source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    HELENA & LIVINGSTON SMELTING & REDUCTION COMPANY, Appellant, v. LYNCH et al., Respondents.
    (No. 1,345.)
    (Submitted May 17, 1901.
    Decided July 22, 1901.)

      Mines and Mining — Ditches and Flumes — Bight of Way— Condemnation Proceedings —■ Instructions — Damages — V erdict.

    1. Where, in a proceeding to condemn a right of way, plaintiff alleges title in defendant, a contention that the verdict for damages was not supported by the evidence, because there was no evidence that defendant’s title was valid, cannot be considered.
    2. In a proceeding to condemn a right of way, the verdict assessing the damages will not be set aside, the evidence being conflicting, and there being sufficient to support the verdict.
    3. The fact that the jury found the land taken in condemnation proceedings of greater value than that fixed by the commissioners, and the incidental damages to be $1,100, whereas the commissioners adjudged there were none, does not indicate that the jury were influenced by passion and prejudice justifying interference with the verdict.
    4. tender Code of Civil Procedure, Sec. 1080, Subd. 7, requiring a party desiring special instructions to reduce them to writing, and to request the court to so instruct, alleged errors in omitting to charge on certain points will not be considered in the absence of such a request.
    5. In condemnation proceedings for a right of way over mining claims, it was not necessary for the court — at least in the absence of a specific request therefor — to define the word “prospect,” as used in an instruction, since the term is well understood in all mining districts in the West.
    6. In condemnation proceedings for a right of way for a ditch and flume over mining claims, an instruction, contrary to Civil Code, Secs. 1897-1899, that the right of defendant to the use of any water in the uitch was dependent on an agreement between the parties, was harmless error where there was no evidence to which the instructions could apply.

      Appeal from, District Court, Jefferson Countyj M. II. Par-Tier, Judge.

    Proceeding by the Helena & Livingston Smelting & Reduction Company against John Lynch and another to condemn a right of way for á ditch and flume. From the judgment assessing the damages, the plaintiff appeals.
    Affirmed.

      Messrs. Cullen, Day & Cullen, for Appellant.

      Messrs. McHatton & Cotter, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

Proceeding to condemn a right of way for a ditch and flume over the Pine Tree and Katie Lynch lode claims, situate in Jefferson county. The extent of the area sought to' be appropriated is a strip of land 4 feet in width and 1,421.6 feet in length upon the Pine Tree lode, and 777.5 feet in length upon the Katie Lynch lode. In the order of condemnation the district court appointed three commissioners to appraise the value of the land taken, and to assess the damages. After duly qualifying, the commissioners inspected the premises, heard the allegations and evidence of the parties, and thereupon reported in writing their findings, fixing the value of the way over both claims at $200, and declaring that there were no incidental damages. The defendants, being dissatisfied with the award, appealed to the district court, under the provisions of Section 2224 of the Code of Civil Procedure, and thereafter, upon a trial in the court, a verdict was returned in their favor, fixing the value of the way over the Katie Lynch lode at $100, with incidental damages of $800, and over the Pine Tree lode at $150, with incidental damages of $800. The jury further found that neither of the claims would be benefited by the ditch and flume. From the judgment entered upon the verdict, and from an order denying a new trial, plaintiff has appealed.

1. Counsel for plaintiff have entered into an elaborate argument to demonstrate that the evidence is insufficient to justify a verdict for more than nominal damages. They insist, first, that there is no evidence that the title of defendants is founded upon valid locations under the laws of the United States. The title of the claims was not an issue in the case. In order to maintain this proceeding at all, it was incumbent upon the qflaintiff to allege and show title in defendants. Acting upon this theory, and in order to give the district court jurisdiction to entertain its application, the plaintiff alleged in its complaint that defendants were the owners of the claims, and that they had refused to come to an agreement with it by which it might acquire the proposed right of way by the payment of adequate compensation. Defendants, admitting their ownership and that plaintiff was entitled to a right of way, contested the amount of damages only. Therefore an inquiry into the validity of the title would have been wholly foreign to the issxie before the court, and would have shed no light upon the question of value. In the second place, counsel insist that the evidence fails to show that the claims have any value by reason of mineral deposits actually shown to exist therein sufficient in quantity and quality to warrant the expenditure of time and capital in their development. It is true, the evidence discloses that the claims were, when this proceeding was begun, mere prospects, without sufficient development to have more than a speculative value; nevertheless, their condition was Lilly shown to' the jury, and there was some evidence from which the jury were warranted in finding that they were of sufficient apparent value to justify further development. The evidence further tended to show that the points at which this work could be done most cheaply and conveniently were at the points of discovery, and that the permanent location of the flume and ditch upon the claims would entail much additional cost and inconvenience in the prosecution of development work. The only value a newly-located mining claim has is usually prospective. No person can look beneath the surface and tell its worth; nor can he say from a superficial examination that it is or is not of value. In determining what is its value, its situation and surroundings must be taken into account, and from these, in connection with what actually appears in the superficial openings or outcroppings of mineral-bearing rock upon the- surface with the opinions of those experienced in mining, a conclusion must be reached. This was the theory of the defendants in the trial of this case, and, though there was a sharp conflict in the statements of fact and opinions of the various witnesses, we would not feel justified in saying that the jury were wrong in finding as they did. This statement is especially applicable to the amounts fixed by the jury as incidental damages. There. Avas a great deal of etddence upon the subject of the additional expense AAdrich the defendants Avo-uld have to bear in order to protect the ditch and flume from injury during exploration. The OAAmers of such claims are entitled to work them according to AAdiat, in their oaaui judgment, and that of other experienced miners, is the cheapest and most approved plan, and thus to demonstrate Avhether or not a mine in fact exists therein. An interference Avith this plan by the appropriation of a right of Avay, or the imposition of any other seawitude upon the claim, may or may not, according to circumstances, cast an additional burden of expense upon the OAAmer, which may be considered by the jury in aAvarding damages. In this connection the jury found that the additional burden cast upon the defendants by the presence of the flume and ditch upon their property amounted to the sums fixed by them as incidental damages. "While, under the eAÚdence, the total amount might have been much smaller, or even nothing, yet it also might have been found to be muck larger. That this Court has no power to1 interfere in such a case is too Avell settled to require a citation of authorities.

