author: ME. JUSTICE MILBUBN, Mb. Justice Holloway:

text:
    COOK & WOLDSON, Respondents, v. GALLATIN RAILROAD COMPANY, Appellant.
    (No. 1,557.)
    (Submitted April 30, 1903.
    Decided July 20, 1903.)

      Quantum Meruit — Special Contract — Breach—Bight to Sue— Pleading ■— Replication — Judgment — Evidence — Bill of Particulars — Question for Jury — Instructions'.
    1. Plaintiffs sued defendant on a quantum meruit for services rendered in delivering certain ties. Defendant denied liability on the ground that the ties were delivered under a contract in writing with which it was alleged plaintiffs had not complied, and plaintiffs by replication admitted that there was a contract in writing, but denied that it contained the entire agreement or that defendant had performed its obligations, and alleged a ■ separate agreement by which plaintiffs were to receive extra pay for hauling ties a greater distance than that provided for in the .contract. Meld, that the allegations of the replication were a mere explanation of plaintiffs’ denial of the answer, and not a statement of a new cause of action entitling defendant to judgment on the pleadings.

      2 Where plaintiffs contracted in writing to haul and distribute along defendant’s railroad 40,000 ties, for which plaintiffs were to be paid on the 15th of each month, and defendant failed to make payment for hauling as required, plaintiffs were entitled to refuse to make further deliveries, and sue at once on a quantum meruit for ties delivered.
    3. Where, in a suit on a quantum meruit for hauling ties, defendant claimed that the ties were delivered under an express contract which plaintiffs had not performed, and plaintiffs by replication admitted the making of such contract, but alleged that defendant had broken the same and that it was subsequently agreed that plaintiffs should receive extra pay for hauling ties an extra distance, evidence as to the number of ties hauled beyond the limit was not objectionable on the ground that the only contract pleaded in the complaint was the written contract referred to in the answer.
    4. Where suit was brought on a quantum meruit for ties delivered under a written contract which defendant had broken, evidence that plaintiffs had not hauled all of the ties required by such written contract was properly excluded.
    5. Where, in an action on a quantum meruit for hauling railroad ties, defendant set up damages for delay and interruption of track laying, etc., particularly averring the year, month, and days, on which the delays occurred, questions asked in support of such counterclaim, not referring to the dates specified, were properly excluded.
    G. In an action for services in delivering ties to a railroad company, defendant was not entitled to recover, by way of counterclaim, damages for delays alleged to have occurred after the suit was commenced.
    7 Where, in an action to recover the wages of a watchman appointed to guard a certain railroad camp, the evidence would have warranted a finding that defendant’s vice president and general manager had never agreed to pay for the watchman, and there was nothing to show how many days the watchman worked, etc., whether the amount sued for was a reasonable and proper allowance for his services was for the jury, and it was therefore error for the court to charge that if the jury believed the plaintiffs-evidence their verdict should be for the plaintiffs in the amount sued for, and if they did not believe plaintiffs’ evidence they should find for defendant.
    Sin. Justice Hollowax dissenting.

      Appeal from District Court, Gallatm County; F. K. Armstrong, Judge.

    AotioN by Cook & Woldson, copartners, against tbe Gallatin Railroad Company. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.
    Reversed in part.
    STATEMENT OE THE CASE.
    This cause is on appeal from tbe judgment in favor of tbe plaintiffs, and from an order denying a motion for a new trial. Plaintiffs sought- to recover on each of four causes of action. Only the first and fourth causes of action are before us, as the plaintiffs accepted the amount admitted by the defendant to be due on the second cause, and the full amount demanded on the third cause of action was confessed. The action on the first cause was for $2,302.50, alleged to be the reasonable value of services rendered in hauling ties for the defendant between Noj vernber 1, 1898, and December* 31, 1898. On the fourth cause of action plaintiffs sued for $31.50' for services of a watchman/ which sum defendant was alleged to have promised to pay.
    A demurrer to each cause of action for want of substance was overruled. Defendant filed an amended and supplemental answer, setting up1, as to the first cause of action, that plaintiffs hauled 21,809 ties under a contract in writing, which we gather from the answer was intended to cover the delivery of about 40,000 ties. The defense was that the express contract provided for delivering and distributing along defendant’s track enough ties to “half-tie” and “full-tie” between certain “stations” respectively, and that plaintiffs had not done so, and that defendant, by reason of the failure of plaintiffs to haul and deliver the ties, had been delayed and damaged in the sum of $219.93 by delay of locomotive and crew used in picking up and distributing ties, and the further sum of $10,000 for loss of earnings which it could and would have made if the road had been finished in time. The hauling was to be paid for at the rate of ten cents per tie, and “estimates to be put in on the first and payments on the 15th of each month.” Defendant denied all the allegations of the complaint as td the fourth cause of action.. Defendant averred that there was not any other agreement for hauling ties. The replication admitted the making of the contract in writing, and denied “that there never was any other contract for the hauling * * * of any ties by plaintiffs for the defendant, but, on the contrary, allege that after the execution and delivery of said written contract the defendant * * * agreed * * * to allow them for hauling ties a greater distance than was provided for * * * in said, contract,” and, further replying, alleged that they bad complied with all and singular the terms of said express contract, and bad delivered and distributed the ties in accordance with the terms thereof.
    Judgment on the pleadings as to. the first cause of action was prayed for and denied, and the cause was tried before the court sitting with a jury. Evidence was introduced by plaintiffs, over objection of defendant, tending to show that they had hauled 1,216 ties an extra distance, for which they claimed compensation at the rate of 20 cents per tie. . The court, sustaining the objection of the'plaintiffs, refused to allow the defendant to show, by cross-examination or otherwise, that the contract had not been fully completed by the plaintiffs according to the terms thereof, for that the suit was on a quantum, meruit, and not upon the express contract, and it was admitted by all parties that all the ties required by the contract to be delivered had not been hauled and distributed. The court excluded testimony offered by the defendant upon its first counterclaim above, and excluded testimony in support of the second counterclaim. Judgment was entered for the amount of the verdict in favor of the plaintiffs, to-wit, in the sum of $2,807.20, the jury having allowed the plaintiffs the full amount claimed on the first and fourth causes of action, and the amounts admitted by defendant to have been due on the second and third causes. There was not any point made in the court below as to the verdict, and there has not been any such point made on appeal.

      Mr. John A. Luce, for Appellant.
    . The motion for judgment on the pleadings should have been sustained, after the admission that the work was done under the • written contract as set up in the answer, for three reasons(1) That if said contract was an entire contract no action could be brought thereon upon a quantum meruit unless it had been fully completed, or the" contract had been abandoned, rescinded or extinguished by some act of the defendant. (Greenleaf on Evidence, Yol. 2, Sec. 104; Glark y. Smith., 14 Johnson, 326; Der-mott y. Jones, 2 Wall. 1 Opin. 9; Gutter v. Powell, 2d Smith’s Leading- Cases, 1, and notes.) (2) If the contract was not entire no action could be brought for a partial performance thereof, but the action should have been upon the contract itself. (Note to Gutter v. Powell, 2 Smith’s Leading Oases, p. 62.) (3.) There was no allegation that any estimates were ever.put in as provided in the contract.
    The object of the contract being to haul all the ties, about 40,000, it was an entire contract. (Gatlin v. Tobias, 26 N. Y. 217.)
    It was incumbent upon plaintiffs before they could recover upon quantum meruit to show that nothing remained to be done under the contract except for the defendant to pay the price agreed upon and that they had complied with the terms of the contract upon their part. There was no breach until completion and the plaintiffs could not maintain their action. (Krurnb v. Campbell, 102 Cal. 370 ; McGonigl&v. Klein, 40 Pac. 465; Jackson v. Cleveland, 15 Wis. 107; Mount v. Lyon, 49 N. Y. 5521 Jones v. U. S., 96 TJ. S. 24, and see cases above cited.)
    It is the rule that as to an- act raising a legal right or that amounts to a legal wrong or embraces a legal duty, or constitutes a tort or a crime, it is not necessary to prove the date alleged. (Holman v. Pleasant Grove City, 8 Utah, 78-81; Lake Shore, etc. B. B. Go. v. Hundt, 140 Ill. 525.) So an averment that a jennet was killed.April 19, 1886, was sustained by proof that the jennet was killed April 29, 1889. (St. Louis, etc. B. B. Go. v. Evans, 78 Tex. 369; Lasater v. Van Kook, 77 Tex. 650.) It has been held that in an allegation of title a prior beginning can be shown. „ (Bussell v. Bradley, 47 Kan. 438.) It is the general rule that allegations of value, place, time and amount need not be strictly proved. (See, in addition to the above authorities, Brown v. Sullivan, 71 Tex. 470; McOaslvn
      v. Lake Shore, etc. R. R. Go., 93 Mich. 553; Rockford v. Hol-Unbeclc, 34 Ill. App. 40.)
    The defendant should have been allowed to prove its counterclaim for damages arising out of the failure of plaintiffs to complete their contract and for delays caused thereby in dir’ect violation of the terms of the contract. (Civil Code, Sec. 4212; Sutherland on Damages, Yol. 1, page 187; Hicks v. Herring, 17 Cal. 560; Williams v. Missouri F. Co., 13 Mo. App. 74; Greenleaf on Evidence, 268:)

