34 Nev. 67 | Nev. | 1911
Lead Opinion
By the Court,
Petitioner herein contends that the respondent court was without jurisdiction to make the order of survey in question, for the reason that section 3 (Comp. Laws, 252) supra, does not authorize such order in advance of a pending suit; that, if said section may be so construed as to permit such order in advance of a pending suit, then the same would be in violation of the constitution and void; that the said applicant, H. E. Orr, was not within the class of persons mentioned in section 1 of said act (Comp. Laws, 250), supra, and hence not entitled to an order in any event under its provisions.
There have been but few cases considered by the courts involving the question of the power of a court to make an order for a survey of a mine prior to the institution
It was held by the Supreme Court of Montana in St. Louis M. & M. Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, that under the provisions of section 376, Code Civ. Proc., the then practice act of that state, an order could be made without a suit pending for a survey of the underground workings of a mine in the possession of another in which the party making the application has a right or interest. Upon appeal to the Supreme Court of the United States, involving the validity of the judgment, as tested by the fourteenth amendment of the federal constitution, the judgment of the Montana court was affirmed. (152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398.)
In this later case the court, by Brewer, J., said: "The frequency with which these orders of inspection have of late years been made, and the fact that the right to make them has never been denied by the courts, is suggestive that there is no inherent vice in them. And, if the courts of equity by virtue of their general powers may rightfully order such an inspection in a case pending before them, surely it is within the power of a state by statute to provide the manner and conditions of such an inspection in advance of suit.”
Section 376 of the earlier practice act of Montana was incorporated in the practice act of that state subsequently adopted, and is now section 1317 of the present practice act (section 6876, Revised Codes of Montana). It was held in State ex rel. Anaconda C. M. Co. v. District Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103, that this section only applied in cases in which the parties seeking a survey had an interest in the property sought to be surveyed, and that in all other cases the power to order a survey was governed by sections 1314 and 1315, Code Civ. Proc. 1895 (Rev. Codes, sections 6874, 6875), by the provisions of which a survey could not be ordered excepting in a pending action. This decision has been affirmed in several subsequent decisions of the Montana court.
There is but one other case to which our attention has been called or which we have been able to find involving the question of an order of survey made in the absence of a pending suit, to wit, the case of In re Carr, 52 Kan. 688, 35 Pac. 818. The Carr case was in habeas corpus and the petitioner who had been committed for contempt for refusing admittance to the surveyor was discharged, but not upon the ground that the lower court was without jurisdiction to make the order in question. The Kansas statute applied only to coal mines and empowered the court or judge, upon the affidavit of a person in which it shall be made to appear that such person shall have good reason to believe that another person or persons, corporation or corporations, are without authority encroaching upon the land of the person aggrieved to make an order directing the county surveyor to survey the mine or mines of the person or persons, corporation or corporations, accused for the purpose of ascertaining the truth thereof. It is further provided in the act that:
" Sec. 3. Whenever it shall be made to appear by petition verified by the oath of the plaintiff, his agent or attorney, and by the survey of the county surveyor, that any person or persons, corporation or corporations, is or are, without authority, mining or taking coal from the land of the plaintiff, whether held by lease or otherwise, it shall be the duty of the proper district court in term time, or the judge thereof in vacation, to grant a temporary injunction restraining such person or persons, corporation or corporations, from mining or taking coal from such land till the further order of the court or judge.
*74 " Sec. 4. The proceedings in such case shall be in all respects similar to the course of procedure in actions for injunction.” (Laws 1877, c. 127.)
The Kansas statute was attacked as being unconstitutional, but whether the attack was made upon the ground that the legislature had no power to provide for such a survey in the absence of a pending suit does not appear. The constitutional question is disposed of by the majority opinion of the court in the following terse sentence: "We perceive no good reason for holding the act unconstitutional so far as it applies to property in Kansas.” Johnson, J., concurred in the view that a survey could not be ordered or compelled in territory outside of the state (the coal mine being upon the boundary line between the States of Kansas and Missouri), but stated: "I do not desire to express any opinion upon the other objections made to the validity of chapter 127 of the laws of 1877.” In the opinion of the court by Allen, J., appears the following: "The remedy afforded by the act is an injunction. The survey is merely preliminary and for the purpose of ascertaining whether a cause of action exists.” The Kansas statute has never been involved in any subsequent case thus far reported.
We think it may be conceded at least for the purposes of this case, that there is no inherent constitutional impediment against the legislature empowering the court or judge, upon the proper showing, to make an order for the survey of mining property in the absence of a pending suit, and that the only question we need consider in the present case is whether the statute of this state in question empowers a district court or judge to make such an order.
