27 Mont. 288 | Mont. | 1902
Lead Opinion
delivered the opinion of the court.
This action was brought to recover damages for trespass upon a portion of the Johnstown (patented) lode mining claim, situ
The comjdaint alleges; in substance, that the plaintiff is, and for a long time has been, the owner and in possession of the portion of the Johnstown described, and of all of the veins, lodes and ledges having their tops or apices therein; that the top or apex of a certain vein, bearing gold, silver and copper, lying within the surface boundaries of the Johnstown lode, extends through the whole length of the claim, and is substantially parallel with the side lines thereof; that it is intersected by the end lines of the claim, which are parallel; that said apex lies within the lines of the part described, and passes through the east and west end lines thereof; that said vein, in its course downward into the earth, so far departs from the perpendicular as to extend beyond the south side line of the Johnstown claim, and of the premises owned by the defendant within the Johns-town, and into and beneath that certain other claim known as the “Pennsylvania,” the greater portion of which is claimed by the defendant; that this claim lies partly adjacent to and south of the plaintiff’s premises; that plaintiff is the owner and in possession of said vein or ledge, not only to the extent of those parts of it which lie within the vertical planes extending downward through the surface boundaries of the conveyed portion, but also- of all portions lying outside of these planes, and between two planes drawn downward, the one through the east end line of the Johnstown claim, and the other through the west end line of the part described, so extended in their own direction, respectively, as to intersect the exterior portion of said vein beneath the surface of the Pennsylvania claim, and north
The defendant, in its answer, makes the following- denials: That the plaintiff is the owner of the veins, lodes or ledges having their tops or apices within the premises described, or is en
In an amendment to this answer the defendant admits that the plaintiff was at the beginning of the action in possession of workings within the Pennsylvania ground below the 400-foot level and above the 900-foot level, and avers that it was also in possession of the small triangle of ground in the northeast corner of the claim, but denies that it had possession of any other part or portion of the claim. It further avers that to the south of and above these workings there were other veins and ore bodies, all of which were in the possession of the defendant.
To this amendment plaintiff made reply, reiterating its claim of possession, not only of all the ore bodies exposed in its workings, but throughout the entire depth of the vein on its dip.
At the conclusion of the evidence, the plaintiff, by leave of court, made amendments to the complaint by so changing the language therein as to include all veins having their tops or
Upon the filing of these amendments, the defendant moved the court for a continuance of the cause, upon the ground that new issues were presented, which it was not prepared to mese. The motion was denied, and the defendant required to answer at once. This it did. The amended answer admits ownership in plaintiff of the small portion of the Pennsylvania claim described. The defendant then, besides denying substantially the amended allegations, avers that much of the work done by plaintiff in the Pennsylvania claim has been done upon veins having their tops or apices within the boundaries of that claim, or within the Johnstown claim outside of the plaintiff’s premises, and that at the beginning of the action the plaintiff had not the possession of any of the veins or workings within the Pennsylvania or Johnstown claims south of the plaintiff’s premises, except by a wrongful entry thereon by underground workings, and by occupying the same against the wishes of defendant. It is further averred that the defendant is the owner and in possession of the Pennsylvania claim, except the portion described, and of the Johnstown claim outside of and to the south of plaintiff’s premises, and claims to own the ores beneath the surface of these claims, and also beneath the Snow Bird claim, so far as they lie within veins having their tops or apices within the portion of the Johnstown owned by it.
To these averments the plaintiff made reply, which contains
T'o elucidate the pleadings and illustrate the questions at issue, reference may be had to the subjoined diagrams; the one representing the contention of the plaintiff, and the other that of defendant:
These contentions were made in tbe evidence. Tbe pleadings do not show upon what tbe defendant bases its adverse claim, except in the averment that tbe ore bodies in controversy have their apices in ground belonging to tbe defendant, and therefore belong to it by virtue of its ownership of tbe surface under which they are found. That the plaintiff was at tbe beginning of tbe action in possession of tbe conveyed portion of tbe Johns-town is admitted. It is also practically admitted that it was in tbe possession of tbe workings and ore bodies in controversy, but it is averred that such possession was wrongful.