      Messrs. Hartman & Hartman, and Mr. M. 8. Gunn, for ^Respondents.
    “The objection, that the common counts are inconsistent with the provision of the Code that a complaint must state facts constituting a cause of action in ordinary and concise language, and are therefore insufficient, is not tenable.” (Pleasant v. Samuels (Cal.), 45 Pac. 998; Mosley v. Black, 28 N. Y. 438; Nyhart v. Pennington (Mont.), 50 Pac. 413; Castagnino v. Balletta, 82 Cal. 250; Farron v. Sherwood, 17 N. Y. 227; Galvin y. MacM. & M. Co., 14 Mont. 508.)
    Where labor has been performed or work done under a special ■contract which has been fully executed by the plaintiff, and the time for payment is past, a recovery may be had on a quantum meruit. (Farron v. Sherwood, 17 N. Y. 227; Stuckey v. Hardy, 41 N. EL 606; Shepard v. Mills, 50 N. EL 709; Moore v. Mfg. Co., 20 S. W. 975; Castagnino v. Balletta, 82 Cal. 250; Electric Co. v. Berg, 30 S. AY. 454; Higgins v. Railroad Go., 66 N. Y. 604; Railroad Co. v. Donovan, 65 N. AY 583; Devec-mon v. Shaw, 9 Am. St. Hep: 422; Ludlow1 v. Dole, 62 N. Y. 617; Gambril v. Schooley, 43 Atl. 918; Ingle v. Jones, 2 Wall. 1; Note to Cutter v. Powell, 2 Smith’s Leading Cases, 41.)
    Where a person performs work and labor for another under a special contract, but not within the time or in the manner stipulated, he cannot recover upon the contact, because he has departed from it; but he may rec'over-upon a quantum meruitt
      provided the work and labor performed was beneficial to the other party and was accepted and enjoyed by him. (Elevator Co. v. Clark, 80 Fed. 705; Bedoiu v.- Tonkin, 59 N. W. 222; Deposit Go. v. Burke, 88 Fed. 630; Gasilin v. Weeks, 38 N. E. 331; Gove v. Milling Go., 24 Pac. 521; Standard Gas Light Co. v. Wood, 61 Fed. 74; Ingle v. Jones, 2 Wall. 1.)
    The contract was not entire, but was divisible. (Perkins v. Hart, 11 Wheaton, 237; Broumel v. Bayner, 11 Atl. 833; Taylor v. Laird, 1 ITnrl. & N. 274; Note to Gutter v. Powell, 2 Smith’s Leading Cases, 45; Sickels v. Patterson, 14 Wend. 267.)
    Plaintiffs having elected to bring their action upon the quantum meruit, it was not necessary to allege that an estimate was put in, even though this was a condition precedent to the right to payment. Proof of the estimate was admissible under the allegations of the complaint. (Blevator Go. v. Clark, 80 Fed. 705; Higgins v. Railroad Go., 66' N. Y. 604; Castagnino v. Balletta, 82 Cal. 250.)
    The first cause of action stated in the complaint is not defective because it is not alleged therein that any estimate was put in as provided by the contract. (Johnson v. Warian, 15 N. E. 413; Porter v. Swam, 35 N. Y. Supp. 1057.)
    If the plaintiffs performed the contract, the price fixed therein is the measure of the recovery for hauling the said 20,593 ties. (Swartzel v. Karnes, 44 Pac. 41; Ingle v. Jones, 2 Wall. 1; Perkins v. Hart, 11 Wheat. 237; Ludlow; v. Dole, 62 N. Y. 617; Shepard v. Mills, 50 N. El 709; Electric Go. v. Berg, 30 S. W. 454; Higgins v. R. R. Go'., 66> N. Y. 604; Gambrill v. Schooley, 43 Atl. 918; Note to Cutter v. Powell, 2 Smith’s Leading Cases, 41.)
    If, however, the plaintiffs did not comply with the terms of the contract, as the work performed was beneficial to the defendant and was accepted and enjoyed by it, the plaintiffs were entitled to recover the reasonable value of the work and labor performed without regard to the contract price. (Bedoiu v.
      Tonkin, 59 N. W. 222; Deposit Go. v. Burke, 88 Ned. 630; Gove v. Milling Go., 24 Pac. 521; Gastlin v. Weeks, 28 N. Et 331; Standard Gas Light Go. v. Wood, 61 Fed. 74.)
    The counterclaim is in effect a bill of particulars. It was probably unnecessary to itemize, specify and particularize as was done in tbis counterclaim. The defendant, however, having adopted this form of pleading, was properly confined in its proof to the particular delays complained of. (Matthews v. Ilubhard, 47 N. T. 428; 3 Eney. PI. & Pr. p. 539; Tourgee v. Bose, 37 Atl. 9; Wilkinson v. Railroad Go., 17 So. 71; Gity of Seattle v. Parker, 43 Pac. 369; Quinnv. Aston, 2 Wend. 577.)
    The court was fully justified in refusing each and every request made by the defendant, because they were not signed as required by the statute. See Sec. 1080, Subd. 7, Code Civ. Proe. It is held generally in. states having a statute similar to the provision referred to that it is not error for the court to refuse a request where it is not signed by counsel. (Ohoen v. Porter, 66 Ind.194; Darnell v. Sallee, 34 N. EL 1020; Bank v. Bennett, 36 N. EL 551; By. Go. v. Mitchell, 26 S'. W. 154; Bedus v. Burnett, 59 Tes. 581; By. Go. v. Hobbs, 43 N. El 479; Schoolfield v. Houle, 13 Col. 394; 11 Eney. PI. & PSr. 270.)
   ME. JUSTICE MILBUBN,

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

1. The first alleged error assigned is the action of the court in overruling the defendant’s motion for judgment on the pleadings. We do not think that the court erred in this behalf. The motion was directed to the first cause of action only, and was upon two grounds: (1) That under a contract in writing plaintiffs had agreed to haul and distribute 40,000 ties, and that the pleadings showed that they had not been hauled; and (2) that the pleadings showed that there was not anything due from defendant to plaintiffs.

Eeference to the pleadings discloses that the suit.was on a quantum meruit for services rendered by plaintiffs to defendant. Plaintiffs admitted in their replication that there was a contract in writing, but denied that defendant at all performed its obligations thereunder, and alleged that there was another and separate agreement made between plaintiffs and defendant, by the terms of which plaintiffs were to receive extra pay for hauling ties to a greater distance than was provided for in the written instrument. This fact alone would be sufficient h> justify the action of the court in denying the motion for judgment on the pleadings. It is said, by appellant that the cause of action for the extra hauling could not be set up for the first time in the replication. Certainly the.plaintiffs could not state their case in chief in the replication, but we do not understand that the plaintiffs did anything else than explain their denial of the allegation in the answer that there never had been any other agreement between the plaintiffs and the defendant than the one evidenced by a certain letter referred to in the answer as stating the contract. If defendant desired to attack plaintiffs’ complaint for declaring, as it supposed-, in one count on a quantum meruit on two separate causes of action, to-wit, for the hauling of ties under the express contract and for extra services not provided for in said letter, the proper step was not by motion for judgment on the pleadings.

