only act of tbe company which it has been attempted to construe into abandonment is its failure to do the assessment work for 1892. This constitutes forfeiture and has never been held to be abandonment. It lacks the essential element of intention. This principle has been announced in numerous cases in Montana and elsewhere. (Gassert v. Noyes, 18 Mont. 216; Smith v. Hope, 18 Mont. 432; St. Johnv. Kidd, 26 Cal. 264; Moony. Rollins, 36 Cal. 333; Stone v. Geyser Q. M. Co., 52 Cal. 315; Mallett v. Uncle Sam Co., 1 Nev. 188.)
    It is claimed by respondents that inasmuch as the property was not represented for the year 1892, it was subject to relocation by any one; and that its forfeiture by the company terminated the fiduciary relation between it and McDermott, and left him free to locate the property for himself. If this reasoning be correct, then any agent or officer may relocate the property of his principal, after forfeiture. That such is not the correct doctrine all the authorities agree. If it were correct, we cannot imagine a case where the agent might not relocate the forfeited property of his principal, and there would be no authorities holding him as trustee. There must be a forfeiture before there can be a relocation. If forfeiture renders the property subject to be taken by any one, why should we find authorities announcing the doctrine that relocations made by the agents ai*e in violation of their trust relations and are held for the principal’s benefit? The very statement of the proposition answers it. If one who has a duty to perform to his principal may neglect that duty, and then improve the opportunity to benefit himself, through these same acts of neglect or malfeasance, then what the law calls the fiduciary relation between principal and agent is nothing more than a lure set to catch the principal. We respectfully submit that a correct principle has been announced by the authorities upon the question and that the cases are anal-agous with the one under consideration. Of course, there are differences of fact in all cases, but the governing principles must be the same in all. (Lockhart v. Rollins, 21 Pae. 413; Lindley on Mines, Sec. 407; Utah M. Co. v. Dickerl, 21 Pac. 1002, 1009; Largey v. Bartlett, 18 Mont. 265.) Upon the general question of fiduciary character between the trustee and the corporation, and treating generally of acts similar to acts in this case, we cite the court tbe following authorities: Thompson on Corporations, 4009-10-11-12-16-22-23-24-29, 4070-72-73, and also the following cases which are illustrative of the question in this case: Ban Francisco W. Go. v. Patee, 86 Cal. 623; Baleigh v. Fitzpatrich, 43 N. J. Eq. 501; Sargent v. Kansas Middling B. B. Go., 29 Pac. 1063; Tyler v. Banborn, 4 L. R. A. 218, and notes; Bobinson v. Jewett, 116 N. T. 40; Gower v. Anderson, 59 Cal. 119 ; Meeehem on Agency, 454-55-58.

      Mr. D. M. Dwrfee, and Messrs. McGonnell & McConnell, for [Respondents.
   MR. JUSTICE, PICOTT

delivered'the opinion of the court.

This action was brought to quiet title in the plaintiff to the Northwest lode mining claim, and to obtain a decree requiring the defendants to convey the property to the plaintiff. Erom an order refusing the plaintiff a new trial, and from the judgment, these appeals are prosecuted.

The following facts are conceded: Michael McDermott, whose administrator is one of the defendants, owned the Northwest lode claim (not patented) in 1889, and in that year he and others organized the plaintiff corporation, which, on August 14, 1889, purchased the claim, paying to McDermott therefor a part of its capital stock. In the granting clause of his deed, McDermott “granted, bargained, sold, remised, released, and forever quitclaimed” the Northwest lode mining claim* In the habendum and tenendum clause is the following covenant: “It is expressly covenanted that it is intended hereby to convey any and all right, title, interest and estate which may hereafter be acquired to said premises, or any part thereof, by virtue of any patent which may hereafter be issued by the United States government therefor under the proceedings heretofore instituted in that behalf.” It does not appear that a patent was ever issued. Upon the delivery of the deed the plaintiff took possession, and expended $4,000 in working the claim. In June, 1890, the plaintiff, not having been able to find any ore of value, and being without ready mpney, suspended work, closed the mine, and moved the machinery (which it had i*ented) therefrom. In the autumn of that year, one of the trustees of the plaintiff placed with McDermott a small amount of personal property belonging to it, with directions to take care of the same, and to look after the mining claim, his wages to be $25 a month, but he was not employed for any definite length of time. In 1891 the plaintiff caused to be done the annual work necessary to prevent a forfeiture. No work of any kind whatever was done by the plaintiff in or about the claim after 1891. Between June, 1890, and the 23d day of November, 1897, — a period of seven years and four months, — the board of trustees held no meeting and no entries in the books were made. From the. time the plaintiff corporation was formed until the death of McDermott, he was one of its trustees or directors, and during the time the claim was worked he was employed as a common laborer thereon. The representation work not having been done for the year 1892, and work not having been resumed thereon after December 31st of that year, the mining ground became subject to relocation as part of the public mineral domain of the United States. On the 4th day of January, 1893, one Brogan duly located the mining ground in question as the “Shamrock,” and- entered into its possession. Thereafter, ánd on the 28th day of February, 1893, Brogan by deed conveyed the Shamrock claim so located by him to Michael McDermott for the consideration of $5. In August, 1897, McDermott died, and the defendant Peter S. McDermott was appointed administrator of his estate. The other defendants McDermott are the heirs at law of the decedent, and the remaining defendants were lessees having the option of purchasing the claim. In that month the officers of the plaintiff learned that there had been discovered in the claim, a body of pay ore by the lessees; whereupon the board of trustees met in the following November, and a claim of ownership, to the Shamrock lode was made. As we haye said, the foregoing facts are- undisputed.