2. It is said by counsel that, though the conclusion may be justified, upon the Avhole of the evidence, that defendants are entitled to some compensation, the amount fixed by¡ the jury is so grossly in excess of what Avas aAvarded as a fair amount-by the commissioners, and shown by the evidence to be fair and just, that the jury must have been influenced by passion and prejudice. What tve have already said disposes of this contention. While it is true that the jury found the value of the land taken greater than that fixed by the commissioners, and the incidental damages to be $1,100, whereas the commissioners found none, nevertheless the judgment -of the commissioners Avas not the standard by which the jury were to be governed, but the evidence submitted at the trial. The fact that the latter found the land of a greater value than did the former, and that there were incidental damages, though the former judged that there Avere none, does not of itself indicate passion and prejudice, but may fairly be taken as an indication tliat the latter had before them facts for consideration which were not brought to the attention of the commissioners, or considered by them.

Courts are reluctant to interfere with the verdict of a jury, and will not do so; on the ground of excessive damages given under the influence of passion and prejudice; unless it is apparent that their feelings of passion and prejudice have entered into and influenced their decision. Where it is apparent that this is the case, a new trial should be granted, unless it is also appai*ent that the verdict is otherwise correct, and the ends of justice will be fully served by requiring the successful party to remit the excess. In the latter case, however, it should appear that upon the facts the successful party is clearly, and as a matter of law, entitled to a verdict in some amount, and that the prejuclice and passion of the jury have gone no further than to lead them to swell the amount of damages; otherwise, all their deliberations must be deemed to have been permeated by their feelings, and the decision as a whole the result of passion, rather than of their calm, deliberate judgment. There is, as wo have seen, evidence to support the findings of the jury of incidental damages in substantial, instead of merely nominal, sums, and under it these sums might have been greatei*. The findings may, therefore, fairly be said to> be within the purview of the evidence, and not founded upon extrinsic considerations. Under these conditions we do not feel that we should adopt a different view from that entertained by the district court in overruling the motion for a new trial on the ground in question.

3. Counsel criticise the instructions submitted to the jury in several particulars, — among others, in that the court omitted to tell them that the value of the area taken for the way was dependent upon the actual value of the claims as mining claims, the evidence showing that they had no value for other purposes; in that it failed to1 submit to them the question whether the claims were of sufficient value to “warrant a prudent person in expending money thereon with a reasonable expectation of developing” valuable mines therein;.and in that special instructions were not submitted on these points touching the Katie Lynch claim, and also upon the question whether the defendants expected to develop, it.

The evidence was all directed toward an effort to show the value of the claims as mining claims, and not for any other purpose, and it was made apparent thereby that, if the claims had any value whatever, it was dependent upon the probability that upon development they would prove of value as mines. The court submitted instructions, generally informing the jury how to proceed in order to find the amount of compensation to which the defendants might be entitled under the proof. Though they were not told in terms that, if the claims had no value as mining claims, the damages should be fixed at a nominal sum only, they could not possibly have been misled to. adopt any standard of value other than the one plaintiff contends shoxild have guided them. They were told distinctly that the “actual value of the property sought to be appropriated” should be the measure of compensation for all property taken, and this standard they were clearly told should be applied to each claim. Under the statute in this state applicable to civil cases (Code Civ. Proc. Sec. 1080, Subd. 9; Acts 1897, p. 241), the court is required to instruct the jury in all matters of law which it thinks necessary for their information in rendering a verdict. Under subdivision 7 of the same section,- the party desiring special instructions upon any particular subject must reduce them to writing, and deliver them to the court with a request that they be given. Unless this he done, the losing party will not be heard to complain that the instructions are not sufficiently sjDecific, provided the court has correctly stated the law applicable to the facts of the case. (Hayne, New Trial, 120; State v. Broadbent, 19 Mont. 467, 48 Pac. 775; Territory v. Manton, 8 Mont. 108, 19 Pac. 387; Mulligan v. Montana Union Railway Co., 19 Mont. 135, 47 Pac. 795; 2 Thump. Trials, 2341.) So far as the record advises us, the plaintiff did not request specific instructions in the particulars mentioned. It therefore cannot complain that the trial court did not more fully state the law.

It is said by counsel that the court erred in failing to inform the jury as to what is necessary to be done in order to make a valid location of mining claims, and also in failing to define for them the word “prospect,” as used in one paragraph of the instructions. What has already been said as to the other criticisms applies with equal foree to these. Furthermore, the validity of the locations under which defendants claim did not and does not arise in this case. What has been said in the first paragraph of this opinion disposes of this contention. It may also be said that it was not necessary for the court — at least in the absence of a specific request therefor — to define the word “prospect.” This is a term the signification of which is well understood in all the mining districts of the West, and the trial court was justified in assuming that the jury understood it without specific definition.