Both of the reasons given in the motion seem to be pi'edicated upon the idea that the contract was an entire one, and that it was necessary for plaintiffs to allege that they had hauled and distributed 40,000 ties before they could recover anything at all. This is not so. If there was in fact a failure to pay on the 15th of any one month, and the plaintiffs had hauled and distributed ties as they were expected to do under the terms of the contract, they would not have to continue hauling until the end of the term of the contract and wait till then for their money. There is nothing said in the pleadings about the failure to render an estimate. The answer sets forth the particulars wherein the plaintiffs bad failed to perform, but does not say that there bad been any failure on the part of any one to furnish such statement. It is not claimed in the answer that any payment was ever made to the plaintiffs.

It does not seem to be necessary to quote or cite authorities to support the statement that plaintiffs, if they performed as above suggested, did not have to wait until the end of the term, but could sue on default of monthly' payment and bring their action on a' quantum meruit. (See note to Cutter v. Powell, 2 Smith’s Leading Cases, at page 55; Broumel v. Rayner, 68 Md. 47, 11 Atl. 833 ; Perkins v. Hart, 11 Wheat. 237, 6 L. Ed. 463.) The opinion in Riddell v. Peck-Williamson, Heating & Ventilating Co., 27 Mont. 44, 69 Pac. 241, cited by appellant, does not contain anything opposed to the views expressed above, but, on the contrary, there is a statement therein that “if payments were to be made, * * * then a cause of action accrued as soon as the defendant failed to make a payment'when it should have been made. Default in making such payment would have entitled the plaintiffs, if they continued to perform under the contract, to recover judgment for the price of the work already done; or such default would have warranted them in treating the special contract as at an end, and authorized them to maintain an action on the implied promise of the defendant to pay the reasonable worth of the labor done and materials furnished. They could, a.t their option, have pursued either course.” So, in the case before us, the plaintiffs, if the defendant failed to pay, could have kept on working under the contract, and sued thereunder for the fixed value of their services, with a second count for the value of extra services; or they could adopt the course which they did, treating the special contract as at an end and suing on a quantum meruit.

The complaint counts upon the hauling and distributing of ties up to and including December 31st, and alleges nonpayment therefor, the suit having been commenced after January 15th. As we have said, the answer does not allege, among other things, which defendant therein says-that the plaintiffs failed to do-, that the plaintiffs were to furnish and did fail to furnish estimates. We do not find the court in error in overruling said motion for judgment on the pleadings.

2. The second assignment is that it was error for the court to overrule the objection of the defendant to the testimony of Martin Woldson as to 1,216 ties hauled beyond the limit. The ground of objection was that there was no allegation in the com: plaint, supporting such testimony, and that there is but-one contract pleaded in the complaint, to-wit, an implied contract; and plaintiffs admit the execution of a written contract set out in the answer, and that no testimony could be admitted outside of such express contract, and that the only allegation in plaintiffs’ pleadings in respect of the hauling of ties beyond the limit is an allegation in the replication, which defendant says is a complete departure from the complaint. What we have already said applies to this assignment, and we do not find that- the court erred. The same may be said of assignments 3 and 4.

3. In assignment No. 5 it is said that the court erred in permitting the witness Cook to testify as to the reasonable value of the hauling of the 21,809 ties. The reason assigned in the argument in the brief is that the plaintiffs could not sue on a quantum meruit, and, in any event, the contract price — ten cents — was the measure of damages. Eeferring to what wTe have said above in Section 1, and the further fact, disclosed by the record, that the witness testified that ten cents, the contract price,, was the reasonable worth, except as to the 1,216 hauled beyond the point fixed by the contract, we cannot see that the court erred in permitting the testimony to be introduced.

4. Although assignment 6 is a merger, embracing three alleged errors not specially numbered as the rule requires, still we take it up with assignment No. I. The point relied upon in each is that the court erred in not allowing defendant to prove that the work had not all been done;'that is, all the ties had not been hauled. This was admitted by all parties, and there could not be any error in tbe court cutting off proof to show wbat bad already been admitted. Plaintiffs only claimed that 21,809 ties bad been bauled. E'acb of these assignments is made and argued upon the presumption that the plaintiffs had failed to execute completely the contract on their side before suing to recover anything. We cannot say that the court erred as alleged in the sixth and seventh assignments. These remarks are applicable also to assignment No. 10.

5. Assignment No. 8 is that it was error for the court, to exclude (1) the testimony of the witness Signor in reference to the defendant’s first counterclaim, (2) to sustain the objection of the plaintiffs thereto, and (8) to reject the offer of proof made by the defendant. The reference to tire transcript covers from line 5, page 49, to line 15, page 51. This assignment is an assembling of more than one alleged error in one assignment. At least one of the questions refers to. the approach to “Hoffman’s Mine,” possibly mentioned in the question with reference to the second counterclaim, and not referred to in the contract as a place towards which ties should be carried. Suffice it to say that not a single date is given in any one of the questions asked and objected to, except in one, wherein it was asked if there had not been an interruption of track-laying on or about the 21st day of December, whereas the month of December ‘is not mentioned in the answer in the statement of the first counterclaim, in which statement are set forth particularly the different days upon which loss is alleged to have occurred by the delay of the plaintiffs. The items upon which the damages for delay are based in the first counterclaim are set forth with great particularity as to year, month, day, hours, men, teams, locomotives, etc. It was not error for the court to refuse to allow so wide a departure from the bill of particulars contained in the answer. After careful consideration of the questions, so. far as we can determine which of them apply to the first counterclaim, we conclude that the court did not err as alleged.

6. As to assignments 9 and 16, we need only say that all of the evidence offered and excluded referred to the second counterclaim, in which defendant sought to recover for damages alleged to have occurred to it after the suit was commenced, and it was not error for the court to exclude it.

T. We have carefully considered the points raised by appellant’s assignments numbered 11, 12, 13 and 14, as to instructions asked for by the defendant and refused by the court, and assignment No1. IT, as to an instruction given, and we do not find that the court erred as alleged.

8. It was error, as declared in assignment No. 15, for the court to give instruction numbered 8. The instruction was in relation to plaintiffs’ fourth cause of action for the sum of $31.50, wages of a watchman. In it the court told the jury that if they believed the testimony in regard to' that item their verdict should be for the plaintiffs in the sum of $31.50 and interest, and, if they did not believe the testimony of plaintiffs, then they should find for the defendant as to this cause of action. The giving of this instruction is assigned as error, and we think correctly so. To believe what a witness says is one thing, and to find a fact from the evidence given by such witness is another. It was for the jury to determine from the evidence how much, if anything, the plaintiffs should recover. The evidence is very meager as to this matter of the hiring of a watchman. Mr. Cook, one of the plaintiffs, testified that Mr. Wiswell, the superintendent of construction, wanted to rent a certain camp belonging to: the plaintiffs; that Mr. Hall, the vice president and general manager of the defendant, was not present, but that Mr. Wiswell wished plaintiffs to leave the camp for the company’s use; that plaintiff Cook then saia that, if the camp were left for the company’s use, he (Wiswell) would have to pay for a watchman; that Wiswell said that would be all right, Hall would fix that; that upon a demand for the rent he (Wiswell) would not 0. II. the bill. Cook did not remember the number of days the watchman was there, but he paid him $31.50 for the time he was there after the tálk with Wiswell.' Hpon cross-examination he said that Wiswell was not positive that they would want the camp, and he would like to have it left there until Mr. Hall came back. Mr. Hall afterwards rented the camp, used it, and paid rent therefor. Hall never agreed to pay for a watchman; he (Cook) had no conversation with any one except Mr. Wiswell; Wiswell told witness that he did not know whether Hall would want the camp or not, but that he was almost positive that they would. Witness said he knew that the conqiany or its general manager, Hall, authorized Wiswell to hire a watchman there, because he was. permitted to make deals of that kind all the time.

It is sufficient to say, in respect of this instruction, that' there is nothing in the evidence to show how many days the watchman was there, and, if anything was owing under such evidence, it certainly was for the jury to say whether $31.50 was a reasonable and proper amount to pay for his services, and it was not for the court to direct a verdict of $31.50, even if the jury did believe all that Mr. Cook said upon the subject, A motion for a nonsuit upon such evidence upon this cause of action, if it had been made,, ought to have been granted.