It is now well settled that courts of equity have inherent power to make orders of this character in cases pending before them. Most, if not all, of the mining states, however, have statutes regulating the procedure to obtain these orders. These statutes generally provide for such orders to be made only in pending actions, and the only exceptions thereto may be found in the Kansas and Mon
In enacting the statute of December 17, 1862, supra, the territorial legislature did not use language that was the most apt to express clearly its purpose and intent. This was doubtless the first statute passed in this country governing an order of survey of mining properties to be obtained by a party who had no interest therein, but who was affected by the operations thereof. Section 1 of the act, as originally passed, did not contain the last sentence quoted, supra, which was embodied therein by the amendment of 1891. Counsel upon both sides in this proceeding have presented elaborate arguments upon the construction of section 3 of the act; counsel for petitioner in this proceeding contending that the section should be construed only to permit an order for survey after the action is instituted, and counsel for the respondent contending for the contrary construction. One need but read the arguments advanced by respective counsel to appreciate that the section is ambiguous in many particulars.
In construing any statute the language of which is not clear, it is well first to consider the law as it existed prior to the enactment. At the time this statute was enacted, no court of equity in this country had ever exercised its inherent power to order a survey of the underground workings of a mine, and, indeed, it is doubtful if any other character of survey had been so ordered. The first instance in this country in which a court of equity had ordered such a survey was in the Circuit Court of the United States for the District of Nevada in the case of Thornburgh v. Savage Mining Company, Fed. Cas. No. 13,986, 7 Morr. Min. Rep. 667, decided in 1867. The next case reported is that of Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80, decided in 1869.
From the beginning of about the nineteenth century courts of chancery in England exercised the power in pending suits to order surveys of the surface and under
Sections 258 and 259 of the practice act of the Territory of Nevada, which substantially corresponds to sections 260 and 261 of our present practice act (Comp. Laws, 3355, 3356), provided as follows:
"Sec. 258. The court in which an action is pending for recovery of real property, or a judge thereof, may, on motion, upon notice to either party, for good cause shown, grant an order allowing to such party the right to enter the property and make a survey and measurements thereof, for the purpose of the action.
" Sec. 259. The order shall describe the property, and a copy thereof shall be served on the owner or occupant, and thereupon such party may enter upon the property with necessary surveyors and assistants and make such survey and measurements; but if any unnecessary injury be done to the property, he shall be liable therefor.”
From the foregoing it appears that at the time the statute of 1862 was enacted no court possessed power to make an order of survey excepting in a pending suit. Courts of equity in this country had not up to that time assumed the exercise of their inherent powers in this regard, and they were then undefined. The statute of the territory had provided for an order of survey in pending actions for the survey of real property, but whether this statute was or is broad enough to permit a survey of the underground workings of a mine in an action for damages in trespass committed below the surface of the earth may seriously be questioned.
We think it appears from a reading of section 1 of the act in question that the legislature intended either to create a new cause of action where none existed before or to make clear and unquestionable what may have been deemed a doubtful right, particularly that of enjoining mine owners or operators from so conducting their operations as to endanger the safety of adjoining properties. The right to recover damages for a trespass was so well known and understood that it needed no statutory pro
Were the act equally susceptible of two constructions, we would be disposed to hold that the legislature would not be presumed to intend a radical change in existing procedure, and would construe the act in harmony therewith. In other words, we would not construe a statute so as to permit such an order for survey without a suit pending in the absence of language clearly manifesting such an intent upon the part of the legislature. We think section 3 does not express such a clear intent, but, upon the contrary, there is language used which, under a well-recognized rule of statutory construction, manifests a contrary intent. Both parties to this proceeding have laid stress upon the following sentence of section 3 as supporting their divergent views as to the legislative intent as deduced from the- language of the statute: "The costs of the order and survey shall be paid by the persons making the application, unless such parties shall subsequently maintain an action and recover damages as provided for in the first two sections of this act, ” etc. We think the contention of counsel for petitioner herein supported by the better reasoning. If the word "maintain” as used in section 3 is given the same meaning as it has in section 1, then it means to support and carry on an action that has theretofore been instituted.
The word "maintain,” as used frequently in statutes in reference to actions, comprehends the institution as well as the support of the action, and the statutes of this state contain many instances where it is used in this
“ Where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and, where its meaning in one instance is clear, this meaning will be attached to it elsewhere, unless it clearly appears from the whole statute that it was the intention of the legislature to use it in different senses.” (36 Cyc. 1132, and authorities cited in notes.) Much stress has been laid on the fact that section 3, supra, does not use the word "plaintiff” as the one who may apply for the survey or upon whose behalf such application may be made, but uses instead the words "any person or persons named in the first two sections of this act, shall have the right to apply,” etc., also, that the affidavit is required to set forth facts that would be disclosed by the complaint were an action pending, as indicating that the legislature did not contemplate a pending suit at the time of the application and order for the survey.
