25 Mont. 41 | Mont. | 1901
delivered the opinion of the Court.
The former opinion in this case is reported in 24 Montana, at page 125, and in 60 Pacific Reporter, at page 1039. Being-inclined to the view that, if the provisos of House Bill No. i -of the Session Laws of 1899 (Laws of 1899, page 134, hereinafter referred to) are applicable to co-tenancies created prior to the passage of that bill, the injunction was probably too broad in its terms, we granted a rehearing, and the cause has been again argued. The facts upon which the original decision was based are stated in the former opinion. The following facts are pertinent to the question which we shall consider upon the rehearing: The plaintiff and the defendants Ileinze are, and since 1893 have been, tenants in common of the Snohomish
We are satisfied that the provisos of Iiouse Bill No. 1 of the Laws of 1899 were intended to apply as .well to co-tenants whose estates were in existence when the law was passed, as to those whose estates have been or may be created after its passage. Does the amendment made by the Act of 1899 to Section 592 of the Code of Civil Procedure disturb or impair the vested rights of co-tenants whose estates were in existence at the time the amendment became operative? If it does, it is repugnant to those parts of Sections 3 and 27 of Article III of the Constitution of the State declaring that all persons have the natural, essential and inalienable right of acquiring, possessing and protecting property, and ordaining that no x>orson shall be deprived of xmoperty without due x>rocess of law. If it does, it is repugnant also to the “due x>rocess of law” clause of the 'Fourteenth Amendment to the Federal Constitution.
In 1813 the general assembly of Illinois prassed the following statute, entitled An Act Concerning “Joint Rights, and Obligations” (Rev. St. Ill. 1815, p. 299) :
“Section 1. * * * If partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivors, but descend or pass by devise, and shall bo subject to debts, dower, charges, etc., or transmissible to executors or administrator’s, and be considered, to every intent and pmrpwse, in the same view as if such deceased joint tenants had been tenants in common.
“Sec. 2. If any person shall assume and exercise exclusive control [after’wards changed to 'ownership’] over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy, tenancy in common or coparcenary, the party aggrieved shall have his action of tresx>ass or trover for the injury, in the same manner as he would have if such joint tenancy, tenancy in common, or coparcenary did not. exist. •
*69 “Sec. 3. All joint obligations and covenants shall he taken and held to be joint and several obligations and covenants.”
Section 2 received an interpretation in Benjamin v. Stremple, 13 Illinois, 466, and Boyle v. Levings, 28 Illinois, 314, decided in 1851 and 1862, respectively. These three sections were adopted by Montana. At the first session of the legislative assembly of the Territory of Montana an Act entitled “An Act Concerning Joint Bights and Obligations,” approved February 8, 1865, was passed (Bannack Statutes, p. 454;. It is as follows:
“Sectiofi 1. If any partition be not made between joint tenants, the property of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to execution or administration, and be considered to every intent and purpose in the same view as if such deceased joint tenants had been tenants in common.
“Sec. 2. If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy, tenancy in common or copartenary, the party aggrieved shall have his action of trespass or trover for the injury in the same manner ■ as he would have if such joint tenancy, tenancy in common or copartenary did not exist.
“Sec. 3. All joint obligations and covenants shall liereafter be taken and held to be joint and several obligations and covenants.
“Sec. 4. This act to take effect and be in force from and after its passage.”