1. Tbe action was brought on May 2, 1898. It was dismissed as to tbe first cause of action on April 15, 1899. At that time a motion was made by plaintiff asking that a day be set for tbe bearing. On April 22d tbe bearing was fixed for May 22d. On tbe latter date, upon application of tbe defendant, tbe bearing was postponed until July 24th. On July 24th an application for postponement was again made by tbe defendant, which was granted, and tbe bearing was fixed for August 11th. On July 24th, when tbe cause was set for trial, the defendant was, upon motion, permitted to amend its answer. On August 11th it submitted a motion asking that tbe cause be dismissed— First, because tbe plaintiff bad dismissed the legal cause of action instituted to try tbe question of title and other legal issues involved, and tbe dismissal of that cause of action should operate as an abatement of tbe equitable cause of action, tbe latter being merely ancillary to the former; and, second, because tbe issues presented in the equitable cause of action are legal issues, and cannot be tried in an equitable action. Four other grounds were embodied in tbe motion, but they are substantially repetitions of tbe two stated. This motion, we think, was properly denied.
Tbe first or legal cause of action stated was for damages for ores already extracted and converted by tbe defendant. Tbis
This conclusion renders unnecessary a consideration of plaintiff’s argument that the defendant waived its right to interpose the motion to dismiss the action by theretofore moving for leave to amend its answer and for the several postponements of the .hearing.
2. On the day set for the trial the defendant asked that all .the issues in the case as to the identity and continuity of the veins in controversy, and particularly the question of title thereto, be submitted to a jury for a general verdict as in an action at law. This request was denied. Thereupon request was made that the court frame issues of fact involving the same questions, and submit them to the jury for special findings. This request was also denied. It is now urged that the defendant was entitled to a trial by jury, as a matter of right, under the clause of the state constitution (Article III, Sec. 23), declaring that “the right of trial by jury'shall be secured to all and remain Inviolate,” and that the court erred in refusing it. There is thus ■presented the important question whether, in the class of cases io 'which this belongs, a trial by jury may be demanded as a matter of right. A correct solution of it requires an investigation of the conditions existing at the time the territorial government was merged in that of the state, for unless by express terms fhe constitution by the language employed therein, manifests an intention by the convention to extend the right guarantied under this broad declaration to cases wherein it could not theretofore have been demanded as a matter of right, it must be understood as securing such right in this regard only as existed at the time of its adoption. (State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589, and cases cited; Finch v. Kent, 24 Mont. 268, 61 Pac. 653.) This rule is elementary. Now, there
At the first session of the territorial legislature, in 18G4-, the following provision was enacted: “An action may be brought by any person in possession, by himself or his tenant of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest.” Section 233, p. 92, Acts 1864-65. It was adopted from the statute of California of 1851. Upon the adoption of the Code of California, in 1872, the section was modified so as to authorize suit whether the plaintiff is in possession or not. The section as enacted by the Montana legislature was preserved in the various compilations of the Code until the formation of the state government (Codified Statutes of 1871-2, page 94, Section 303; Revised Statutes of 1879, page 110, Section 354; Compiled Statutes of 1887, First Division, page 160, Section 366), when it was continued in force by the constitution (Schedule 1). In the Code of 1895, Section 1310, supra, was enacted, and the old section repealed. The purpose of the original act was to enlarge the power of courts, and to enable them to entertain actions, to quiet title to real estate in the possession of the plaintiff without the necessity of first having the title established by one or more actions at law. Said Field, Chief Justice, after quoting the statute, in Curtis v. Sutter, 15 Cal. 260: “This statute enlarges the class of cases in which equitable relief could formerly be sought in the quiet ing of title. It authorizes the interposition of equity in cases where previously bills of peace would not lie.” Then after discussing the nature of bills of peace under the old equity practice, and the eurcumstances under which they would lie, he proceeded : “Under the statute of this state, it is unnecessary for the plaintiff to delay seeking the equitable interposition of. the court until he has been disturbed in his possession by the institution of a suit against him, and until judgment in such suit
The supreme court of California has not always been consistent with itself in determining whether the particular action was one in equity or at law. The result of its decisions seems to be that whenever the action is in the nature of ejectment, either upon the allegations contained in the complaint, or the nature of the relief demanded thereon, or when the defendant seeks possession by a counterclaim! of that nature, the action is one at law, and either party is entitled to have the legal issues thus raised tried hy a jury; otherwise the suit is one of equitable cognizance, and a jury may not be demanded as a matter of strict constitutional right. The following cases, in addition to those already cited, will be sufficient to illustrate this statement: Hyde v. Redding, 14 Cal. 493, 16 Pac. 380; Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283; Newman v. Duane, 89 Cal. 597, 27 Pac. 66; Angus v. Craven, 132 Cal. 691, 64 Pac. 1091.