In paragraph 9 of the instructions the court told the jury “that, under the law, defendants will not have the right to use the water flowing’ in the ditch or flume across the claims belonging to plaintiff without an agreement or understanding with plaintiff concerning the use of the same, and the evidence does not disclose that such agreement or arrangement can be made.” It is said that this instruction is prejudicially erroneous, in that under the statute (Civil Code, Secs. 1897-1899) the der fendants have the right to the use of any surplus water which the plaintiff may have in its ditch or flume, independently of any contract therefor, and that under these provisions the plaintiff had the right to have submitted to the jury the question whether the construction of the ditch and flume upon the claims “would prove of benefit to them, by furnishing a convenient source of water supply, of which defendants could avail themselves in prosecuting the work of development. The instruction is erroneous in saying that the right of defendants to the use of any water was dependent upon an agreement between them and plaintiff. Tinder the statute, supra, if the plaintiff should at any time have surplus water, and the defendants should desire to use it, they could avail themselves of it, even over the objection of plaintiff, by a compliance with the terms of the statute. There was my evidence before the court, however, to which the instruction could apply. It was not shown that the plaintiff at the time of the trial had, or ever would have, any surplus water available for defendants’ use, by contract or otherwise. The jury, therefore, could not have found that the flume and ditch would, for the reason stated, be of any benefit to the defendants’ property. For this reason the instruction should not have been given, but, under the evidence submitted, no harm could result from the exclusion of the whole matter from the consideration of the jury, which, in effect, the instruction complained of does.

The judgment and order appealed from are affirmed.

Affirmed.


text:
    STATE ex rel. ANACONDA COPPER MINING CO. et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,682.)
    (Submitted June 3, 1901.
    Decided August 1, 1901.)

      Mines and Mining — Mining Claim — Location—Surface Rights ■ — Common Law Rights — Supreme; Court — Jurisdiction— Supervisory. Control — Writ of Supervisor Control — Mandamus — Certiorari.
    1. Relators were the owners of patented claims Anaconda, St. Lawrence, Smoke Stack and Rob Roy, and subsequently defendant located the Copper Trust mine on a discovery near the eastern corners of the Smoke Stack and St. Lawrence, alleging that the vein there discovered passed on its strike through the Smoke Stack, the St. Lawrence and into the Anaconda. Defendant’s claim was so located as to include within its lines most of the space included within the Smoke Stack and St. Lawrence, and also a space to -the southwest of these claims and to the east of the Anaconda not included in the surface rights of the three claims through which the vein passed, nor subject to their extralateral rights, but which was within the surface of the Rob Roy. Defendant did. not claim any right to follow the vein to such space, hut that it belonged to him by appropriation. Held, that the ores in such space belonged prima facie to the relators, as owners of the Rob Roy, by virtue of comon-law rights, though no part of the apex was within its bounds, and therefore it was error, in an action by the defendant against the relators for removing ores from such space, to grant him an order for the inspection of relators’ mines, under Code of Civil Procedure, Sees. 1314, 1315, providing that such order may he made “for good cause shown” pending an action for the recovery of a mine.
    2. Quaere: Whether a valid location can be made by a trespass upon the surface of lands to which patent has already been issued.
    3. The owner of a mining claim holds everything beneath the surface, subject only to the right of an adjoining locator or patentee, who has the apex of a vein and who has compiled with the statute, to pursue It on its dip beneath the surface.
    4. Constitution, Art. VIII, Secs. 2, 3, give the supreme court general supervisory control over other courts, under such regulations as may be prescribed by law, and confers power to issue and hear writs of mandamus, etc., and such other original and remedial writs as may he necessary to the exercise of its appellate jurisdiction. Code of Civil Procedure, Sec. 203, declares that, when jurisdiction is conferred on a court, and the course of proceeding is not specifically pointed out, any suitable process conformable to the spirit of the Code may be adopted. Held, that the power of supervisory control was a distinct power, and might be exercised to control the discretion of an inferior court in making' an order from which no appeal would lie, and for which the writs appertaining to the appellate jurisdiction furnished no remedy.
    5. Where defendant sued relators, alleging 'that they were removing ore from certain premises the right to which was in defendant, hut the evidence showed the the prima facie right was in relators, an order granting defendant and his employees right to enter and inspect all of relators’ surrounding mines for the period of 40 days for the purpose of obtaining evidence, being an order not appealable nor subject to control by any of the specified writs within the jurisdiction of the court, it was a proper-case for the court to exercise the power of “supervisory control” over the inferior court, conferred by Constitution, Art. VIII, Sec. 2.
    6. By mandamus the supreme court may coerce into activity, but it may not be used to control discretion or to correct errors.
    7. By certiorari an order made without or in excess of jurisdiction may be annulled or modified when there is no appeal or other adequate remedy; but it cannot be used to correct errors of judgment in the exercise of jurisdiction.
    Application by the state, on the relation of the Anaconda Copper Mining Company and another, for a writ of supervisory control directing the judge of the district court of the Second judicial district of Silver Bow county and another to reverse an order issued in proceedings therein.
    Writ issued.

      Mr. W. W. Dixon, Mr. A. J. Shores, Mr. D. Gay Stivers, Mr. C. F. Kelly and Mr. J. K. MacDonald, for Relators.