Thereafter the provisions of the Act of 1865 were included in an Act entitled “An Act revising, enacting and codifying the general and permanent laws of Montana Territory,” the Act of 1865 constituting Chapter 36 of the compilation of 1871-72, the subject of the chapter being designated as “Joint Bights.” In the subsequent compilation of 1887 the provisions of the Act of 1865 were re-enacted without change, appearing
By its title the Act declares that the subject sought to be affected by its provisions. is “Joint Rights and Obligations/’ and, as the third section of the law treats specifically of “Joint Obligations,” it should seem clear that, if the title of the. Act may be treated as any evidence of its meaning, sections 1 and 2 were designed to treat of “joint rights.” It is hardly needful to observe that, if the provisions of the enacting portion of the statute actually depart from the purpose indicated by the title, they would not (under the Organic Act as it then was) be restricted by it; but if sections 1 and 2 render the meaning ambiguous, or leave the legislative intent doubtful, the avowed purpose of the legislation, as the purpose is declared in the title, would prove, at the least, of benefit in the effort to ascertain the design of that branch of the government whose purposes, when ascertained, must be respected and announced by the judiciary. We find that by the first section of the Act itself the legislative assembly plainly intended to destroy the right .of survivorship which constituted the distinguishing feature of the species.of tenure known as “joint tenancy,” and the provisions and unmistakable purpose of the Act are thus far consistent with its title, for, manifestly, such a substantial modification of the rights of joint tenants deals exclusively with “joint rights,” and accounts, at least in part, for that portion of the title which declares that the Act is one concerning “joint rights.” We cannot agree with the courts which hold that the legislature has power to convert existing joint tenancies into tenancies in common;
Whether these sections worked a change in the law by creating rights not theretofore existing, or provided remedies only, is the important and difficult question presented in the case at bar. If merely remedial, then they did no more than provide additional means of redress for the violation of rights recognized at'law or in equity. If, on the other hand, these sections created new rights in property, and incidentally prescribed remedies for the invasion of such rights, it will be sufficient, for the purposes of the-present inquiry, to determine xvhethel the supposed right asserted by the plaintiff was so created, and ■whether it became vested before the amendment of 1899 went into effect; and the extent of the changes made by the Act of 1865, with respect to the obligations and liabilities of co-tenants the one to the other need not be examined, except in so far as a discussion of them may bo necessary to a clear understanding of the points here presented.
Before the passage of the statute of I860, a tenant in common, although liable in trespass to his co-tenant for an unlawful destruction of the common property or of part of it, or of the interest of the co-tenant, had the right to “assume and exercise exclusive ownership over” (provided neither ouster nor conversion resulted), “or take away, * * * lessen in value, or otherwise injure or abuse” the common property (provided the act did not amount to ouster, waste, conversion, or unlawful destruction), and hence the exercise of that right could not operate as an “injury;” in other words: Under the common law one tenant in common is not aggrieved, — that is
Counsel in their learned and able arguments make incursions into the domain of ethics and make plausible suggestions touching the moral rights and remediless Avrongs of co-tenants, Avhich they assert existed prior to the Act of 1865, though they concede that no action or suit could be invoked to protect the rights or redress or prevent the Avrongs; but we are of the opinion that the purpose of this section Avas to destroy those characteristics of tenancies in common Avherein they mainly differ from' holdings in severalty, leaving the necessity for voluntary or judicial partition as the chief remnant of the distingrrishing features of this species of oAvnersbip, — in other AArords, the first and second sections, Avhich concern “Joint Bights,” practically convert a joint tenancy into a tenancy in common, and then convert tenancy in common into an estate AATith many (Avhether with all avc need not decide) of the rights and privileges incident to several OAAmership and giving the actions of trespass and trover for their protection.
HaAing thus reached the conclusion that the second section
With these views as to the force and effect of this early and long-standing legislation, we now approach the consideration i of the more recent enactments concerning this subject. Tn the Code of Civil Procedure adopted in 1895, Section 2 of the Act of 1865 became Section 592, being a portion of Title III of Part II of that Code. Section 592 omits the word “copartenary” and also the "words “of trespass or trover” from the language of Section 2 of the Act of 1865, but in other respects it is the same as section 2 of the original Act. Wo do not think that the placing of this so slightly modified section into the Code of Civil Procedure and into that part of it entitled “Parties to Civil Actions” is of real significance, or could possibly operate vitally to alter the legal meaning and effect of the long-established legislation; and this view is strengthened by Section 3454 of the Code of Civil Procedure, "which is as follows:
“The provisions of this Code, so far as they are substantially the same as existing statutes or the common la"w, must be construed as continuations thereof, and not as new enactments.” We therefore regard Section 592 of the Code of Civil Proced"*77 tire as a substantial re-enactment or continuance of tbe old Am of 1865, except in so far as it was modified by tbe omission of the words “of trespass or trover.” In Anaconda Copper Mining Company v. Butte & Boston Alining Company, 17 Montana, 519, 43 Pacific Reporter, 924, this Court after an examination of the section, considered especially as an amendment to tbe previous legislation, held tbat its effect was to enlarge tbe remedies of co-tenants by permitting any appropriate action for sucb injuries as were contemplated by tbat section and tbe statutes substantially re-enacted by it; this case was followed by Red Mountain Consolidated Mining Company v. Esler, 18 Montana, 174, 44 Pacific Reporter, 523; by Connole v. Boston & Montana Consolidated Copper and Silver Mining Company, 20 Montana, 523, 52 Pacific Reporter, 263; and by Harrigan v. Lynch, supra. If tbe decision in the Anaconda Case deserves adverse criticism, as counsel for tbe defendants insist that it does, it is not because of tlie result reached, but rather because of tbe undue significance attached to the amendment omitting tbe words “of trespass or trover.” It should seem tbat even under tbe Act of I860 tlie tenant who was entitled to maintain an action of trespass against bis co-tenant in tbe same manner as bo would have if sucb joint tenancy or tenancy in common did not exist was, in tbe proper case, entitled to an injunction as an ancillary remedy to prevent a repeated or continuing trespass, — tbe right to sucb equitable aid not being tbe creature of tlie statute but arising under tbe •operation of tbe principles of equity applicable to all cases of continuing and irreparable trespass, both in order to prevent a multiplicity of suits and in order to prevent the commission of a threatened legal wrong, for which, when done, an action at law for damages would be an inadequate remedy. Wc feel satisfied tbat injunction would be an appropriate auxiliary remedy in sucb a case, especially where, as in Montana, law and equity are administered by tbe same court and often in tbe same case; but in any event it is apparent from the authorities last cited that the remedy by injunction, if not granted by the Act of*78 1865, is granted by section 592, and the giving of this new remedy for an old wrong violates no constitutional right. With this understanding of the meaning and general purpose of the Act of 1865, with its light amendment of 1895, we now address ourselves to the amending provisos contained in the Act of 1899, commonly called “House Bill No. 1,” and entitled “An Act to amend Section 592 of the Code of Civil Procedure of Montana, relating to property held in joint tenancy and tenancy in common.” This Act is as follows:
“Be it enacted by the Legislative Assembly of the State of Montana:
“Section 1. That Section 592 of the Code of Civil Procedure of Montana, be and the same is hereby amended so as to read as follows:
“Sec. 592. If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value or otherwise injure or abuse any property held in joint tenancy, or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist.
“Provided: That nothing herein contained shall prevent one co-tenant or joint tenant or any number of co-tenants or joint tenants acting together less than all, from enterng on the common property at any point or points not then in the actual occupancy of the'non-joining co-tenants or joint tenants and enjoying all rights of occupancy of the property, without waste; and in the case of mining property, from mining the same in a miner like manner, and extracting, milling and disposing of the ore from the common property, paying its or their own expenses, and subject to accounting to the non-joining co-tenant or joint tenant for the net profits of such mining operations, if any made; and all liens for labor and materials incurred in such mining shall attach only to the undivided interest or interests of the working co-tenants or joint tenants, but nothing herein shall prevent or preclude the co-tenant or joint tenant, not joining in the operation of such mining property from re*79 ceiving his, its, or their proportionate share of all ore or ores on the dump upon payment or tendering payment of the actual cost of mining the same.”
If our interpretation of the second section of the Act of 1865 is correct, and if we are justified also in the opinion that the section, when so interpreted, could not be retrospective in its operation and could apply to and affect only estates created after the Act was passed, it seems quite clear that a like view must be taken with respect to the amendment of 1899 touching the working of a mine and the taking of ore therefrom by one tenant without the consent of his co-tenants; for it was plainly intended to restore to one class of co-tenants certain valuable rights which were taken away by the Act of 1865, and to deprive another class of valuable rights which were created by that Act. Careful examination of the amendment must, we think, result in the view that it could not impair any rights then existing and is therefore inoperative as to them; its language is not such as would seem appropriate for the purpose of any positive enactment, but is rather suitable as expressive of merely legislative construction. Its declaration is “that nothing herein contained shall prevent,” and while, if such a clause had been inserted in the original Act of 1865, it would have operated as a restriction upon the legislative force of the main body of the section, yet, considered as an amendment, it must be regarded as trespassing upon the powers and functions of courts or as meaning that “nothing contained in this section shall so operate on tenancies hereafter created as to prevent,” etc. The preventive force ef an Act, as well as its positive effect, is to be determined by the judiciary and, though the legislative assembly may and often does alter existing statutes because of their legal meaning as ascertained and announced by the courts, the lawmaking power cannot determine the past legal force and effect of any statute; such power would involve the right to review and reverse the rulings of those tribunals to which the people have intrusted exclusively .the power and duty of interpreting all Acts and determining both their positive force and
The order refusing an injunction is reversed and the cause is remanded.
Reversed and Remanded.
Rehearing denied March 4, 1901.