It may be stated, as a general proposition, that it is not an objection to the jurisdiction of a court in equity that legal questions are presented for consideration which might also arise in a court of law. If the controversy he one in which a court of equity only can afford the relief prayed for, its jurisdiction is unaffected by the questions involved. (Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52; Smith v. Bank, 89 Ped. 832, 32 C. C. A. 368.) In Holland v. Challen, supra, in construing a similar statute, the Supreme Court of the United States said: “The statute of Nebraska enlarges the class of cases in which relief was formerly afforded by a court of equity in quieting the title to real property. It authorizes the institution of legal proceedings not merely in cases where a bill of peace would lie (that is, to establish the title of the plaintiff against numerous parties insisting upon the same right, or to
We have made the foregoing observations in connection with the authorities cited for the reason that they are cited by counsel and discussed in their briefs, counsel on each side claiming that they support their theory of the law. It would serve no useful purpose to refer to the great number of other cases cited by counsel. We think the question at issue must be decided against the contention of the defendant upon the decisions of this court prior to the adoption of the constitution.
The early case of Gallagher v. Basey, 1 Mont. 457, was a suit for perpetual injunction to restrain the diversion of water. The action was sustained, though it did not appear that the legal title had ever been tried in an action at law. It was also held that the defendants were not entitled to a trial by jury. The court proceeded upon the theory that, its equity jurisdiction having been invoked for relief by injunction, it could determine the question of title involved in the first instance, though it was directly put in issue, and though it is the rule that a court of equity does not usually interfere in such cases until the title has been established by an action for damages. This case was affirmed by the supreme court of the United States; that court holding that, though the statute of the territory regulating civil
Fabian v. Collins, 3 Mont. 215, was another case of the same character, and yet the territorial court expressly held that a trial by jury could not be demanded as a matter of right; citing with approval Gallagher v. Basey, supra, and Kleinschmidt v. Dunphy, 1 Mont. 118.
The case of Wolverton v. Nichols, 5 Mont. 89, 2 Pac. 308, was an action to determine,an adverse claim to a mine, in pursuance of the provisions of Section 2326 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1430). The supreme court held that the action was one in equity to quiet title under Section 354 of the Revised Statutes, and should be so treated. It was also held that in order to maintain the action the plaintiff must allege and prove his possession; otherwise he should proceed in ejectment.
Milligan v. Savery, 6 Mont. 129, 9 Pac. 894, was an action of the same character; and although the'case went off upon a motion for nonsuit, as did also Wolverton v. Nichols, supra, the latter case was cited, and the conclusions therein announced were approved.
The case of Mantle v. Noyes, 5 Mont. 274, 5 Pac. 856, was an action under-the statute to determine conflicting claims to real estate between the patentees of a placer mine and the locators of a quartz lode. The fundamental question at issue, as in the other cases cited, was the legal title to the property in controversy; and yet it was expressly decided that the issue of fact presented was to be finally determined by the court, and that a jury could not, as a. matter of right, be demanded by either of the parties; and the case of Gallagher v. Basey, supra, Avas considered at some length, and expressly approved.
Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153, Avas another case iirvolving adverse claims to mining ground under the statute. The question of the right of trial by jury
In all these eases the main issue involved was the question of legal title, and yet the court proceeded as in equity, and not at. law, and determined it without the aid of a jury, or, if a jury was called, its findings were regarded as advisory only.