Conceding the force of this argument, we do not deem it sufficient to outweigh the reasons given in support of the contrary construction. The only person or persons
The Colorado statute, like ours, does not use the terms ''plaintiff” and "defendant” to indicate the parties to the proceeding to obtain the order, but the Colorado court construed their statute to apply only in case of a pending suit. While possibly not a matter to be considered of any considerable weight, it is worthy of note that the text-writers on mining law have placed the Nevada statute in question in the category of those requiring an action pending before an order of survey may be made. (Lind-ley on Mines, 873; Snider on Mines, 1637; Morrison’s Mining Rights, 14th ed., p. 432; Costigan on Mining Law, p. 519.) Mr. Snider in his work says: "It will be readily observed that all these statutes agree upon one proposition, namely, that an action must be pending at the time the application for a survey is made. ”
Having reached the conclusion that the statute in question does not authorize an order of survey excepting in a
The order under review herein is annulled.
Dissenting Opinion
dissenting:
I am unable to concur in all the conclusions reached by my learned associates. As it has been held by the Supreme.Courts of Kansas, Montana, and of the United States that the legislature may constitutionally provide for surveys without the institution of suit, and as all of the members of this court concede that this is a correct construction of the law, and no court has decided to the contrary, the only question for determination is whether the legislature has authorized the ordering of surveys before an action is commenced.
A careful examination of the statute makes it clear that the legislature has empowered the district courts and judges to order the making of surveys without suit, and has designated the persons upon whose application they may be ordered. The statute neither directly nor by implication provides that application for the survey may be made only by a party who has previously commenced an action, or that any suit must be pending before the applicant will be entitled to an order for the survey. Consequently the decision of the majority of the court legislates into the act a condition not placed there by the legislature. This is quite apparent from the first few lines of section 3 of the statute, which provide that: "Any person or persons named in the first two sections of this act, shall have the right to apply for and obtain from any district court, or the judge thereof, within this territory, an order of survey in the following manner: An application shall be made by filing an affidavit of the person making the application, which affidavit shall state, as near as can be described, the location of the mine or mines of the parties complained of, and as far as known, the names of such parties; also, the location of the mine or mines of the parties making such
These provisions plainly allow any person, company, or corporation, being the owner of, or in possession under a lease or contract for the working of any mine "to apply for and obtain from any district court, or the judge thereof, an order of survey, by filing the affidavit of the person making the application,” stating the things required by the statute to be in this affidavit, none of which require, or make any reference to, a pending or other suit. The statute then directs positively that: " Upon the filing of the affidavit as aforesaid, the court or judge shall cause a notice to be given to the party complained of, or the agent thereof, which notice shall state the time, place, and before whom the application will be heard, and shall cite the party to appear in not less than five or more than ten days from the date thereof, to show cause why an order of survey should not be granted; and upon good cause shown, the court or judge shall grant such order, directed to some competent surveyor or surveyors, or to some competent mechanics, or miners, or both, as the case may be, who shall proceed to make the necessary examination as directed by the court, and report the result and conclusions to the court, which report shall be filed with- the clerk of said court. ”
The language quoted is all that is provided by the stat
Effort is made to justify the decision by a technical construction of the next succeeding sentence in section 3, which relates only to costs of the order and survey after they have been made, and which provides no requirement and makes no reference in regard to the application or order for the survey, and which sentence reads: "The cost of the order and survey shall be paid by the persons making the application, unless such parties shall subsequently maintain an action and recover damages, as provided for in the first two sections of this act, by reason of a trespass or damage done or threatened prior to such survey or examination having been made, and in that case, such costs shall be taxed against the defendant as other costs in the suit. ” True, a word used in different sections of the statute will ordinarily be
If the word "maintain,” as used in the sentence just quoted, be considered as referring to a suit previously brought, as held in the opinion, this construction, as given by a majority of the court, would refer only to the costs of the order and survey, and not to the application for the making of the order, and would only be equivalent to making this sentence of the statute read as it does now, with the addition after the word " action ” of the words "commenced before the application for the survey was made. ” Hence the decision is based upon a section which relates only to costs, and to a question which is not before this court, and was not before the district court; for, no survey having been made, no question relating to the costs of the application and survey has been presented by the petition or pleadings. If the word "maintain” were among any of the provisions relating to the application or order for the survey, or if it be considered where it stands in the sentence relating only to cost's, the language of section 3 in several particulars indicates to my mind that the legislature did not intend to require the institution of a suit before the application or order for the survey.