For the reasons stated above, the order denying the motion for a new trial and the judgment are affirmed as to the first, second and third causes of action, and reversed as to the fourth cause of action, as to which fourth cause of action the cause is remanded for a new trial.

Mb. Justice Holloway:

I dissent. I particularly disagree with the order remanding, the cause for a new trial as to the fourth cause of action only. I am of the opinion that the entire cause should be retried, for, while the complaint contains four distinct causes of action, the jury found for the plaintiffs in a gross sum, without determining the amount which they should recover on each cause of action separately. For this reason, I believe the verdict entirely insufficient. (22 Enc. PL & Pr. 850, and cases cited.) The cause is remanded for a new trial upon the fourth cause of action, and, if upon a second trial the jury should return a verdict for a, sum less than the amount claimed, I am of the opinion that the: district court would be unable intelligently to properly modify tbe existing judgment, for the reason that it could not determine whether the verdict upon a second trial was for a greater or less amount than the verdict on that cause of action on the first trial.


source: Caselaw Access Project

author: AIR. COMMISSIONER CLAYBEEG

license: Public Domain

text:
    CORBY, Respondent, v. ABBOTT, Appellant.
    (No. 1,643.)
    (Submitted July 10, 1903.
    Decided July 20, 1903.)

      Judgment by Consent — Appeal.
    1. Judgment entered on the stipulation of the parties is in fact a judgment by consent.
    2. One cannot complain on appeal of a judgment entered by his consent.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    ActioN by Sena E'. Corby against W. H. Abbott. Erom a final judgment in plaintiff’s favor, defendant appeals.
    Af-* firmed.

      Mr. E. B. Howell, for Appellant.

      Messrs. McIIatton & Cotter, for Respondent.
   AIR. COMMISSIONER CLAYBEEG

prepared the opinion for the court.

Action for partnership accounting. Appeal by defendant from a final judgment rendered in favor of plaintiff.

Plaintiff alleged the existence of a partnership between herself and defendant, “for the purpose of carrying on and conducting a lease upon the water pumped from the Parrot mine and other mines belonging to the Parrot Copper & Silver Mining Company, and precipitating the copper carried in solution in said water during tbe term of a certain verbal lease.” Plaintiff further alleged that she was the owner of a one-third interest in said partnership and lease.

Defendant denied the partnership, and the interest of plaintiff as alleged, but admitted that plaintiff was entitled to a one-sixth interest in the lease, for the proceeds of which he had accounted to the plaintiff.

At the close of plaintiff’s testimony a motion for nonsuit was made by defendant and denied. The judgment recites: “Witnesses on the part of the plaintiff and defendant were sworn and examined, and, after hearing the evidence and arguments of counsel,” etc., the jury returned certain special findings. Defendant also moved the court to reject these findings. This motion was denied. The judgment sets forth the following recital: “Thereafter, by a stipulation and agreement of the parties, in writing, filed in this cause, it was stipulated by and between the said parties that there was due and owing to> the plaintiff from the defendant, upon the basis of a one-third interest to plaintiff, and under the terms and provisions of this decree, the sum of $609.38 at the date of the commencement of this action, and that the plaintiff is entitled to an undivided one-third of all the property and proceeds of the said partnership, and that judgment may be entered herein in accordance with said stipulation and agreement.”

The ordering part of the judgment then follows. No objection is urged by appellant that the judgment does not conform to the stipulation. In fact, the attorneys for neither of the parties make any reference to this stipulation or recital.

The judgment having been entered upon the stipulation of the parties, it is in fact a judgment by consent. It is a familiar principle of law, which needs no citation of authority to sustain it, that no one can complain of a judgment entered by his consent. Appellant, therefore, cannot maintain this appeal.

We are of the opinion that the judgment should be affirmed.

Rehearing denied October 9, 1903.

Pee CueiaM. — -Por tbe reasons stated in tbe foregoing opinion tbe judgment appealed from is affirmed.


author: MR. COMMISSIONER POORMAN

text:
    ALLEN, Respondent, v. REELY, Appellant.
    (No. 1,641.)
    (Submitted July 15, 1903.
    Decided July 20, 1903.

      Appeal — Rules of Supreme Gowrt — Defective Brief — Affirm^ anee.

    Failure of appellant’s brief to comply with tbe provisions of Subdivision “a” of Subsection 3 of Rule X of tbe Rules of tbe Supreme Court is fatal to tbe appeal.

      Appeal from District Court, Ravalli Countyj F. H. Woody, Judge.

    Action -by Calvin L. Allen against J. W. Reely. Erom a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.

      Mr. George T. Baggs, and Mr. John M. Bvans, for Appellant.

      Mr. C. B. Callcms, for Respondent..
   MR. COMMISSIONER POORMAN

prepared tbe opinion for tbe court.

Appellant’s brief fails to comply with tbe provisions of Subdivision “a,” Subsection 3, of Rule X, of tbe Rules of tbis Court. Sucb failure bas many times been beld by tbis court to be fatal to an appeal. (Larkin et al. v. Butte & B. Consol. Min. Co. et al., 28 Mont. 41, 72 Pac. 304; Frederick et al. v. McMahon, 28 Mont. 263, 72 Pac. 621; Casey v. Thieviege, 27 Mont. 516, 71 Pac. 755, and ca-ses cited.)

No application bas been made to correct tbe brief, and, under tbe decisions in tbe cases above cited, none of tbe questions sought to be raised can be considered.

We therefore recommend 'that tbe judgment and order be affirmed.

Per Curiam. — For tbe reasons given in tbe foregoing’ opinion, the judgment and order appealed from are affirmed.


author: ME. COMMISSIONER CALLAWAY

text:
    FOSTER et al., Respondents, v. BENDER et al., Defendants; BENDER, Appellant.
    (No. 1,637.)
    (Submitted July 13, 1903.
    Decided July 20, 1903.)

      Appeal — Decree Canceling Tax Deed— Correction.

    Judgment in favor of plaintiff canceling a tax deed, but failing to require payment to defendant of tbe amount admitted by plaintiff in Ms complaint to be due defendant, and so found by the district court, will on appeal be remanded to the court, with directions to amend its decree conformably to the conclusions found by it.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by Lee W. Foster and another against Louis Y. Bender and others. Decree for plaintiffs. Defendant Bender appeals.
    .Remanded with directions to amend decree.

      Mr. John 0. Bender, for Appellant.

      Messrs. McHaMon <& Cotter, for Respondents.
   ME. COMMISSIONER CALLAWAY

prepared tlie opinion for tlie court.

This action was brought for the purpose of canceling a tax deed affecting certain real property in the city of Butte, which was sold April 1, 1895, by the treasurer of Silver Bow county to Fergus F. Kelly for taxes attempted to be levied thereon in the year 1894.

In their complaint plaintiffs offered to pay the defendant the amount of all taxes, penalty, and costs assessed and accruing against the property for the year 1894, with interest thereon.

In its conclusions of law made upon a trial of the cause, the court found the plaintiffs entitled to have the tax deed canceled, and the defendant entitled “to the amount of taxes due upon the property for the year 1894, together with the interest thereon allowed by law upon delinquent taxes from the time of the sale of the premises to Fergus F. Kelly, assignor of the plaintiff.” The word “plaintiff” should read “defendant.;” it was conceded by all that Kelly was the assignor of the defendant, and tlie court so states in its findings of fact. Upon its findings of fact and conclusions of law, the court entered a decree in favor of plaintiffs, canceling the deed, but failed to provide in the decree that the plaintiffs should refund to defendant the taxes, penalty, costs and interest above mentioned.

The defendant complains that the decree is not responsive to the pleadings, and does not conform to the conclusions of law, because it cancels the tax deed without requiring payment to the defendant of the amount admitted by plaintiffs to be due, and so found by the court. The decree must be corrected in this respect.

We advise that the cause be remanded to the district court, with directions to amend its decree conformably to the conclusions heretofore found by it, and that, when so modified, the judgment be affirmed.

Pee Cueiam. — Por tbe reasons given in tbe foregoing, opinion, tbe cause is remanded, witb directions to amend tbe decree as above suggested, and, wben so modified, tbe judgment will-be affirmed.


author: MR. CHIEF JUSTICE BRANTLY, Mu. Iustice IIoleowat :

text:
    STATE ex rel. PARROT SILVER & COPPER COMPANY, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,963.)
    (Submitted June 26, 1903.
    Decided July 24, 1903.)

