Bacon v. Federal Mining & Smelting Co.

SULLIVAN, C. J.,

Dissenting. — I am unable to concur in the conclusion reached by my associates. The appellant is the judgment creditor of an owner of one-eighth interest in the Skookum mining claim; the respondent, the Federal Mining Co., owns the other seven-eighths interest. To enforce said judgment, which is for more than $50,000, execution has been levied upon the one-eighth interest in said mining claim belonging to the judgment debtor. That one-eighth interest is in the custody of the law by reason of levying such execution. So far as the record shows, the judgment debtor raises no objection to the appellant, who'is judgment creditor, inspecting said mine in order that he may intelligently bid for said property at the execution sale. In the opinion of my associates it is held that sec. 4542, Rev. Codes, contains the only authority and power of a court of equity to grant an inspection of real property; that the provisions of that section are only a declaration of what has been recognized as the general equity powers of a court, and that a person to be entitled to an inspection must have a “bona fide claim to the possession, title of or interest in any real property or mining claim including any ledges thereof,” etc., and since the appellant is only an execution creditor he has no “bona fide claim to .... or interest in” said mining claim, therefore a court of equity has no power to order an inspection. In support of the rule there laid down, my associates cite the following authorities: St. Louis Mining & Milling Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, 152 U. S. 160, 14 Sup. Ct. 506, 38 L. ed. 398; 2 Lindley on Mines, sec. 873; Costigan on Mining Law, sec. 148; Barringer & Adams on the Law of Mines and Mining, p. 739, all of which refer to mining claims, and none of which involves the question presented in the case at bar.

In the St. Louis M. & M. Co., above cited, it appears that the St. Louis Co. and the Montana Co. owned adjoining-claims ; that the Montana Co. had constructed shafts, tunnels, stopes and drifts on its own property, and it was the contention of the St. Louis Co. that from those shafts, tunnels and *144drifts the Montana Co. had crossed the line of their own property and gone into the mining claims of the St. Louis Co. and had extracted large quantities of ore therefrom, and it was alleged that it was necessary for the St. Louis Co.' to make an inspection and surveys of the underground workings alleged to have been made on the St. Louis Co. ’s claims, and it was necessary in order to make that inspection and survey for the St. Louis Co. to enter upon the mining claims, in which they claimed no interest, and go down the shafts into the tunnels and drifts that the Montana Co. had constructed on its own ground in order to get into the workings alleged to have been made on the St. Louis Co.’s grounds. The St. Louis Co. claimed no bona fide right to the possession of or title to or interest in the mining claim on which such shafts and tunnels were made, and the court granted the right to enter into said shafts and tunnels and to inspect and make surveys for the purpose of ascertaining the extent of the work, if any, that the Montana Co. had done upon the St. Louis Co.’s ground. That action of the court was sustained both by the supreme court of Montana, and the supreme court of the United States. That proceeding was brought under sec. 376 of the Code of Civil Procedure of Montana, which section is in part as follows:

“Whenever any person shall have any right to or interest in any lead, lode, or mining claim which is in the possession of another person, and it shall be necessary for the ascertainment, enforcement, or protection of such right or interest that an inspection, examination, or survey of such mine, lode, or mining claim should be had or made; or, whenever any inspection, examination, or survey of such lode or mining claim shall be necessary to protect, ascertain, or enforce the right or interest of any person in another mine, lead, lode, or mining claim, etc.”

That section is not identical with said sec. 4542 of our Rev. Codes, and that decision is not in point in the ease at bar. That section of the Montana statute was attacked as unconstitutional, as being unjust and oppressive, as authorizing a trespass upon private property. The petitioner *145claimed no right to the possession of or title to an interest in the mining claims on which said shaft was constructed. Both the supreme court of Montana and the supreme court of the United States held, that statute constitutional. The decision by the supreme court of Montana is well considered and many authorities are cited, both English and American. In the course of the decision the court said:

“It will be seen that the order of the court below followed an unbroken line of precedents. The rule of equity which has been enforced by the courts of England and America is not of statutory growth. In this state the legislative department has indorsed the chancery practice involved in this hearing with the form of law. We are not called on 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. The' authorities treat the proceedings as the proper mode of securing ‘the best evidence of which the ease in its nature is susceptible.’ 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. . ... We have stated that the power of the courts of England over this matter was exercised as a branch of their chancery jurisdiction. In 1854 the common-law procedure act was created, and the fifty-eighth section provides that ‘either party shall be at liberty to apply to the court or a judge for a rule or order for the inspection by the jury or by himself, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute; and it shall be lawful for the court or a judge, if they or he think fit, to make such rule or order.’ ”

The application in that ease was made before any suit was brought to determine the rights of the parties. It is stated in the opinion as follows:

*146“The bare fact that the St. Louis Mining & Milling Company of Montana petitions for an inspection and survey of: the mining property referred to before its complaint has been filed is immaterial.”

In Winslow v. Gifford, 6 Cush. (Mass.) 327, it is held that an act of the legislature is not unconstitutional which authorized certain parties, to go upon private lands and make surveys and establish boundaries. It is there said r

“In effecting such an object, there may be, and often is, a brief, and, as it were, momentary, interference with the absolute right of the owner of real estate. This exercise of power, in its various forms, is one of every day’s occurrence; indeed, so common as to be acquiesced in without remonstrance, or even a question as to the right so to do. ’ ’

In the St. L. M. & M. Co. v. Montana M. Co. ease the only question presented to the United States supreme court was whether the right to inspect was in violation of any of the provisions of the constitution and that court held that it was not. (152 U. S. 160, 14 Sup. Ct. 506, 38 L. ed. 398.) Justice Brewer in delivering the opinion in that case says: “Inspection orders like this have been frequently .made, sometimes under the authority of special statutes and sometimes by virtue only of the general powers of a court of equity,” and cites numerous cases in support of that proposition and quotes from Thornburgh v. Savage M. Co., Fed. Cas. No. 13,986, as follows: -“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.” The court further said: “It was conceded that such entry and occupancy created a slight trespass upon the absolute right of the owner to an undisturbed and exclusive use of his real estate, but it was held that if the occupancy was reasonably necessary for some public purpose, was temporary, and with no unnecessary damage, it carried no right to compensation. All these eases involve some invasion of the rights of the owner to the possession and use of his property, yet the necessities of justice seem to compel it.....But by an inspection neither the title *147nor the general use is taken, and all that can be said is that there is a temporary and limited interruption of the exclusive use. And it is in that light that the question of the validity of this statute is to be determined.”