If the legislature had intended to require the commencement of a suit, it may be assumed that they would have so stated, and that the law-making body did not intend a condition which it did not impose. As there was a practice act already in force which provided for surveys in pending suits, it would have been useless for the legislature to enact that the applications and orders for the survey could be made only after suit. It would also seem that by providing that "the costs of the order and survey shall be paid by the person making the application, unless such parties shall subsequently maintain an action and recover damages,” the legislature used the word "maintain” in its broad sense of "bringing and maintaining” an action, for otherwise the provision in
’ It is a well-established rule of construction that a statute will be so construed as to give effect to its language, if possible. The omission from all that part of the act relating to the application and order for the survey of any language relating to a suit or to the parties to an action, and, on the contrary, the use of words not requiring the application for the survey to be made by a party to a suit or in an action pending, but allowing it to be made by any person who is the owner of, or in possession under a lease for the working of, adjoining ground, indicate that it was not the intention of the legislature to restrict the application for the survey to a party to an action previously commenced. The policy of the statute in this regard is a matter for legislative judgment; but, where the meaning of the statute is doubtful, the court will ordinarily so construe the statute as to give it an effect which carries the best policy, for in doubtful cases that' is presumed to be the one which the legislature intended.
The best policy would allow the survey to be ordered in advance of suit, so that the applicant for the survey would be able to ascertain the true conditions and facts, so that he may properly allege them in his complaint or not commence any action and avoid litigation if he is not justified as he may believe at the time he applies for the survey. Where there are grounds for a suit, there is no good reason why the law should confine a knowledge of the conditions to one of the parties, who is liable to the other, nor why the superintendent or manager of a mine should prevent an adjoining owner, whose ore he may have extracted hundreds of feet below the surface, and the stockholders in general, from ascertaining the facts. Light and truth are better than darkness and concealment. The statute wisely provides that "the parties
The word "maintain” is often used in our statutes in relation to corporations, administrators and others with a meaning that includes the commencement of or right to institute an action. In 5 Words and Phrases Judicially Defined, p. 4278, in reference to the meaning of the word "maintain,” there are cited, under the subdivision "As commence an action,” seven cases holding that the word "maintain,” when used in statutes relating to actions, is synonymous with or means "commence,” "institute” or "begin.” In one of these it is said: "Men, both in and out of the profession of law, often speak of maintaining an action, having reference to one yet to be instituted. ” (Boutiller v. The Milwaukee, 8 Minn. 97, 101; Byers v. Bourret, 64 Cal. 73, 28 Pac. 61; Smith v. Lyon, 44 Conn. 175, 179; Burbank v. Inhabitants of Auburn, 31 Me. 590, 591; Gumper v. Waterbury Traction Co., 68 Conn. 424, 36 Atl. 806; Kinsey & Co. v. Ohio Southern R. Co., 3 O. C. D. 249, 250; New Carlisle Bank v. Brown, 5 O. C. D. 94, 95.) Under the next heading, "As continue an action,” the same work states that "maintain,” as used in a pleading, means to support what has already been brought into existence, and cites the two cases relied upon by the petitioner and the majority of the court (California Sav. & Loan Soc. v. Harris, 111 Cal. 133, 43 Pac. 525; Carson-Rand Co. v. Stern, 129 Mo. 381, 31 S. W. 772, 32 L. R. A. 420), and another case (Moon v. Durden, 2 Exch. 30), stating that "maintain” in pleading has a distinct technical signification.
It may be observed that the prevailing opinion rests upon these two cases defining the word "maintain,” when used in a pleading, as meaning "to uphold or sustain an action already commenced,” and upon the use of that word in section 3 of our statute, where it only relates to a question of costs, which is not before the court. Although "to maintain” is frequently and properly used in the sense of sustaining or upholding what has already been begun, these cases are distinguishable from, and
The language of the statute in Montana allowing the survey before suit and the Colorado act which was held not to so allow the survey are so dissimilar to ours that the decisions in those states do not lend aid to the construction of our enactment.
The Colorado section relating to surveys closes with the provision that "the costs of the proceeding shall abide the result of the suit.” Nor do the cases of Carson-Rand Co. v. Stern and California Sav. & Loan Soc. v. Harris apply to questions similar to the one here involved. In them it was held that compliance with the law by a foreign corporation after instituting an action and before the filing of the plea in abatement of the suit on the ground that it had not complied with the statute will remove the right to defend on the ground of noncompliance under a statute providing that no action shall be maintained or defended in any court by a foreign corporation until it files articles of incorporation. These cases, and many others, including Ward v. Mapes, 147 Cal. 747, 82 Pac. 426, are reviewed in National Fertilizer Company v. Fall River Five Cents Savings Bank, 196 Mass. 458, 82 N. E. 671, 14 L. R. A. (N. S.) 561, 565, and are there said to be in accordance with the weight of authority.
The district judge was duly empowered by the statute to order the survey without any suit having been commenced, and his action in this regard ought to be sustained.