This was the condition of the law on this subject at the time the constitution was devised by the convention and adopted by the people. Since that time all of these cases have been repeatedly cited and approved. (Sklower v. Abbott, 19 Mont. 228, 47 Pac. 901; Murray v. Polglase, 23 Mont. 413, 59 Pac. 439.) Is it not reasonable to presume that the members of the convention used the language referred to with knowledge of these decisions, and that it was deemed wise not to overturn them ? Either this presumption must prevail, or this court must proceed to overturn them upon the presumption that the members of the convention did not inform themselves as to the condition of the law as declared in these cases, and intended something beyond what the language used by them in the constitution expresses. The subject is one of no little difficulty. But for these cases, we should hold that the right of trial by jury extends to all cases wherein the legal title or right of possession is at issue.
The revised form of the statute, so far as concerns cases of the class to which the present one belongs, embodies the same principle as the original section. The eases decided under the
The plaintiff alleged title and possession in itself. The court found the allegation true. Indeed, title to the surface of the conveyed portion, and of the B-arus and to the apex of the veins is admitted, as is also the possession of the ore bodies in controversy. An effort was made to show that the possession of the latter is wrongful, and therefore does not rest upon the legal title, by evidence that two of the veins are so situated with reference to the end lines of the Johnstown claim that extralateral rights in the direction of defendant’s ground cannot be asserted, and that development of the third is not sufficient to demonstrate its continuity and identity from the apex to the point in dispute. An attempt was also' made to show that, even if plaintiff has extralateral rights in the direction of defendant’s premises, defendant is entitled to all of the veins below a certain point, by reason of a union of them with certain veins having their tops or apices within the Pennsylvania claim; it being older in the date of its location than the Johnstown claim. Of course, if the theory of the defendant had prevailed, the action should have been dismissed. As it did not, the result must necessarily follow that the plaintiff has the title and lawful possession of the veins on the dip and strike, and is entitled to the relief demanded, notwithstanding the prima facie presumption in favor of defendant’s title to everything beneath its surface. This presumption was overturned and destroyed as soon as the identity and continuity of the plaintiff’s veins from their apices to the point in controversy was established; it being made to appear, also, that plaintiff had a right to follow them on their dip. These conflicting rights, dependent upon the physical and geological facts found upon an inspection of the surface and underground workings, are similar in their nature to those tried and determined in actions to determine adverse claims to surface rights, and are governed by the same principles.
Our conclusion, therefore, is that the court committed no error in denying a trial by jury.
3. The point is made that the evidence is not sufficient to
4. Many errors are assigned upon the admission and exclusion of evidence. We have given patient attention to them all. We do not think any error coinplained of in this regard of sufficient importance to warrant a reversal of the judgment or ordex*. It would be impossible for a coui't to try such a cause, consuming, as this did, 55 days in hearing evidence covering neai'ly 6,000 printed pages, without allowing some errors and irregularities to intervene. None of the rulings coinplained of were prejudicial. The evidence which was excluded was either subsequently admitted, or was of such character that it could not have affected the result. In every instance that which was admitted was competent and material for the purpose for which it was offered. We shall notice specially but one of the numerous rulings coinplained of. The defendant offered in evidence the notice of location of the Pennsylvania claim, in connection with the mesne conveyances before patent from the original locators to the defendant, all of which were excluded. This evidence was offered in support of the defendant’s theory that this claim was located before the Johnstown or the Par us claims, and that there are veins having their apices within the Pennsylvania claim which in their descent into the earth unite with those having their apices in the Parus and Johnstown claims; thus giving defendant title to the whole vein below the point of union. The evidence was all excluded on the ground that the notice was not verified as required by the statute of the territory of Montana in force at the time the location was made. Counsel for the defendant contend that this ruling was erroneous, for the reason that it excluded all evidence as to the date to which the patent relates, and also for the reason that the statute requiring the notice to be verified was in contravention of the organic law of the territory, prohibiting legislation by the territorial government “interfering with the primary disposal of the soil.”