      Messrs. Toole & Bach, Messrs. McHatton & Cotter, Mr. J. M. Denny and Messrs. Cullen, Day & Cullen, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

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

The exterior boundaries of the Copper Trust lode are indicated by the heavy lines. This claim overlies the Smoke Stack lode, and most of the surface of the St. Lawrence. It will be noted that all of the claims mentioned, both the Copper Trust and those belonging to the relators, have parallel end lines. All of the claims belonging to relators are held by patents issued at various times up to and including November 2, 1892, when the patent to file Cuerpo Bazzo claim was issued. It will also be noted that some of the boundary lines of the Smoke Stack claim, as originally located, were laid upon and over the surface included .within the lines of the Mountain Yiew and Fairmount, to the north. The patent to the former excludes the conflicting surface. It is admitted by the parties that all of the surface to' the south and southwest of the Smoke Stack claim is covered by the patents of relators. The Copper Trust is an unpatented claim. It was located on April 30, 1899, by virtue of an alleged discovery made on that date in the small triangle, then vacant, which is indicated by the letters A, B, 10 feet in width at the base and extending east between the lines of the Johnstown and Mountain Yiew to its apex, a distance of 75 feet. The only other ground embraced within the limits of the Copper Trust not covered by the relators’ patents is a small triangle at the point C, between the east end line of the Mountain Yiew and a claim known as the Sullivan, lying immediately to the east. It does not appear whether there is any apex within the exterior boundaries of the triangle last mentioned. The contention made by O’Connor was and is that the vein thus discovered in the.first triangle mentioned dips to the south at an angle of about 70 degrees, and passes on its strike through the base of the triangle into the Smoke Stack claim, thence across its south side line into the St. Lawrence, and thence into the Anaconda claim across the west end line of the former at the point D, about 150 feet north of the intersection of this line with the east end line of the latter at the point Gr. The course of it, under this contention, is indicated approximately by the position of the letters B, A, E, D. O’Connor further contends that under the Copper Trust location he is entitled not only to the surface within his boundaries not covered by the relators’ patents, but also' to all portions of the lead having their apex therein, as well as to those parts, of it which, though they have no apex within his. surface, are so situated with reference to the end lines of relators’ claims that the relators may not assert title to them by virtue of their extralateral rights. In other words, it is asserted that the relators have no extralateral rights upon this vein, either through the Anaconda or the St. Lawrence, south of the intersection of the end lines of these claims at G, and within the triangular portion of the earth included between the vertical planes passing downward through these lines extended in their own direction indefinitely toward the south. Lie contends, therefore, that, inasmuch as the relators, in making their locations, did not so lay their lines with reference to the strike of the vein that they could follow it on its dip into this portion of the earth by virtue of their extralateral rights, they failed to appropriate it at all; that it was thus left to be appropriated by any other claimant; and that it belongs to the plaintiff under his location. The position of the relators is that, though they do not have title to the ores in the ground in question by virtue of extra-lateral rights through the St. Lawrence and the Anaconda, they nevertheless own them, as against O’Connor, at least, by virtue of their common-law rights to the surface and everything beneath, because neither O’Connor nor any one else owns any part of the apex of the vein, which is so situated that extralateral rights through such portion may be asserted to anything beneath the surface owned by them. . Therefore, they say, O’Con-nor has shown no right to any part of the ores in controversy such as to authorize the court to grant an order permitting him to make the inspection and survey sought.

Upon the facts presented, the court overruled the contention of the relators, and granted the order as prayed. Under it O’Connor was granted the right to enter into any or all the underground workings in all the claims mentioned belonging to the relators to the south and west of the Smoke Stack claim for the period of 4-0 days; to employ six engineers and assistants to conduct the work of survey and inspection; and to demand, at reasonable times, of the relators, that he and his said engineers and assistants be lowered into the mines and hoisted therefrom to the surface whenever he and they should require the same to be done.

The relators, by a verified petition setting forth all the1 proceedings, including the pleadings in the cause, and all the evidence submitted by the parties, and alleging that O’Connor had not brought his action or made his application to the district court in good faith, applied to this court for relief, asking that this court issue a writ, under its constitutional powers of supervisory control over the inferior courts of the state, directing the district court and its judge to set aside and vacate the order, and to deny the application for an inspection and survey.

The theory of the relators is that upon the facts the district court abused its discretion, and acted arbitrarily, and in plain violation of the legal rights of the relators, in granting ihe order, and that they are without redress by any other means known to the law.

Under an order to show cause, issued by this court, the respondents appeared by filing an answer denying the charges of bad faith on the part of O’Connor, and also a motion to dismiss the application on several grounds. At the hearing three propositions were urged as conclusive reasons why this court should not interfere, namely: First, because, under our constitution, the power of supervisory control lodged in this court is not self-executing, and the legislative branch of the state government is alone vested with the power to prescribe regulations and limitations under which it may he exercised; second, because the legislature has done so by adopting the only writs allowed by the constitution, except in appellate matters, and because this court is limited to the use of'them as thus defined; and, third, because, if, under our constitution, the powers of this court can possibly extend the operation of these writs, or any of them, beyond the limits prescribed by law, no such grave emergency exists in this case as would justify it in thus using any of them.

From an analysis of these propositions it appears that two, and only two, questions are presented for decision, namely: Was the action of the district court in granting the order erroneous ? and: Can this court afford relief, and, if so, what is the proper remedy? We shall consider these in their order, and, incidentally, also the further question whether, if the order is found to have been erroneous, the circumstances present such a case as will justify this court in using any remedy which ic may deem available.

