statutes, and this is a constitutional exercise of legislative power.1 Thornburgh v. Savage Min. Co., 1 Pac. Law Mag. United States. 267 (1867), C. C. D. Nev. In an action for injunetion to restrain the defendant from mining upon a certain lode, the question involved was averred to be whether the property described was a separate and distinct lode from a lode which was acknowledged to be the property of defendant. Upon the application of the plaintiff a survey and inspection were ordered. "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? and can it refuse to learn these facts? But one adjudication of this subject can be found in the books, and this is in conformity with the views here expressed, viz., Bainbridge on Mines. "Of course, before granting an order of this kind the court must be satisfied that the application is made in good faith, and in granting it will pay due regard to the convenience of the party affected." Baldwin, J. Montana Co. v. St. Louis M. & M. Co., 152, 160 (1894), affirming St. Louis M. & M. Co. v. Montana Co., Ltd., 9 Mont. 288, post. Sec. 376, Code of Civil Procedure of Montana, is not in conflict with the provision of the Fourteenth Amendment to the Constitution of the United States, which prohibits any State from depriving any person of life, liberty, 1 Alabama, Act Feb. 8, 1893, Sess. Laws, 331; Arizona, Rev. Stats. 1887, sec. 2356; Colorado, M. A. S. 3164, 3176; Code, 364; Dakota, Comp. L. 1887, ch. 19, art. 1, secs 2014-15; Idaho, Rev. Stats. 1887, sec. 4542; Illinois, Hurd's Rev. Stats. 1895, ch. 94, secs. 2-5, p. 1052; Iowa, Rev. Code 1888, tit. x. ch. 2, p. 421, secs. 1230-32; Kansas, Gen. Stats. 1889, secs. 3835-39, 3843-45; Michigan, How. or property without due process of law. Brewer, J.: "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." Duggan v. Davey, 26 N. W. Rep. 887 (1886). In an acDakota. tion in equity to restrain defendants from prosecuting certain mining operations, they rested their right upon the existence in the ground in controversy of a vein having its apex in another claim belonging to them. Held, the court had power to make an order permitting the plaintiff, after the close of defendant's case, to make an inspection and survey of the mine, and of the drifts and tunnels extending from it to the ground in controversy. The statute giving a method of obtaining a survey in common law actions did not abridge the chancery power of the court, or restrict it to the method prescribed in the statute. In re Carr, 35 Pac. 818 (1894). Chap. 127, Laws of 1877, Kansas. does not authorize a survey by order of a district court of that part of a mine which is located beyond the State line, in the State of Missouri, even though the only means of access thereto is a deep shaft located in Kansas. Stockbridge Iron Co. v. Cone Iron Works, 102, 80 Massachusetts. (1869). Action of tort praying for relief in equity for injury to plaintiffs' land by digging and excavating openings into and under it, and taking mineral therefrom. The plaintiffs alleging that defendants concealed the injury, and prevented them from entering the shaft to ascertain its amount, asked, among other things, that they, by their agents, or proper officers of the court, might have free access into the said shaft, and any drifts and excavations accessible therefrom, in order to make a full survey of all the excavations into the plaintiffs' land complained of, and might be authorized to make all such surveys, exploration, and discovery, and do all such acts as in the premises were rightful and proper to be made or done. The court accordingly appointed viewers, empowering them, after hearing the parties, to appoint engineers, and direct the engineers and workmen employed by them to enter the shaft on the defendants' land, clear the water from the said shaft by pumping or otherwise, examine all excavations and drifts leading therefrom toward and under plaintiffs' land, and clear the same as far as necessary to ascertain what mineral had been taken from plain -- tiffs' land, and to do all acts that might be reasonably necessary to be done to effect the purpose of the decree. The viewers actually obtained access to the drifts by a new excavation made from a shaft of the plaintiffs on the plaintiffs' ground. Held, that if this were the cheaper mode of access, and reasonably necessary, it was within the terms of the order, and the expenses of the view, $4,841.07, which had been advanced by plaintiffs, were allowed with interest, such sum including an allowance for the use of plaintiffs' shaft and machinery in making the excavation. "Courts of law have power to allow the reasonable expenses of surveys and views in proper cases, and the fee bill does not apply to the expense of such proceedings. Mines are so situated that special and peculiar proceedings are sometimes necessary in order to attain the reasonable ends of justice in regard to the underground passages by which access to them may be obtained by trespassers." St. Louis M. & M. Co. v. Montana Co., Ltd., 9, 288 Montana. (1890), affirmed in Montana Co. v. St. Louis Co., 152 U. S. Code Civ. Proc. 376 is not unconstitutional as being unjust and oppressive. 