      Mines and Mining — Action to¡ Determine, Extralateral Bights —Inspection and Sivrvey — Order —1 Expenses — Constituí tional Lam — Due Process of Lam — Taping Property Without Compensation.

    1. when the possession of the surface of a mining claim and the apex of the vein -found therein is shown, with the other facts establishing the right to pursue the vein on its dip, the presumption in favor of the owner of - neighboring surface — arising from the doctrine “cujus est sohmij ejus est ad inferos’’ — is overturned and disappears.
    2. under Code of Civil Procedure, Section 1314, the filing of a petition is not required; a motion sufficient to move the discretion of the court is all that is required.
    3. where it is made to appear from the allegations of the petition, either alone or by reference to the complaint, that there is good cause to believe that an examination of the property will aid the parties in the presentation of their case, and such allegations are supported by substantial evidence, it is sufficient to warrant the, making of a proper order under Section 1314, Code of Civil Procedure.
    4. If a stranger, under claim of title, encroaches upon the exterior portions of a lode by means of openings of which he has the exclusive control, Section 1314, Code of Civil Procedure, grants the owner of such exterior portions entry through, and a proper inspection and survey of, such underground jvorkings of his adversary as are. necessary to the ascertainment of the facts necessary to enable the owner to protect his rights.

      5 • where the issues do not render necessary an examination of all of defendant’s workings, an order under Section 1314, Code of Civil Procedure, authorizing the plaintiffs to survey all the underground workings in tne entire group of defendant’s claims, is erroneous.
    0. where, in an action to determine the extralateral rights of the owner of lode mining property, it appeared that most of the workings in one of defendant’s claims could be readily reached through plaintiffs’ shaft, it was error for the court, in granting an order of inspection and survey under Section 1314, Code of Civil Procedure, to allow the plaintiffs access to defendant’s workings exclusively through defendant’s shafts, and by means of the latter’s appliances.
    7. under Section 1314, Code of Civil Procedure, it was error to allow an inspection of defendant's workings, requiring defendant to use its appliances to lower and raise plaintiffs’ agents in making such inspection, without providing for the payment by plaintiffs of the expenses incident thereto upon the presentation of a claim therefor by the defendant.
    S. Where the evidence indicates conditions to justify a well-grounded belief that the adverse party is trespassing upon applicant’s rights, the order, under Section 1314, Code of Civil Procedure, should be made.
    9. Section 1314, Code of Civil Procedure, is not in contravention of Section 1, XIV Amendment, U. S. Constitution, as depriving the owner of property without due process of law.
    10. Section 1314, Code of Civil Procedure, is not in contravention of Section 14, Article III, Constitution of Montana, prohibiting the taking or damaging of private property without just compensation first made to the owner thereof.
    OrigiNal application by the state of Montana, on the relation of the Parrot Silver & Copper Company, a corporation, against the district court of the Second judicial district of the state of Montana, and Hon. William Clancy, a judge thereof, for an order — under the supreme court’s power of supervisory control —to vacate an order of the district court granting an examination, inspection and survey of relator’s mines.
    Order modified.
    Statement of the Case.
    On May 18, 1903, an action was brought in the district court of Silver Bow county by the Nipper Consolidated Copper Com-pp-'v. flie Cora-Rock Island Mining Company, and Chester A. O" -.s, against the Parrot Silver & Copper Mining Company, tb ”Htose of which is to determine the extent of the extra-ía ■ ■ rights of the plaintiffs upon certain veins alleged to have tlioi” tons or apices in the Nipper lode claim, and to quiet the th'e ‘f the plaintiffs to said lode. The complaint alleges, in sv1 -canoe, that the plaintiffs are the owners of an undivided
      31-36 of the Nipper lode claim (patented) ; that 'certain veins, containing valuable deposits of gold, silver and copper, have their tops or apices within the surface boundaries thei’eof; that the plaintiffs are the owners, in possession, and entitled to the .possession of said veins,'not only within the surface boundaries of the Nipper lode claim, but also to the exterior portions thereof, though upon their descent into the earth they so far depart from the perpendicular as to pass beyond the side lines of said Nipper lode claim; that these veins pass on their strike through the claim nearly parallel with the side lines; that the end lines of the claim are parallel; that the veins upon their descent into the earth pass into and beneath the surface of other claims toward the south of the Nipper claim belonging to or in possession of the defendant, among others, the Kanuck lode, lot 219; Dives lode, lot 188; Kialto lode, lot 190; Adventure lode, lot 125 ; lot 86b.; Yirginius lode, lot 72; Parrot lode, lot 134; Parrot lode, lot 45A; and Bellona lode, lot 122; that plaintiffs are informed and believe that the defendant asserts some claim or interest in the ore bodies lying in the exterior portion of said Nipper veins, between the planes of the end lines thereof extended in their own direction; that by means of underground workings beneath the other claims in possession of the defendant, and particularly beneath the surface of the Kanuck, Adventure, Parrot, lot 45A, Parrot, lot 134, and Bellona claims, the defendant has heretofore, without the consent of the plaintiffs, entered upon the Nipper veins, and removed therefrom, carried away and converted to its own use ores and minerals of great value, in amount unknown to the plaintiffs; that the defendant threatens to continue to enter upon portions of said veins beneath the various claims mentioned and remove valuable ores therefrom, thereby destroying plaintiffs’ estate therein; and that the plaintiffs’ right to the exterior portions of said veins cannot be adequately protected by suits at law. The prayer is that an injunction issue to restrain trespasses by the defendant pending the litigation; that the defendant be required to set forth the nature of its adverse claims; that a decree be entered declaring said adverse claims* to be without foundation; that the defendant be perpetually enjoined .upon final decree from asserting any claim or interest in the Nipper veins; and that the plaintiffs have general relief. On May 25, 1903, the plaintiffs filed in this cause their verified petition ashing the court to grant them an order for a survey, examination and inspection of the claims enumerated in the complaint, together with other claims not mentioned therein. The said petition, omitting the formal parts, is as follows:
    “Come now the plaintiffs in the ahove-entitled action and respectfully show: (1) That heretofore, and on or about the 18th day of May, 1903, they commenced this action against the above-named defendant by filing their complaint herein, which complaint is hereby referred to and made a part hereof, and caused summons to be issued herein, directed to said defendant, which summons, together with a copy of said complaint, they are informed and believe was heretofore served upon said defendant. (2) That plaintiffs are informed and believe, and upon such information' and belief allege, that the defendant is in possession of all of the following described ground, claiming the same as quartz lode mining claims, to-wit, Kanuck lode, lot 219; Dives lode, lot 188; E-ialto lode, lot 190; Adventure lode, lot 125 ; Original lode, lot 161; lots 86A and 86B; Original lode, lot No. 6; Virginios lode, lot 72; Midnight lode.; Grey Eagle lode; Parrot lode, lot 134; Parrot lode, lots 45A and 45B; and Bellona lode, lots 122 and 61; and that underneath the surface of all of the said premises, lying within the planes described in plaintiffs’ complaint, drawn, respectively, through the east and west end lines of the Nipper lode claim, and extended in their own direction to the south across said premises, the defendant has various shafts and openings, which are connected with underground workings extending beneath the surface of said premises, and which shafts and openings are in the exclusive possession and control of the .defendant, and that defendant, by means thereof, controls the access to said underground workings, and claims the possession of all of the underground workings aforesaid, and tbat,’by reason thereof, tbe plaintiffs have no access thereto, and that entry thereto will have to be made by means of the shafts and openings aforesaid in the possession of the defendant. (3) That it is necessary, in order for the plaintiffs to ascertain and protect their rights in the veins and ore bodies described in the complaint and underlying the surface of the aforementioned premises, to have access through and to all of said openings and underground workings, and to have a survey, examination and inspection thereof; and that such access, survey, examination and inspection is necessary for the plaintiffs to have in order to prepare witnesses, and to present the facts in controversy in this action upon the tidal thereof, and upon any hearing that may be had in the case. That, in order to do so, it will be necessary for the plaintiffs, by their agents and representatives (not less than six in number), to be permitted to inspect, examine and survey all of the said claims, and all workings and openings therein, and all workings and openings made therefrom, within the territory lying within the planes aforesaid, for a period of at least twenty (20) days; and that, for the purpose of sucli inspection, examination and survey, the agents and representatives of the plaintiffs be permitted ingress and egress to and from all of the said claims and workings, through the shafts and openings, and by means of the machinery and appliances, of the defendant. That it is also necessary, in order to ascertain and protect the rights of the plaintiffs in the Nipper lode claim and in the veins and ore bodies described in the complaint, and to enable them to present the facts in controversy in said action upon any trial or hearing that may be had therein, that they be permitted, by their authorized and appointed agents, to, at all reasonable times pending the above mentioned suit, inspect and examine all of the underground workings in the premises lying between said planes and above mentioned; and that, for the purpose aforesaid, it is necessary that the petitioners have such inspection, examination and survey.as soon ' as possible. * * *”