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

“Sec. 1314. The court in which an action is pending for the recovery of real property or mining claims, or for damages for an injury or to quiet title or to determine adverse claims thereto, or a judge thereof, may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter into or upon the property or mining claim, and make survey or measurement thereof, or of any tunnels, shafts, or drifts therein, for the purpose of the action, even though entry for such purpose has to1 be made through other lands or mining claims belonging to parties to the action.
“See. 1315. The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter the property, with necessary surveyors and assistants, and make such survey and measurement; but if unnecessary damage be done to the property, he is liable therefor.”

The purpose of these sections, and a similar provision, found in Section 1317, which, by its terms, seems to apply to cases where no action is pending, but contemplated only, is to enable either of the parties to a controversy over real property, when it is in the possession of his adversary, upon showing that the circumstances of the case require it, to have an examination and survey of it, to the end that he may be put in possession of all the facts touching the controversy, and thus to furnish them to the court, so that the respective rights of the parties may be properly determined. So wholesome and necessary are the means thus afforded litigants to properly present their rights to the tribunal administering upon them, that it is not surprising to find that these inspection orders have often been made by the courts, both in this country and in England, even in the absence of special statutory authority, tinder their general powers as courts of equity. An inquiry into the origin and purpo'ge of the rule embodied into the statute, with citation and examination of American and English cases, will be found in St. Louis Min. & Mill. Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, and in the same case, affirmed on writ of error by the Supreme Court of the United States, in 152 U. S. 160, 4 Sup. Ot. 506, 38 L. Ed. 398. The sections of the statute go no further than to declare the rule as it has existed for many years, except that by their terms they extend the rule to all courts, whether sitting as courts of law or equity. It is not our present purpose, however, to discuss the propriety of the legislation. We refer to the statute, and the cases in which the rule has been applied, to show that the district court had ample authority to make the order in question, provided the facts presented at the hearing justified it. Indeed, the order, upon proper showing, is always made almost as a matter of course. The purpose of the statute is to serve the interests of justice, however, and not to be made an instrument of injustice or oppression. Under it the court may not, without a reasonable showing, and in disregard of the rights of the party in possession of the property, or in control of the means of access to it, permit his adversary to1 enter upon it, merely because he desires and asks for an order permitting him to do so. The law must be administered in the spirit of liberality to< accomplish the desired end. Purely technical and captious objections should not be tolerated. The language of the statute is, “for good cause shown,” and, under the rule laid down in St. Louis Min. & Mill. Co. v. Monatna Co., supra, whenever the order is made without good cause, it must follow that it is an infringement on the rights of the party in possession, and may be set aside as unauthorized; otherwise, the power of the court could be exercised without restraint, and to the great injury and oppression of the party in possession.