The contested questions of ultimate fact are: (1) Had the plaintiff abandoned tbe Northwest lode claim! prior to tbe location by Brogan? and, (2) : If tbe claim was not so abandoned, did Michael McDermott, in violation of any duty wbicb be owed to tbe company, allow tbe claim to be unrepresented for tbe year 1892, and cause Brogan to locate it for bis benefit? These questions tbe jury and tbe court solved in favor of tbe defendants, finding tbat tbe plaintiff failed to represent tbe Northwest lode mining claim in 1892, with tbe tbe intention of abandoning it; tbat tbe plaintiff did abandon tbe claim on December 81, 1892; tbat Brogan located tbe Shamrock claim without any intention to convey tbe same to McDermott, and did not make, tbe location for or in tbe interest of McDermott; and tbat McDer-mott was not, during tbe year 1892, tbe agent of tbe plaintiff, charged with tbe duty of seeing tbat tbe annual labor was done to prevent forfeiture.

Did tbe deed from McDermott to tbe plaintiff convey to it tbe title thereafter acquired by him from Brogan, or estop him from asserting, as against tbe plaintiff, tbe title obtained from Brogan? Did tbe title obtained by McDermott from Brogan inure to tbe plaintiff by virtue of any trust relation between Mc-Dermott and tbe plaintiff ?

Tbe rule of tbe common law is tbat when a deed of land contains a covenant of warranty or representation, express or implied, of title, particular or general, in the grantor, who bad not then tbe title so warranted or represented, but afterwards acquires it by descent or purchase, such subsequently acquired title instantly inures to tbe benefit of tbe grantee. Tbe grantor is estopped from asserting such title in bimSelf as against bis grantee; be is not permitted to contradict tbe terms of tbe deed by saying tbat be did not have tbe title which be íepresened or covenanted was his. So tbe practical effect of tbe estoppel is to invest the grantee with tbe title formally acquired by tbe grantor. This doctrine rests altogether upon tbe ground of es-toppel. Except in so far as it bad been modified by statute, it was in force in Montana when tbe deeds in the case at bar were made. Now, at tbe common law, tbe words “grant, bargain and sell,” as they did not imply a covenant of warranty or rept-resentation of title in tbe grantor, could not estop bim from asserting a title which he subsequently acquired. Nor did Section. 285 of the Fifth Division, General Laws, Compiled Statutes, 1887, entirely change the unwritten law in this regard; for the covenants implied by the words quoted are that the grantor has not previously conveyed the same real estate, or any right, title, or interest therein, to any person other than the grantee, and that it is free from incumbrances made or suffered by the grantor or any person claiming under him. But Section 267 provides: “If any person convey any real estate by conveyance purporting to convey the same in fee simple absolute, and shall not, at the time of such conveyance, have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance.” According to the construction of this section in Meyendorf v. Frohner, 3 Montana Reports, 282, and in Clark v. Baker, 14 California Reports, 612, (76 Am. Dec. 449), the rule of the common law as to the effect of deeds under the Statute of Uses upon the subsequently acquired estate of the grantor has been changed thereby, and the words “grant, bargain and sell” serve to convey the after-acquired title. We may therefore assume that, while the granting clause in the deed from McDermott to the plaintiff did not, when tested by the rules of the common law, serve to' estop the grantor, yet that, under Section 267, supra, the clause had the effect of passing to the plaintiff, so long as it held under the deed, whatever outstanding title he might acquire; and we may also assume — though it is unnecessary to do so — that the language in the latter portion of the deed is sufficient, both at the common law and under the statutes, to estop McDermott and his privies from asserting title afterwards acquired by him or them inconsistent with the title intended to be conveyed by the deed. In other words, we may concede that the deed from McDermott to the plaintiff was effectual to convey to it any title which Mc-Dermott might thereafter acquire, provided the plaintiff still lawfully claimed under the deed.