      Upon the filing of this petition the court issued an order to show cause, and fixed the hearing for June 6th. On the day set for the hearing the defendant appeared and made various objections to the granting of the order, and moved the court to dismiss the petition. These grounds are stated, briefly, as follows : That the complaint does not state a cause of action; that it is uncertain, ambiguous and unintelligible; that the petition does not show good cause for making an order of survey and inspection ; and that the order, if granted, would constitute a taking of property of the defendant without due process of law, and in violation of the Constitution of the State of Montana and the Constitution of the United States. These objections having been overruled, the defendant filed its answer, putting in issue the material allegations of the petition, and alleging title in itself to certain ore bodies beneath the surface of the claims described. It also admitted ownership of the claims mentioned in the petition, except the Dives. The answer further denied any trespass upon any portion of the Nipper vein, and disclaimed any interest whatever therein. Evidence was introduced, and thereupon the court, after consideration, granted an order permitting the agents of the plaintiffs to enter upon all the lodes mentioned in the petition, except the Dives lode1, which does not belong to either party to the controversy, and for the space of thirty days, beginning with the 12th day of June, to examine, inspect and take surveys of all of the underground workings therein. The order further directed that during the said thirty days the defendant should accord to the agents of the plaintiffs the use of all its machinery and other appliances necessary for the purpose of ingress into, and egress from, the premises and workings, and to hoist and lower the said agents at all reasonable hours. It also directed that after the close of thirty days two agents of the plaintiffs should have access to said workings at reasonable times at least once a week, for the purpose of inspection and' examination, until the final hearing of the cause.
    An application was thereupon made to this court for an order, under its supervisory power, to vacate the order of the district court. Tbe grounds urged in support of the application are the following: (1) The order to show cause was improvidently granted, because the complaint does not state a cause of action, and because it is so uncertain in the.particulars alleged that the defendant should not be required to answer the same, or to show cause why an order of inspection should not be made.
    (2) No order of survey should be granted, because the evidence is wholly insufficient to show the existence, within the boundaries of any of the claims in possession of the defendant, except the Adventure claim, of any vein having its apex in the Nipper claim, and as to the Adventure no necessity for an order is shown.
    (.3) The order is not justified in so far as it permits a survey outside of the Adventure claim, because the proof fails to show the existence of any vein having its apex within the Nipper claim and extending into any of the said claims, and'fails to show any workings made by the defendant within the lines of said claims. This is particularly true of the Kanuck, Dives, Kialto, Adventure, Original, Virginius, Midnight, Grey Eagle, Parrot and Bellona.
    (4) The order is unauthorized and in excess of jurisdiction, in that it does not limit the survey to workings upon the veins asserted to constitute a part of the Nipper lode claim, but permits a survey and examination of all the workings of the Parrot Company upon any or all of the veins therein, whether they are the parts of the Nipper vein or not.
    (5) The order is erroneous and not valid, in that it requires the defendant to raise and lower, by means of its own appliances, through its own shafts, the agents of the plaintiffs, without any provision whatever for ascertainment and payment to the defendant, in advance, of compensation for such services.
    The relative positions of the claims in controversy, and the strike and dip of the vein, will be understood by reference to the .subjoined diagram:

      Tbe Nipper claim is represented by tbe figure marked “Nipper.” Tbe strike of tbe vein, according to plaintiffs’ evidence, is correctly indicated by tbe words “Nipper Vein,” a branch of it extending from a point near tbe shaft toward tbe southeast in tbe direction of tbe Anaconda claim. Tbe irregular figure indicated by tbe letters P, Q, R, etc., includes tbe group of claims belonging to the defendant.
    Tbe evidence introduced at tbe bearing shows that tbe Nipper vein lias been developed by means of what plaintiffs call their “apex drift,” about 60 feet beneath tbe surface, and extending from the shaft to a point near the west boundary of tbe claim, and also* eastward on both branches. An inclined shaft descends from tbe point marked “Nipper Shaft,”.following the dip of tbe vein exposed in the shaft in tbe direction of the dotted line, to workings in the Adventure, 1,350 feet below tbe surface. Openings have been made by tbe plaintiffs in connection with this shaft at tbe 150, 250, 500, 600, 800, 1,000 and 1,150 foot levels. Tbe defendant has extensive workings in the Kanuck, Rialto, Adventure, Original, lots 6 and 61, A and B, Virginius, Midnight, Grey Eagle, Parrot, lots 134, 45A and 45B, and tbe Bellona. Most of tbe workings in tbe Adventure can be reached by'means of plaintiffs’ shaft descending from tbe Nipper. Tbe workings in tbe other claims, it seems, though tbe proof showing tbe exact conditions is not clear, can be reached only through tbe Parrot shaft, or other openings in possession of tbe defendant. Tbe workings in tbe Parrot claim, at and below tbe 1,000 foot level, extend into tbe Kanuck and Adventure. At tbe 1,000 foot level they are upon tbe Nipper vein. In tbe Rialto tbe lowest workings are at tbe 160 foot level. Tbe depth of tbe workings in tbe Adventure and Original claims is not shown. Those in the Parrot’ (including all tbe lots) and tbe Bellona extend down to tbe 1,500 foot level, but a part of them at the.latter level has been made by tbe Anaconda Coinpany through tbe Never Sweat, presumably in pursuit of the vein found in that claim. Tbe workings in tbe Midnight and Grey Eagle are, or seem to be, a part of tbe general plan of workings in tbe Parrot and Bellona claims. The veins exposed in them all strike east and west, and in the Parrot dip at an angle of about 65 degrees to the south. The Nipper vein, near the western boundary of that claim, has a dip of 85 degrees to the south. This angle decreases toward the east until it becomes about 30 degrees at the shaft.
    The complaint in the case stands upon demurrer, but, so far as can be judged from the statements contained in the answer tc the petition (the defendant did not introduce evidence), the claim of the defendant is that the plaintiffs have no title to any ore bodies within the lines of its claims to the south, for the reason that the Nipper vein crosses both side lines of that claim, as is indicated by what is called the “Blue X Vein” on the diagram, and hence that plaintiffs have no extralateral rights toward the south. From this point of view the side lines of the Nipper are, for the purpose of determining the extralateral rights of the plaintiffs, its end lines. The controversy upon the merits is therefore the same as that involved in the case of Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, wherein we considered, upon application for injunction, conflicting rights between the Little Mina and the Nipper upon the same veins. There is nothing in the evidence to indicate what, if any, workings have been done beneath the surface of the Steward, Oden,' Anaconda and Never Sweat claims, which lie between the Nipper and the defendant’s claims.

      Mr. 17. W. Hvxon, Mr.-A. J. Shores, Mr. C. F. Kelley, and Mr. D. Cay Stivers, for Belator.

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

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

1. This application was made under the provisions of Section 1314 of the Code of Civil Procedure. It is urged in this court, as it was in the court below, that the complaint does not state a cause of action, and. is so indefinite in the particulars alleged that the defendant should not be required to answer the same, or show cause why the order applied for should not be made.