AVitli til ese preliminary observations we proceed to determine, from a consideration of the facts presented to the district court, whether the order complained of was justified. O’Connor does not assert title to any other surface within the boundaries of the Copper Trust claim than the two triangles already mentioned. It is not controverted in this proceeding that the relators are entitled, under their patent, to SO' much of the vein found within the surface of the triangle A, B, as passes on its strike through the Smoke Stack, the St. Lawrence, and the Anaconda claims, and that in following this vein on its strike to the southwest O’Connor cannot'pass beyond the east end line of the Smoke Stack. Indeed, this is apparent from an inspection of the plat. The parallelism of the end lines of the Smoke Stack and St Lawrence also gives to the relators the right to follow the vein to the south on its dip beyond the vertical planes of the side lines of these claims. Under the Smoke Stack claim the extralateral rights are bounded by the vertical plane of the east'end line of the Smoke Stack and St. Lawrence and a parallel vertical plane passing through the point at which * the vein crosses the south line of the Smoke Stack into- the St. Lawrence. The extralateral rights of the St. Lawrence are hounded by the vertical plane last mentioned and a vertical plane passing downward through the west end line of this claim, for it appears from an inspection of the plat that the area of the surface conflict between the Anaconda and the St. Lawrence belongs to the St. Lawrence claim. It follows, further, as a necessary conclusion, that, so far as O’Con-nor has any right to follow this vein on its dip from that portion of the apex found within the boundaries of the triangle A, B, this right is limited toward the west by the vertical plane of the east end line of the Smoke Stack and of the St. Lawrence, extended in its own direction. The situation presented by the position and course of the apex, with reference to the lines of these claims and the rights dependent thereon, have been considered and determined by the following cases: Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 273, 30 L. R. A. 803, 52 Am. St. Rep. 665; Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Clark v. Fitzgerald, 171 U. S. 92, 18 Sup. Ct. 941, 43 L. Ed. 87; and Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326; and all questions arising thereon are now too well settled to admit of further discussion. It is of no moment to-inquire what are the extralateral rights of the relators through the Anaconda claim. No part of the surface of that claim is embraced within the boundaries of the Copper Trust, and therefore we shall not stop to consider them, except to remark that, whatever rights the relators have to follow the vein on its dip from the point where the apex passes into that claim, they cannot extend further 'east than the vertical plane of its east end line. Stated succinctly, the question to be determined is: What right, if any, has O’Connor, by virtue of the Copper Trust location, to assert title to the ores lying underneath the earth within the triangle the apex of which is at G? He does not contend that he has any right to follow the vein from the part of the apex within the triangle A, B, through the intervening-space, about 1,300 feet, either on or beneath tire surface of the St. Lawrence. As we have already stated, his claim is that, as no part of the 'ore bodies in controversy is situated within the surface boundaries of the St. Lawrence claim, no part of them belongs to that claim, and, as the relators may not claim this portion of the vein through the St. Lawrence or the Anaconda by means of their extralateral rights, they were 'not, in contemplation of the mining laws, appropriated by the relators through any of their locations, and therefore belong O’Con-.nor by appropriation under the Copper Trust, although he has no part of the apex by which he may follow the vein on its dip from the surface. In support of his contention, counsel for respondents cite the Del Monte Case, supra, as decisive. We do not so understand it. Among other questions decided in. that case it was distinctly held that any of the lines of a junior location may be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights nor in conflict- with any rights of the senior location. The question presented here did not arise, and was not decided. Referring to the diagram used to illustrate the contentions of the parties and the different directions of the lines pointed out in the opinion, it appears that upon an extension of the vertical plane of the north end line of the New York claim in its own direction a triangular portion of the vein would be left between it and the vertical plane of the line bounding the extralateral rights of the Last Chance to the south, entirely beyond the vertical plane of the surface lines of any of the conflicting claims. The court says, with reference to the title to this portion of the vein: “In other words, referring to the first- diagram, the inquiry is not whether the owners of the Last Chance-have a right to pursue the vein as it- descends into the ground south of the dotted line r, s, even though they should reach a point in the descent in which the rights of the owners of the New York, the prior location, have ceased. It is obvious that the line e, li, the end line of the New York claim, extended, downward into the earth, will at a certain distance pass to the south of the line r, s, and a triangle of the vein will be formed between the two lines, which does not pass to the owners of the New York. The question is not distinctly presented whether that triangular portion of the vein up to the limits of the south end line of the Last Chance, b, c, extended vertically into the earth, belongs to the owners of the Last Chance or not, aud therefore we do not pass upon it. Rerhaps the rights of the junior locator below the surface are limited to the length of the vein within the surface of the territory patented to him, but it is unnecessary now to consider that matter. All that comes fairly within the scope of the question before us is the right of the owners of the Last Chance to pursue the vein as it dips into the earth ■westwardly between the line a, d, t, and the line r, s, and to appropriate so much of it as is not held by the prior location of the New York, and to that extent only is the question answered. The junior locator is entitled to have the benefit of making a location with parallel end lines. The extent of that benefit is for further consideration.” The court does say, as. defendants claim, that the portion of the vein referred to does not pass to the owner of the New York. Obviously, this is a correct conclusion, for, under no circumstances, would the ex-tralateral rights of the Ncav York extend northward beyond the vertical plane of its north end line1. AVith equal distinctness is the question of the rights of the Last Chance to any of that portion of the vein reserved. NoAvhere in the opinion do Ave find any support for the contention that the junior locator acquires any right to any portion of a vein beneath the surface of the senior location by laying his lines upon, OAmr, or across its surface, except that by this means he may secure parallelism of his end lines, • and, through this parallelism, extralateral rights to the extent of the length of the vein found Avithin the surface for Avhich he may receiAre patent. AVe doubt seriously Avhether the court intended to be understood as declaring it to be the law that a jnnibr locator may lay his lines, in part or Avholly, upon and over the surface of claims already patented, and secure any rights thereby. After patent has issued, the legal title to the land conveyed by it has passed AAdiolly from the government. The holder of this title is Avholly beyond the jurisdiction of the land department; and it Avonld.seem that no one can initiate by trespass upon his tract any right whatever, Avhether it be committed ignorantly or nqt. It does not appear distinctly from the opinion in the Del Monte Case whether any of the claims were patented at the time the conflict arose. If' the laAv is as counsel contend, then a patent does not convey an absolute estate, but only a qualified fee, and leaves the land still subject to some rights in the government, — a doctrine for Avhich there seems to be no warrant in the statute. So long as land is not patented, the legal title is still in the government; and it may be argued AAdth some force that, AAdiile held under & location merely, it is still within the jurisdiction of the land department, and for that reason it is within the province of its authority to say that a junior locator may lawfully go upon it, and mark his boundaries and erect his monuments upon its surface, in order to initiate rights in lands not covered by it. This seems to be the theory upon which the court proceeds in the Del Monie Case; for the argument' upon which its conclusion on this point in the case is based is found on pages 73-85, 171 U. S., pages 902-907, 18 Sup. Ct., and pages 80-84, 43 L. Ed., and nowhere therein do we find any reason stated which would apply with any force to locations made by a trespass upon the surface of lands to which patent had already been issued.