But neither the rule of the common law nor that prescribed by Section 267, supra, has application to the present case. The court found that the plaintiff, with the intention to abandon it, failed to represent the Northwest lode claim in 1892, and actually did abandon it on December 31st of that year. The careful examination to which we have subjected the record enables us to say that the evidence was sufficient to justify this finding. Again: _ Even if there wtas not an abandonment it is admitted that, by reason of the plaintiff’s neglect to represent in 1892, the claim was open to relocation and consequent forfeiture. While it was subject to forfeiture, Brogan located it. The court found that Brogan made the location in good faith for himself, and not for McDermott; that McDermott was not charged with the duty of seeing that the annual representation was performed ; and that there was no agreement or conspiracy between McDermott and Brogan to locate the claim for the former’s benefit; and these findings were justified by the evidence. Abandonment operated, ipso facto, to extinguish the right and de-feasible title of the plaintiff, the claim at once reverted to the public domain, and any qualified person could relocate the ground. If there was not an abandonment, then the plaintiff’s failure to do the representation for 1892, coupled with its failure to resume work in 1893 before Brogan in good faith made his location, constituted a forfeiture, extinguished the plaintiff’s right, reinvested the government with full title, and simultaneously clothed Brogan with the rights flowing from a valid location. In either event — abandonment or forfeiture — the plaintiff ceased to own or have any interest in the claim.

Provided it does not negative the validity or impair the efficacy of the title which he purported to' convey, or violate the covenants in his deed, the grantor, may acquire a title subse1-quently, and assert it against his grantee. (3 Washburn on Real Property (6th Ed.), p. 110, Sec. 1933; Tiedeman on Real Property, p. 551, Sec. 727, and cases there cited.) The purpose of the rules referred to is not to deprive the grantor of the right to become the owner of the property which he has conveyed. Abandonment was equivalent in effect to a deed by the plaintiff surrendering tbe claim to tbe government; forfeiture was tantamount to sucb a deed, and to a grant from tbe government to Brogan conferring upon bim tbe rights and privileges of a locator. Tbe deed from McDermott to- tbe plaintiff conveyed all tbe possessory right which McDermott held in that part of tbe mineral land of tbe United States covered by tbe Northwest lode claim, and also tbe title which McDermott might thereafter acquire by patent issued to perfect tbe title obtained by location and compliance with tbe law; tbe only title outstanding was that of tbe government; tbe plaintiff either surrendered by abandonment or lost by forfeiture, without tbe fault of McDer-mott, its defeasible title; if surrendered by abandonment, tbe estate of tbe plaintiff reverted to tbe government, and was merged in tbe paramount title; if lost by forfeiture through Brogan’s location, there w'as a return and merger, and at tbe same moment of time a grant by tbe government to tbe -new locator. As already observed, by abandonment an unpatented mining claim necessarily becomes part of tbe public domain; by forfeiture it became sucb for an instant only, tbe merger and new grant being simultaneous. Tbe land embraced within tbe claim of tbe plaintiff was therefore part of tbe public mineral lands at tbe time Brogan located tbe Shamrock lode claim. It cannot reasonably be contended that, in tbe absence of fraud, tbe title acquired by McDermott from Brogan passed to tbe plaintiff. If A. (McDermott) conveys land to B. (plaintiff), and B. quitclaims to C. (tbe government), and O. conveys to D. (Brogan), and D. to A. (McDermott), certainly B. (plaintiff) will not be beard to say that when A. (McDermott) ae-quired title from D. (Brogan) it passed to B., or that A. (Mc-Dermott) is estopped. Brogan, having by bis location acquired a title which was good as against tbe plaintiff, lawfully conveyed to McDermott, who acquired tbe title of tbe locator; and the fact that McDermott was at tbe-time a stockholder and trustee or director of tbe plaintiff in nowise lessened bis right so to purchase and bold tbe mining ground. Tbe title obtained from Brogan did not inure to tbe benefit of tbe company.

Tbe evidence was sufficient to justify tbe findings, and tbe latter support tbe judgment. The only questions presented are those which we have discussed. The case seems to have been well and carefully tried by the learned judge of the district court.

The judgment and the order overruling the motion for a new trial áre affirmed.

Affirmed.

Me. Justice Milbuen: I concur.

The Chief Justice, being disqualified, takes no part in the ■foregoing decision.