The theory of the action is that,.as the end lines of the Nipper are parallel, and the vein in controversy whose apex is found therein passes through the end lines, the plaintiffs are entitled to follow the vein on its dip into the lands of the defendant. It must be conceded that if this theory is supported by the facts, and if it further .appears that the defendant asserts title to any of the ore bodies found upon the exterior portions of the Nipper vein beneath the surface of its claims, the action may be maintained, and the plaintiffs should be granted a decree quieting their title to such ore bodies; for the assertion by the defendant, under such circumstances, of an adverse claim to exterior portions of the vein, is sufficient to authorize tire court to entertain the action, and to enter such decree therein as the facts justify. (Montana Ora Pur. Co. v. Boston & Montana C. C. & S. Minning Co., 27 Mont. 288, 70 Pac. 1114.) TJnder the holding announced in that case, the possession of the surface of a claim and of the apex of the vein found therein, so situated in its dip and strike as to give extralateral rights, draws to1 it also the possession of the exterior portions of tire vein, in the same way and to the same extent as the possession of the surface implies possession of everything perpendicularly beneath it. This presumption is subject to tire prima facie presumption, in favor of the adverse claimant, arising from the principle, “Cujus est solum, ejus est ad inferos/’ but when the possession of the surface and apex is shown, with the other facts establishing the right to pursue the vein on its dip; the presumption arising from the cujus solum doctrine is overturned and disappears. This must be so; otherwise the owner of a vein which dips beneath his neighbor’s surface, though he has been granted title to it under his patent, must demonstrate his title to every foot of it as it descends into the earth after it passes beyond his side lines. Such a condition would be intolerable. But this is somewhat of a digression.

We cannot upon this proceeding take up tbe questions presented upon tbe demurrer as original questions and decide tbem. Tbe jurisdiction of this court to try and determine this class of questions is appellate, and not original. It is confined to a review on appeal from tbe action of tbe district* court thereon in tbe regular way. That court is one of original general jurisdiction, and questions arising in tbe ordinary course must-be determined by it before tbe revisory power of this court may be invoked. It is sufficient for tbe purpose of an application for an order of inspection and survey, so far as tbe pleadings filed in tbe district court are converned, that it appear that an action is pending involving title to real estate. We may not look further than to ascertain this fact. If it is made to appear, from tbe allegations of tbe petition, by tbe facts stated therein, either standing alone or aided by appropriate reference to tbe allegations contained in tbe complaint, that there is good cause to believe that an examination of tbe property will aid tbe parties to present their rights in tbe proper way, and tbe court to intelligently adjust tbem, and such allegations are supported by substantial evidence, it is sufficient to warrant tbe making of the order under proper restrictions; for, if tbe party making tbe application should be held to strictness of allegation and proof, be would be required to produce to tbe court in tbe first instance tbe facts which it is tbe purpose of tbe application to obtain. Tbe remarks on this subject by this court in State ex rel. Geyman v. District Court, 26 Mont. 483, 68 Pac. 861, are pertinent, and, we think, are conclusive on tbe point urged. Tbe district court has jurisdiction of tbe action. Tbe order was proper, provided tbe showing made was “good cause,” within tbe meaning of that term as used in tbe statute. Strictly speaking, tbe statute does not require tbe filing of any petition. A motion sufficient to move the discretion of tbe court is all that is required.

But counsel say that, upon tbe showing made by tbe complaint and tbe petition, tbe property of which tbe inspection is sought belongs to the defendant, and not to tbe plaintiff, while the statute authorizes inspection and survey of the particular property in controversy, to-wit, the Nipper claim. The statute provides: “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 to be made through other lands or mining claims belonging to parties to the action.”

The exterior portions of a lode, situated as it is alleged the Nipper lode is, are substantial parts of the property conveyed by the patent, and if a stranger, under claim of title, encroaches upon such portions by means of openings of which he has exclusive control, the statute furnishes the owner the means of ascertaining the facts necessary to enable him to protect his rights, and authorizes entry for that purpose through the property of his adversary. It authorizes also a survey of the tunnels, shafts and drifts therein for the purpose of the action. If the survey and inspection must be limited with absolute certainty to the openings made upon the lode itself, and to the ascertainment of the physical and geological facts "to be found there, the purpose of the statute would be defeated. Its evident intent and purpose is to furnish the court and the parties with all the surrounding facts, so that the action may be conducted to &• proper conclusion. The extent of the inspection and survey must be limited only by the necessities of the action as they are made to appear. (State ex rel. Anaconda Copper Mining Co. v. Dist. Court, 25 Mont. 504, 65 Pac. 1020.) It is as important to know how to frame the issues in the causes as it is to produce the evidence in support of them. (State ex rel. Heinze v. Dist. Court, 26 Mont. 416, 68 Pac. 794.)

, The petition, though somewhat general in its statements, is sufficient in substance to support the order, aided, as it is, by reference to the allegations of the complaint. It does not matter that it and the complaint, speak of veins, while the evidence tends to show the existence of a single vein.

2. The facts, however, as they appear in the record, do not justify the order to the extent to which it goes. It authorizes the plaintiffs to survey all the underground workings in the entire group of defendant’s claims, between perpendicular planes passing down through the west end lines of the Nipper and Anaconda claims extended in their own direction to the south. This includes all the openings of all the claims from the surface downward, whether made by the defendant and in its possession or not. When we 'look at the issues, so fár as they are developed in the case, no reason is apparent why the inspection should be had in any of the openings not in reasonable proximity to the Nipper vein on its dip. The plaintiffs assert that the vein dips beneath the defendant’s claim at an angle varying at different points along-the strike from 85 degrees at the extreme west to 30 degrees near the shaft. It is exposed only in the Adventure, in the Parrot, and perhaps in the Bol-lona, after it leaves the territory of the Nipper, at and below the 1,000 foot level. The defendant insists that the vein crosses the side lines of the Nipper, and hence that, though it has done some work upon it, the plaintiffs have no right to complain, because they have no right to these portions of the vein. It does not appear that any work has been done in the Eialto claim below the 160 foot level, or that any possible benefit could result from an inspection of the workings of any of the claims above the 1,000 foot level, where the point of conflict is. A different situation would be presented if the defendant claimed the veiji at and below the 1,000 foot level by virtue of an older location, and of the union of the Nipper vein with a vein having its apex in defendant’s ground. Such an issue would render necessary an examination of all of the defendant’s workings from the surface, in order to determine the rights of the respective parties.

A somewhat similar issue was presented in the case of State ex rel. Heinze v. Dist. Court, 26 Mont. 416, 68 Pac. 794, and an order of examination and survey granted to- the defendant in that ease, and extended to the whole of plaintiffs claim, sustained, on the theory that the defendant might be able to learn the facts upon which the plaintiffs claim was predicated, and thus be enabled to frame the issues accordingly. The only necessity for the order in this case appears to be to enable the plaintiffs to sustain the issues tendered to the defendant.

Furthermore, the order in question seems to require the defendant to allow the plaintiffs access to the workings exclusively through shafts, and by means of appliances, in possession of the defendant. This would have been entirely proper, as' we shall presently see, if the necessities of the case had demanded such an order. The evidence tends to show, however, that most of the workings in the Adventure can be readily reached through the Nipper shaft. As to these openings, the only burden which the defendant may be called upon to assume is to permit free access to them. The duty of lowering and raising the plaintiffs5 agents should have been limited particularly to those workings to which access is not practicable except through the defendant’s shafts and by use of its appliances. Again, the order makes no provision for the payment by the plaintiffs of the expenses incident to the lowering and raising of their agents by means of the defendant’s appliances. Section 1317 of the statute requires the applicant to pay all the expenses of examination, survey and inspection, and clearly such expenses as are attendant upon access to the property would fall within the purview of this provision. (State ex rel. Anaconda Copper Mining Co. v. Dist. Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103.) The order should have required payment of such expenses upon the presentation of a claim therefor by the defendant.