5. Defendant argues that the court erred in refusing a postponement of the trial because of the amendments made to the complaint at the close of the evidence, and because the case was not then reopened for the introduction of other evidence by defendant in support of its various contentions. Dpon the theory that the amendments presented no issues other than those tried in the evidence, it was in the discretion of the court to permit the pleadings to be amended as it did, and to deny the motion for a postponement. (Palmer v. McMasters, 6 Mont. 169, 9 Pac. 898; Ramsey v. Cortland Cattle Co., 6 Mont. 498, 13 Pac. 247; Hartley v. Preston, 2 Mont. 415.) This discretion extends to the allowance of amendments, even after verdict and judgment, to make the pleadings correspond with the proof. (Wormall v. Reins, 1 Mont. 627; Randall v. Greenhood, 3 Mont. 506.) We have in the statement set forth the pleadings in full, together with the contentions made in the evidence. It is clear from an inspection of them that no new issues were presented by the amendments. The situation of the veins in the ground of both parties, both with reference to the boundary lines of all the claims, including the Rarus and the Snow Bird, and their dip and strike, with the geological formations and physicál conditions found beneath the surface, were fully agitated by the parties. Many expert witnesses were examined, who had spent much time in studying the workings in all of these claims in order that they might be able to testify intelligently. It does not appear from affidavits filed at the time the
6. The court, having found that the portions of the vein in controversy belong to the plaintiff by virtue of its extralateral rights, fixed in the decree the perpendicular planes limiting these rights along the strike. Toward the east the limit was fixed at a plane passing through the point where the veins depart from the conveyed portion through the south side line, 294 feet west of the east end line of the Johnstown, and parallel with it. Toward the west the limit was fixed at a plane passing in the direction of the line E, E, until it meets the plane of the west end line of the Johnstown, and thence in the direction of that line extended. The theory upon which the latter plane was thus fixed was that the owners of the Johnstown, in fixing the end lines of the surface boundaries of the conveyed portion as they did, thus indicated their intention to convey to the plaintiff all the veins on their dip in the same direction, and that, having subsequently conveyed to the defendant the remainder of the surface of the claim, it obtained only such portion of the veins as was not previously conveyed. The defendant contends that the deeds under which the plaintiff obtained title do not convey any extralateral rights at all, or, if they do, that such rights should be limited toward the west by planes parallel with the end lines of the Johnstown, passing through the points where the different veins pass through the end line E, E, and extended indefinitely to the south in the direction of the dotted lines L, M, and F, N.
The deeds in question are one executed by the patentees to the plaintiff’s grantors on March 7, 1883, and the deed to the plaintiff from his immediate grantor on January 13, 1897. The former grants all the right, title, and interest of the grantors “to that certain portion, claim, and mining right, title, and property, on that certain ledge, vein, lode, or deposit of quartz and
In determining the effect of these conveyances, regard must be had not only to the terms employed in them and the surrounding circumstances, but also to. the character of the property granted. An ordinary conveyance of agricultural land or of town lots describes the subject of the grant merely by metes and bounds, as so much of the earth’s surface. Tet, without specific mention, the grant includes the right of support from the lands adjacent thereto, as well as everything above and beneath the surface, unless, by apposite words contained in it, some reservation is made. These rights, conveyed without specific description, are not mere incidents, but are substantive parts of that which is described, to the extent that without them the subject of the grant is not susceptible of its appropriate use and enjoyment; in other words, the rights conveyed extend far beyond the specific words of description contained in the deed. Now, a patent from the United States to a quartz claim con
The fact that the end lines of the conveyed portion were fixed as they were does not, standing alone, justify the'conclusion that the grantors of the plaintiff intended thereby to limit or control in any way the extralateral rights as between the grantees of the different portions of the claim.
Plaintiff cites in support of the decree the case of Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co. (C. C.), 89 Fed. 529. In that case the deed of March 7, 1883, was considered by Judge De Haven, and the conclusion reached by him is in accord with the plaintiff’s contention. We do not approve the conclusion reached by Judge De Haven. It is founded mainly upon the case of Stinchfield v. Gillis, 107 Cal. 86, 40 Pac. 98. In that ease it is said, in part, that “if the proprietor of a tract of mining ground, which has been derived through several locations, should dispose of the same in parcels, irrespective of the lines of such locations, the rights of his grantees would be measured by the terms of their deeds.” The question in the case before us does not seem to have been definitely presented for decision by the facts, and what was said therein was apparently obiter.