160, ante. Blake, C. J.: "The source [of the statute] is unquestionably found in the chancery practice of England. . . "In this State the legislative department has endowed the chancery practice involved in this hearing with the form of law. We are not called upon to decide that the District Courts of the State may make the order complained of, in the absence of any requirement of the Code of Civil Procedure. We can vindicate with absolute certainty the existence of the right to make an order for the inspection and survey of a lode mining claim, where the appropriate steps have been taken by interested parties. . . . There is not an assertion or suggestion by any jurist that rights of property are impaired or transgressed by the making of the orders for an inspection and survey." The order may be issued without requiring bond and before suit. Blue Bird M. Co. v. Murray, 9, 468 (1890). Plaintiff, in following its vein on the dip and beyond the side lines of its claim, worked within the limits of defendant's claim. An injunction had been granted restraining defendant from working upon plaintiff's mining claim, and afterwards, on defendant's motion, an order was made, permitting him to prosecute certain specified work within his own boundaries, under certain restrictions and the control of the court, for the purpose of obtaining evidence for the trial of the case, and the ascertainment and determination of the rights of the parties, and the continuity and identity of the veins, and to prosecute development and other work pending litigation. Held, this order was within the powers of a court of equity, and being in effect an order for an inspection and survey for the discovery of the truth, was not an abuse of judicial discretion. Silver M. Co. v. Fall, 6, 116 (1870). Where it appeared Nevada. that plaintiff owned the Arizona Silver Ledge south of a certain line, and defendant owned north of the line, and suit was brought to recover a deposit and prevent defendant working south of the line, on the theory that it was on the ledge, which defendant denied, it was error for the court to charge that the plaintiff must, in order to recover, establish his theory conclusively, and not merely by a preponderance of evidence. There is nothing in section 160 of the Practice Act (which authorizes a delay in mining cases for the purpose of allowing devel opments to be made) to show that it was intended to make actual development the only or even the best evidence. Thomas Iron Co. v. Allentown Mining Co., 28 Eq. New Jersey. 77 (1877). Where the owner of mineral lands suspects that the adjoining owner has mined over the line, and has taken minerals from his land, and refuses to allow him to enter the mine to make an inspection of the fact, equity will grant an order of inspection. CHAPTER XXIV. JOINT OWNERSHIP OF MINES. I. Rights and Relations of Joint II. Partition of Mines. I. RIGHTS AND RELATIONS OF JOINT OWNERS.1 EACH of the joint owners of minerals in place may mine them without the consent of the others; he may occupy and use the common property for the purpose contemplated by all, and it is no valid objection that his use is consumption. His mining is not waste. But he must account to his co-tenant for whatever mineral he extracts, in which account he may deduct the cost of extraction. He is only entitled to his proportion of whatever is mined, and may not claim to retain all that he has himself taken out, on the ground that it is no more than his proportion of all the mineral in the mine. One joint owner who works a mine cannot maintain an action against his co-owners for their share of the expense of so doing, in the absence of an express or implied contract on their part to pay. He is confined to his remedy by account.2 The owner of an undivided interest in a mine is entitled to the possession of the whole as against one who has no title to any portion of it; but he may not exclude his co-tenant, even though he have the greater interest, and if he is unable to respond in damages, he may be enjoined from holding possession of and working the mine. Any act of one tenant in common in reference to the joint estate will accrue to the benefit of all. Consequently, if one of several joint owners of a mining claim obtains a patent therefor, he will be treated as a trustee of the shares of his co-owners. 1 See also Chap. VI., Div. II., C. 2 See Pennsylvania, Act April 25, 1850, P. L. 573; McGowan v. Bailey, 179 Pa. 470 (1897); and also Pennsylvania, Act May 6, 1891, P. L. 41. |