3. The Dives claim was properly excluded from the order, because it was shown not to belong to the defendant. Defendant, therefore, has no ground to complain with reference to it. The order should also have excluded the Pialto claim, for the reason that there does not appear to be any necessity for any inspection of it. None of tbe openings made in it are below tbe 160 foot level, and benee no light could be sbed upon tbe issues involved by an inspection of them. As to claims mentioned in tbe order other than tbe Adventure, Kanuek, Midnight, Grey Eagle, Bellona and Parrot, including all of tbe three lots, tbe evidence is confined to these facts, to-wit, that they lie south of tbe Nipper claim, that tbe Nipper vein dips in their direction at an angle varying between 85 degrees and 30 degrees, that extensive workings have been done in them, and that they lie generally along tbe line of tbe strike of tbe vein as shown by the direction followed by tbe apex in'the Nipper ground. This evidence is not very convincing, but we are not willing to say that it is entirely insufficient to warrant tbe inclusion of these claims in tbe order, especially so -in view of tbe fact that tbe workings therein are exclusively in the possession of tbe defendant, and it is impossible for tbe plaintiffs to obtain any knowledge of tbe conditions existing therein without an inspection of them. Defendant offered no evidence on tbe subject, and, even if it bad, tbe plaintiffs would not be bound by it; and, where the evidence indicates conditions to justify a well-grounded belief that tbe adverse party is trespassing upon tbe applicant’s rights, tbe order should be made. (State ex rel. Geyman v. Dist. Court, 26 Mont. 483, 68 Pac. 861.)

It should be steadily borne in mind, both by tbe courts and tbe parties, in controversies of this kind, that tbe object to be attained is a just determination of disputed rights, and that the respective parties must, for tbe time being, submit to whatever temporary inconvenience may be cast upon them in order to accomplish this purpose.

4. What has already been said as to tbe extent of tbe order disposes of tbe fourth contention made by tbe relator. Tbe examination and survey should have been confined to the workings upon tbe Nipper vein, and those in such proximity thereto that tbe result would be an aid to tbe plaintiffs, and not an unnecessary infringement upon the rights of tbe defendant.

5. Earnest contention is made that the order is in contravention of Section 1 of the Fourteenth Amendment to the Constitution of the United States, prohibiting the deprivation of property without due process of law, as well as of the provisions of the state Constitution prohibiting the taking or damaging of private property without just compensation first made to the owner thereof. (Constitution, Article III, Section 14.)

In St. Louis Mining & Milling Co. v. Montana Company, 9 Mont. 288, 23 Pac. 510, similar objections made to an order granted under Section 1311 were considered by this court and overruled. ' In the same case, on error to the Supreme Court of the United States, that court discussed the various constitutional objections to the order, and, after an extensive examination of the authorities, overruled them all. In concluding its discussion of the question whether or not the making of such orders, and the temporary invasion thereunder of the property of a citizen, is taking property without due process of law, that court said: “In conclusion, it may be observed that courts of equity have, in the exercise of their inherent powers, been in the habit of ordering inspections of property, as of requiring the production of books and papers; that this power on the part of such courts has never been denied, and if it exists, a fortiori, the state has power to provide a statutory proceeding to accomplish the same result; that the proceeding provided by this statute requires notice to the defendant, a hearing, and an adjudication before the court or judge; that it permits no removal or appropriation of any property, nor any permanent dispossession of its use, but is limited to such temporary and partial occupation as is necessary for a mere inspection; that there is a necessity for such proceeding in order that justice may be exactly administered; that this statute provides all reasonable protection to the party against whom the inspection is ordered; that the failure to require a bond, or to provide an appeal, or to have the question of title settled before a jury, is not the omission of matters essential to due process of law. It follows, therefore, that there is no conflict between this statute and the Fourteenth Amendment of the Constitution of the United States.” (Montana Company v. St. Louis Mining & Milling Co., 152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398.) In another place in the opinion, the court, in speaking of the matter of temporary invasion of the property of a citizen for the purpose of aiding in the administration of justice1, said: “To ‘establish justice’ is one of the objects of all social organizations, as well as one of the declared purposes of the Federal Constitution; and if, to determine the exact measure of the rights of parties, it is necessary that a temporary invasion of the possession of either for purposes of inspection be had, surely the lesser evil of a temporary invasion of 'one’s possession should yield to the higher good of establishing justice; and any measures or proceedings which, having the sanction of law, provide for such temporary invasion with the least injury and inconvenience, should not be obnoxious to. the charge of not being due process of law,”

Nor does such temporary invasion of the property of a party to a controversy fall within the prohibition of the Constitution of Montana forbidding the taking or damaging of private property without compensation first made. Such temporary invasion is not the taking or damaging of property within the purview7 of the constitutional provision. Every citizen has the right to the exclusive enjoyment of his property, without interruption or invasion; yet this general rule of right must, under the circumstances of the case, yield to the higher right of public necessity, that equal justice may be administered upon conflicting rights of different citizens. Every citizen holds his property subject to this burden, and when the necessity arises his private right must give way to this, higher law.

In Thornburgh v. Savage Mining Co., District Judge Baldwin, speaking for the United States Circuit Court for the District of Nevada, in discussing this phase of the law, says: “Ought a court of equity, in a mining case, when it has been convinced of the importance thereof for the purposes of the trial, to compel an inspection and survey of the works of the parties, and admittance thereto by means of the appliances in use at the mine ? All the analogies of equity jurisprudence favor the affirmative of this proposition. The very great powers with which a court of chancery is clothed were given it to enable it to carry out the administration of nicer and more perfect justice than is attainable in a court of law. That a court of equity, having jurisdiction of the subject-matter of the action, has the power to enforce an order of this kind, will not be denied. And the propriety of exercising that power would seem to be clear, indeed, in a case where, without.it, the trial would be a silly farce. Take, as an illustration, the case at bar. It is notorious that the facts by which this controversy must be determined cannot be discovered except by an inspection of works in the possession of the defendant, accessible only by means of a deep shaft and machinery operated by it. It would be a denial of justice, and utterly subversive of the objects for which courts were created, for them to refuse to exert their power for the elucidation of the very truth — the issue between the parties. Can a court justly decide a cause without knowing the facts ?” (7 Morr. Min. E., at page 680.) This language is quoted with approval by the Supreme Court of the United States .in Montana Company v. St. Louis M. & M. Co., supra. In that ease the court proceeded, under the inherent power vested in courts of equity, to do whatever was necessary to a proper adjustment of the rights of the. parties. If courts of equity have inherent power to make such orders, and for the purpose of making them effective require the party whose properly is affected to furnish to his adversary the appliances necessary to gain access to the property, and without which such access is impossible, surely it is within the power'of the legislature to provide by statute for the making of the order, and, either expressly or by implication, to authorize the court to make its order effective.

The order complained of is defective, in that it fails to provide the compensation contemplated by Section 1317 of the statute, but the provisions of the statute itself are not in contravention of either the Constitution of the United States or of the state of Montana.

As the necessities of the case may develop from time to time the order may be extended, but for present purposes the district court is directed to modify its order as made in the following particulars: - To exclude the Ttialto claim altogether; to omit the requirement that .the defendant furnish to the plaintiffs access to the openings in the Adventure by means of the defendant’s appliances, except so far as it is shown to be necessary; to exclude from the order all the openings in any of the claims above the 1,000 foot level, and also those in the Parrot and Bellona claims in the possession of the Anaconda Company; and to add a requirement that the plaintiffs pay to the defendant the reasonable expenses incident to the use of the defendant’s appliances, so far as such use is necessary to obtain free access to workings that cannot be reached through plaintiffs’ own shaft. If, in order to observe these directions, it be found necessary to hear other evidence, the court may hear it at such time as may be convenient.

Modified.

Mu. Iustice IIoleowat :

I concur in all that is said in the first four paragraphs of the opinion. As to the conclusions reached in paragraph 5, I dissent. I do not think that the precise point in controversy here was involved in St. Louis M. & M. Co. v. Montana Co.; 9 Mont. 288, 23 Pac. 510, on error, 152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398. Upon each of those appeals the contention of respondent was that the mere invasion of private property of another for the purpose of making a survey and inspection does not constitute a taking within the meaning of the Constitution; that “taking,” as therein used, means a permanent deprivation of the owner of his property. In that suit access to the workings of the defendant’s property could be had through a tunnel, and therefore no question was involved as to the power of the court to compel the defendant to furnish the means of access. Admittedly, the defendant is the owner of tbe properties through which the plaintiffs desire to enter and survey the ground in controversy. That being true, in my opinion the statute does not authorize the court to compel the defendant to make use of its coal, engine, hoist and men for the purpose of enabling the plaintiffs to1 pursue their examination, and; if it did, it would be unconstitutional, as depriving the defendant of its property without due process of law. I cannot understand why the defendant may not shut down work in the Parrot shaft and refuse to operate the same if it desires to do so. I do not agree with the doctrine announced in Thornburgh v. Savage Mining Co., 7 Mor. 667.