In Richmond Min. Co. v. Eureka Min. Co., 103 U. S. 839, 26 L. Ed. 557, also cited by Judge De Haven, the point, though adverted to, was not decided; the facts showing that the plane of the division line agreed upon between the owners of the adjacent mines was understood, at the time the agreement was made, to extend downward toward the center of the earth. This
There is nothing in this record to indicate that, at the time the first deed was made, either of the parties knew the direction of the dip of the veins; nor is there any presumption that they had such knowledge. If it be true that they did not, what intention could they have entertained with reference to it? If the dip had subsequently been found to. be to the north, then, according to plaintiff’s view, its rights would have been of little value, because they would have been cut off entirely by the line E, F, extended toward the north a short distance beyond the north line of the Johnstown. The possibilities of the situation will be realized if we suppose all the veins to pass through the line F, A.
In the absence of any agreement, express or implied, we think the character of the property should control, and that only such extralateral rights are conveyed as appertain to the portion of the apex embraced within the boundaries of the conveyed portion, bounded by planes parallel with the end lines of the claim as patented. This theory seems to us to1 be entirely just, •and at the same time to avoid the result that would follow from the view contended for by the plaintiff; that is, that the extra-lateral rights conveyed are left to depend entirely upon the subsequent ascertainment of the direction of the dip,
A suggestion was made during argument that the west end line of the conveyed portion was fixed parallel with the east end line of the Narus in a compromise arrangement in the settlement of the conflict between the Karus and the Johnstown, and
In our opinion, the decree should be modified so as to fix the west end planes in the direction of the line L, M, at the points where the different veins pass through the line E¡, P; the plaintiff conceding that this is proper, if, upon a construction of the deeds, this court concludes that the trial court erred in fixing the west end plane in the direction of the line E, E.
"We do not understand that the court below undertook to adjudge any rights as between the plaintiff and the owners of the ground to the east of the Pennsylvania claim. The decree has not, nor could it have, anything to do. with conflicting rights beneath the Michael Devitt claim, because they are not within the issues in this case. The line fixed as to the direction of the boundary plane to the east was intended merely to give the direction of plaintiff’s rights beneath the surface covered by the Pennsylvania claim, and nothing 'more.
I. In the judgment entered by the lower court, the costs of the action were awarded to1 the plaintiff. In the bill or memorandum filed by plaintiff under the requirement's of Section 1867 of the Code of Civil Procedure, there were contained items, claimed as necessary disbursements, amounting in the aggregate to $324,134.68. The defendant moved the court, under the provisions of that section, to tax the bill; objecting to many of the items claimed as illegal. After a hearing the court made an order disallowing a portion of the bill, and directing judgment for the balance, amounting to $265,015.58., Complaint is made that four of'the items so charged, to-wit, for surveys done in preparation for trial, $1,166.66; necessary ex
Section 1866 of the Code of Civil Procedure declares: “A party to whom costs are awarded in an action is entitled to include in his bill of costs, his necessary disbursements as follows: The legal fees of witnesses-, including mileage, of referees and other officers; the expenses of taking depositions; the legal fees for publication when publication is directed; the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on the trial; the legal fees paid stenographers for per diem or for copies; the reasonable expenses of printing papers for a hearing when required by a rule of court; the reasonable expenses of making transcript for the supreme court; the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and such other reasonable and necessary expenses as are taxable according to the course and practice of the court, or by express provision of law.” Such items as those charged for models, for surveys, and for development work done in preparation for trial are not specifically mentioned among those enumerated in this section. They are therefore not taxable, unless they fall within the purview of the last clause, allowing “such other reasonable and necessary expenses as are taxable according to the course and practice of the court, or by express provision of law.” Evidence was introduced at the hearing touching the course and practice of courts in this connection. None of this, however, justifies the conclusion that it has become, by positive rule or custom, the course and practice of the court in the Second dis
But it is said by counsel for the plaintiff that all of these disbursements were necessary, and should be allowed, at the discretion of the court, under a liberal construction of the section of the statute quoted. The argument based upon necessity might with propriety be addressed to the legislative branch of the government. Courts, however, are bound by the statute, no matter what may be the necessities of the case, and may not go beyond its express provisions. It may be within the power of the legislature to lodge the whole matter of costs in the discretion of the courts, but until it does so they have no discretion in adjudging them, except in the class of cases mentioned in Sections 1853 and 1855 of the Code of Civil Procedure, among which the present case does not fall.