The only authority called to our attention which distinctly sustains the contention of counsel as to the validity of the Copper Trust location is the decision in In Be Ilidee Gold Min. Co... rendered by Secretary Hitchcock on January 30, 1901. In this decision the secretary distinctly sustains the contention of counsel for the defendants on this point. We quote from the headnote of his opinion: “The location lines of a lode mining claim are used only to describe, define and limit property rights in the claim, and may be laid within, upon or across the surface of patented lode mining claims for the purpose of claiming the free and unappropriated ground within such lines and the veins apexing in such ground, and of defining and securing extralateral underground rights upon all such veins, where such lines (a) are established openly and peaceably, (b) do not embrace any larger area of surface, claimed and unclaimed, than the law permits.” Even he limits the validity of such locations to cases where the lines are established openly and peaceably. We do not understand, however, how the United States government may convey any right to lands by consent of an adjoining owner under patent, which it could not convey without such consent. As we have said, we have grave doubts as to the soundness of the conclusion of Secretary Hitchcock. Hut conceding, for the present discussion, that it is the law, there is nothing in the Del Monte Case nor in the opinion of the secretary to support the contention of counsel that O’Connor acquired by his location of the Copper Trust ownership of any part of the vein in question which underlies the Rob Roy claim, or any of the claims to the south. In the Del Monte Case the extralateral rights claimed ‘by the Last Chance were asserted as to that portion of the vein the apex of which was found within that part of the surface of the Last Chance not covered by any previous location. The case goes only to the extent of deciding that, as the Last Chance had parallel end lines, and the vein passed through them, it had extralateral rights as to that portion of the apex not covered by either of the other conflicting locations. The Ilidee Case involved only the validity of a location the lines of which were laid upon, over and across the surface of the claims already patented, so as to secure all • the rights appertaining to the unappropriated intervening surface. Certain expressions found in these cases in which reference is made to underground rights would seem to lend support to the contention of counsel, but, when they are considered in the light of the particular rights under discussion, they have no pertinency to the question presented in this case. The same may be said of Crown Point Mining Co. v. Buck, 38 C. C. A. 278, 97 Fed. 462. Suppose, for instance, there had been no vacant surface within the boundaries of the Copper Trust location, would it be contended for a moment that O’Connor has any rights whatever under it? A discovery of a vein upon unoccupied land is absolutely essential to the validity of a location. There must be a surface right; without this no right to the lode can be established. The statutes do not authorize the land department to convey a lode independently of the' surface ground connected with and containing or overlying it. This is the conclusion stated by this court in Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 20 Mont. 337, 51 Pac. 159, in a case in which the plaintiff claimed under a patent which attempted to convey a small portion of surface covered by the Rams location, together with 1,318 linear feet of the lode, which had its apex in, and underlay the surface of, the Johnstown, a conflicting claim. The patent, was held to be unauthorized and void as to. the portion of the ledge not underlying the surface conveyed by it. This court said: “It is no doubt true that those statutes, taken as a whole, give greater prominence verbally to the lode or vein than to the surface connected therewith; but this naturally results from the fact that the lode is the main subject treated. Such expressions and such prominence, however, cannot avail to permit the grant of lodes or veins embraced in a located quartz claim, regardless of the surface connected therewith.’’ The same view is stated by Mr. Lindley in his work on Mines in section ISO. It is only by virtue of an apex found within the surface of any claim having parallel end 'lines that an owner may assert the right to enter beneath the surface of his neighbor. This is the evident meaning of Section 2322 of the United States statutes. Neither this section nor any other provision of the statute authorizes, or provides a way for the appropriation of any portion of a lode without some portion of the surface through which it may be reached. Should a patent-issue to O’Connor, under the Del Monte and Hidee Canes it would issue for the whole surface within the Copper Trust boundaries, excluding all those portions covered by the relators’ patents. Under the principle of the case of Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., supra, and as stated by Mr. Lindley, this would ipso facto exclude the ore bodies lying within the disputed triangle. Again, the title to a mining claim carries with it all the rights incident to a title in fee at the common law, except in so far as it is enlarged or limited by the statute. This court, in Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 61 Pac., at page 329, in considering such rights, said: “The patent grants the fee, not to the surface and ledge only, but to the land containing the apex of the ledge. The right to follow the ledge upon its dip between the vertical planes of the parallel end lines extending in their own direction, when it departs beyond the vertical planes of the side lines, is an expansion of the rights which, would be conferred by a common-law grant. On the other hand, this grant is subject to the right of an. adjoining locator to follow .his vein upon its course downward beneath the surface included in the grant- In these two respects only do the rights conferred by the statute differ from those held under a common-law grant.” Therefore, viewed merely as land with the ordinary incidents of ownership, the .owner holds everything beneath the surface, subject only to the right of an adjoining locator or patentee, who has the apex of a vein, and who has complied.with the statute, to pursue it on its dip beneath the surface. O’Connor has no part of the apex of the vein so situated with reference to the ore bodies within the triangle that he may pursue the vein from the surface. He cannot acquire any portion of the surface belonging to the relators; neither can he pass through the St. Lawrence from the point at which he made his discovery, or from any point within any of the surface owned by him. He is therefore not in a position, by virtue of his location, to maintain Ms claim to the ores in controversy. Under the principle of Parrot Silver £ Copper Co. v. Ileinze, supra, and upon the undisputed facts presented upon this application, they belong prima facie to the relators, as owners of the Rob Roy claim, and others to the south by virtue of their conunon-law rights. See, also, Calhoun Gold Min. Co. v. Ajax Gold Min. Co. (decided May 27, 1901), 182 U. S. 499, 21 Sup. Ct. 885, 45 L. Ed. —. It thus appears that the order of the district court, based, as it was, upon a state of facts showing prima facie that O’Connor has and can have no interest in the property which he seeks to inspect, was not justified.

This brings us to the consideration of the question: What remedy, if any, may this court afford ? Counsel for defendants have filed an. elaborate brief, in which they challenge the power of this court to interfere. ’ They argue with much force that, though this court has, under the constitution, the power invoked in this proceeding, it can be exercised only “under such regulations and limitations as mar be prescribed by law;” that the authority to issue the six original writs enumerated in the constitution and defined by the Code is a denial of the power to issue any other writ; and that the power invoked must he exercised, if at all, under some one of these writs as they have been defined by the statute. In State ex rel. Whiteside v. District Court, 24 Mont. 539, 03 Pac. 395, we endeavored to point out, by what we deemed, a proper construction of Sections 2 and 3 of Article YII1 of the Constitution, that under that instrument there are four distinct grants of power, viz., appellate jurisdiction, a general supervisory control over all inferior courts, discretionary power to issue, hear and determine the various original writs enumerated, and the power to issue, hear and determine such other original and remedial writs as may be necessary to the complete exercise of the appellate jurisdiction. We also endeavored to define and point out the functions of these various powers so that each might be assigned its. appropriate office within the purview of the constitution, and at the same time not to be permitted to encroach upon the functions of any other. The offices of the original writs authorized were discussed and defined, and it was pointed out that they were put into the hands of this court for prerogative uses, and not as aids to1 the appellate jurisdiction; following the previous decisions of this court in In re MacKnight, 11 Mont. 126, 21 Pac. 336, 28 Am. St. Rep. 451, and State ex rel. Clarke v. Moran, 24 Mont. 433, 63 Pac. 390. It was further pointed out that these writs are not adapted to supervisory uses, for that they may not properly be wrested from their well-known and well-defined uses at the common law, which were inherent in them as adopted into the constitution. The power of supervisory control was discussed, and a tentative definition of its functions laid down, so that it might not be confounded with the other powers granted, and the clause granting it be thus rendered meaningless. The means at our disposal for its exercise were likewise discussed, and it was found that the legislature, so far as action by that body was necessary, had provided such means.

After studying tlio argument of the learned counsel in this case, and upon further consideration of the subject, we are confirmed in the conclusions reached in that case, not only that the power is distinct and independent of any other power granted, but that, from its nature, it must be exercised by means of instrumentalities distinct from those by which the others' are made available. Counsel would have us conclude that the power must, be exercised through the writ of mandamus, certiorari, or some other one of the original writs enumerated, because the constitution has authorized these writs, and they have been defined by law. A complete answer to this position is found in the proposition — the correctness of which is apparent upon a moment’s consideration — that, in so far as this court can use these as original writs, it is entirely free from limitation or control by the legislature. The power to issue and to hear and determine them is lodged entirely within the discretion of this court, subject only to the limitations fixed for them in the constitution itself, or by usage at the time the constitution was adopted. (State ex rel. Scharnikow v. Hogan, 24 Mont. 379, 62 Pac. 493.) For this court to recognize any other limitation would be a violation of its duty to tire same extent as if it should usurp powers not granted to it. Further than this, if we should sustain counsel in their position, the result would be to confound what they admit are two separate grants of power by assigning to the one the functions of the other.

Counsel suggest that the construction and application this court has given to Section 205 of the Code of Civil Procedure in State ex rel. Whiteside v. District Court, supra, amounts to a usurpation of power on the part of this court, in that, by holding that this section leaves this court to adopt its own procedure and process, the court has assumed to declare the “regulations and limitations” under which the power may be invoked and exercised, — 'a function wdiich belongs exclusively to the legislature. The section referred to provides: “When jurisdiction is, by the constitution or this Code, or any other statute, conferred on a court or judicial officer, all the means necessary to cany into effect are also given; and in the exei*eise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this (''ode.” The fault, if any, to bo found with this provision is chargeable to the legislature, and not to this court.. The legislature may not have- enacted the wisest measure in thus leaving it to this court to adopt its own procedure and process, still this court may not be justly charged with going beyond its powers if its seeks to execute the will of the legislature as thus declared. We are satisfied with the construction given the section cited, deeming it a sufficient declaration of the legislature to authorize the use of the power in its utmost vigor.

The statute does not provide any appeal from the order, and, if any relief is to- be obtained, it must*be granted by an exercise of the power invoked. Neither mandamus nor certiorari will lie. By the former this court may coerce into activity, but it may not he used to control discretion, or to- correct errors. By the latter an order made without or in excess of jurisdiction may be annulled or modified when there is no appeal or other adequate remedy. It cannot be used to correct errors of judgment in the exercise of jurisdiction. It could not. be invoked to annul the order in question, for the reason that the order was made in the exercise of jurisdiction. The district court is authorized by law to hear all such applications, and to determine the question presented, namely, whether the showing made is sufficient. Necessarily, it also has the power to decide wrong as well as right.

Do the circumstances of this case show such an emergency as to warrant interference by this court ? Unless the order be set aside, it will be executed at once. An appeal from a final judgment in the case would he ineffectual. By that time the relators will have been subjected to all-the burdens of expense and inconvenience incident to the execution of the order. By its terms, O’Connor and his employees are for forty days permittecl to enter and inspect and survey any or all of the workings of the relators, whether in the claims adj acent to or remote from the ore bodies claimed by him; and that, too, in face of the fact that upon his showing he has no interest to be protected thereby. Counsel say that, even if this be the case, yet no great harm will be done. This may be true; nevertheless, the order, without lawful reason, puts the property of the relators practically under the power of O’Connor, to be used at his pleasure for forty days, and compels the relators to furnish him with the means of ingress and egress at such times as he may reasonably require. Every citizen holds his property subject to the poAver of the state to prescribe' reasonable regulations for the protection of the property and rights of others. This principle must always be recognized and enforced. The statute is itself a recognition of it, and, A\dien properly applied, is a rvliolesome means for its enforcement. When misapplied, it becomes, as in this instance, a means of injustice and oppression; and a refusal by this court, with the vieAvs Ave entertain, to use its poAver to prevent the threatened wrong, would be a betrayal of the trust reposed in it by the constitution.

A Avrit Avill therefore issue, under the seal of this court, in the form of a peremptory order directing the district court and its judge to set aside the order made and entered on May 20, 1901.

Nothing Ave haAre said in this opinion is to be construed as a final adjudication of the rights of the parties in the case of O’Connor against the relators. What Ave liaAm said is upon the undisputed facts as they appear in this record.

Writ granted.