It is also said that the models used at the trial to illustrate the evidence and contentions of the parties are in fact maps, and the necessaray expenses of preparing them should be allowed as for maps “required and necessary to be used on the trial of the hearing.” A map is a drawing upon a plane surface representing a part of the earth’s surface, and the relative position of objects thereon. It may also' be so drawn, as was the case here, to show the geological structure and other physical facts necessary to a complete understanding of the matter at issue. A model is a fac simile in three dimensions, — a reproduction in miniature of the object under investigation. The one in controversy here is a miniature reproduction in three
For some reason not explained, the official stenographer did not attend, the trial, and by agreement each party employed its own stenographer to report the evidence. This was done by consent of the court, and both of the stenographers thus employed took the oath required by law of official stenographers. The item charged for expenses for stenographer and copies is made up of per diem paid by the plaintiff to its own employe, and for copies of the evidence furnished by him to the plaintiff’s counsel from day to day to aid them in the examination of witnesses. It is contended by counsel for plaintiff that this item is properly chargeable under the head of “legal fees paid stenographers for per diem or for copies.” The per diem referred to, however, is the legal fee paid by each party at the beginning of the trial, under Section 374 of the Code of Civil Procedure, and the copies mentioned are such as are provided for in Section 373, to be used in the preparation of bills of exception or statements on motion for a new trial. Legal fees are such as are fixed by law, and there is no' requirement of law to pay stenographer’s fees, except in the section cited, fixing fees to be paid to official stenographers appointed by the court under authority of Section 370. All items complained of must therefore be disallowed.
•In order to present the matter of costs to this court, the defendant reserved its exceptions to the order taxing costs, and made the bill embodying them a part of the record on appeal from the judgment. It also took an independent appeal from the order taxing costs. The questions involved are properly reviewable on the appeal from the judgment. An appeal does not lie from the order. (Murray v. Northern Pacific Railway Co., 26 Mont. 268, 67 Pac. 625.) The appeal from this order is therefore dismissed.
Tbe order denying a new trial is affirmed. Tbe cause is remanded, with directions that tbe court below modify tbe decree by disallowing tbe items of costs complained of, and by limiting tbe extent of tbe plaintiff’s extralateral rights toward tbe west by fixing tbe west boundary planes in tbe direction of tbe line L, M, as indicated on diagram 1, at tbe points where tbe different veins pass through tbe line E, E. When so modified, tbe decree will be affirmed. Tbe defendant will recover one-half of tbe costs of appeal.
Modified and Affirmed.
Concurrence Opinion
I concur in the opinion of tbe Chief Justice, and in tbe conclusions reached and stated by him. As to tbe matter of tbe right of trial by jury, I am, as be is, of tbe opinion that, when tbe constitution was framed and adopted, tbe framers thereof and tbe people were supposed to know what tbe then right- of trial by jury was, and tbe provision of tbe instrument referred to was adopted with its meaning to be understood in tbe light of tbe law as to tbe right of trial by jury as adjudicated at tbe time of such adoption. Nothing in tbe opinion or conclusions of tbe Chief Justice should be understood as invading tbe right of tbe people to trial by jury as they bad it at tbe time of the adoption of tbe constitution, and this case may be only a precedent as to what tbe law affecting such right shall be under circumstances similar to those appearing in tbe record of the appeal now here decided.
Trial by jury of the legal title to tbe ore bodies in controversy was, as I believe, a matter of right. For this reason I dissent from tbe conclusion announced in paragraph numbered 2 of tbe foregoing opinion, and shall, if other duties permit, hereafter express my views upon tbe subject. With this -very important exception, I agree with tbe results reached upon tbe other questions considered in tbe opinion.