And again: “It is objected that the statute does not define the quality of ‘right to or interest in’ the mining claim which entitles to an inspection. But does the amount of a party’s interest determine the question of the constitutionality of a statute passed to enable an accurate determination thereof? Suppose it be true that a petitioner has but a limited interest in a mine, has not that petitioner a legal right to the protection of that interest equal to that of the other owners? Has he not the same constitutional right to any means of ascertaining and enforcing that interest that belongs to any other party interested in the mine? Indeed, it may be said to be generally true that the weaker a party and the smaller his interest the greater the need of the strong hand of the court to ascertain and protect his rights. It is true, the quality of the right or interest is not defined, but it must, in order to come within the statute, be a ‘right to or interest in’ the mining claim. The language is general and comprehensive, because the intent is to include within its purview every actual right, every real interest.”

The appellant has a real interest in said one-eighth interest in said mining claim, in that as his execution is levied in said interest he has the actual right to have his judgment satisfied out of said interest, and it is not for the respondent, who is the judgment creditor’s cotenant, to say that appellant shall not have the fruit of his judgment.

So, under the provisions of said see. 4542, any person having a “how fide” interest, no difference how small, in any real property, has the right, upon a proper showing, to an inspection thereof, and I maintain that a judgment creditor who has levied his execution upon real property has a substantial interest in such property, and when it is necessary to protect his interests at the execution sale, he has a right upon proper showing to an order for the inspection *148of such property. It is a remarkable proposition to me that a court of equity has not the general power without any statute authorizing it to order an inspection of property that has to be sold at execution, where the owner is not objecting and the cotenant, who has no right to object to the sale of the property on execution, may defeat such inspection by refusing to grant it. If this be true, it might well be said that the arm of equity is too weak to secure to a litigant justice.

In United States v. Nourse, 9 Pet. (U. S.) 8, 9 L. ed. 31, the supreme court of the United States defined the word “execution” as “that which gives the successful party the fruit of his judgment. ” It is also defined as the 1 ‘ end of the law; the act of carrying into effect the judgment or decree. ’ ’ (17 Cyc. 921.) The sole aim and object of an execution is to secure the judgment creditor the fruit of the litigation. According to my associates’ theory, the court had jurisdiction to render the judgment but has no jurisdiction to see that the execution sale is so conducted as to give the creditor the fruit of his litigation. The question arises, would the sale under execution without the inspection asked by appellant secure him the fruit of his suit? The facts are that the plaintiff has a judgment exceeding $50,000 against Hanley, who owns an undivided one-eighth interest in the Skookum mining claim. Appellant filed his affidavit stating that he was advised and believed that he will be the only bidder at the sale. The value of the Skookum claim is problematical. The one-eighth interest of Hanley therein may be worth a million dollars or it may not be worth thirty cents. The appellant could not bid intelligently at the sale without an inspection of the mine. How could he therefore obtain the fruit of his suit at the end of said execution? As before stated, at least Hanley’s interest in said property is in custodia legis. Under the provisions of sec. 4477, Rev. Codes, real property or any interest in real property “may be attached on execution in like manner as upon writs of attachment,” and after the execution is levied, the real property upon which it is levied is in the custody of the law.

*149While inadequacy of price alone is not sufficient grounds for setting aside an execution sale, if the price is grossly inadequate the presumption of fraud arises, and the sale will be set aside. (2 Freeman on Executions, 2d ed., sec. 309.) Where a purchaser has, by mistake, given an unreasonable price for an estate, the court will, in a proper case, wholly rescind the contract. (Id., sec. 304.) Nothing but an inspection can determine the value of the property so that the judgment creditor can make an intelligent bid.

It is clear to me that a fair and just sale can be had of said interest under execution only after an examination of the claim. The law contemplates a fair and just sale under execution, and no such sale can be had without knowing something about the property to be sold and its market value. It is not the intention of the law under execution sales to require the property to be sold as was the proverbial pig which was put in a poke so that no one could examine it before the sale. The trial court that rendered said judgment still has the inherent power upon a proper showing to compel a fair and just sale of property under execution is,sued to enforce said judgment. In Lindley on Mines, sec. 873, the author, after referring to numerous statutes authorizing an inspection of mines in certain eases, states: “Independent of any state legislation as an aid to discovery in pending actions, the power to order an inspection of real property has long existed in the courts of equity, ’ ’ and quotes with approval from Thornburgh v. Savage M. Co., Fed. Cas. No. 13,986. Is not the importance of an inspection in the present case as great 'as the inspection of a mine in order to ascertain whether certain rights are being violated ? While I have no doubt that a court of equity has ample power under the facts of this case to order an inspection, I believe with a fair construction of sec. 4542, Rev. Codes, the court has ample authority under its provisions to make such an order as prayed for by the appellant, and if its provisions are not broad enough, a court of equity has ample power on proper showing to order an inspection of any real property about to be sold under execution. It is held by numerous. *150authorities that such power is not derived from the statute alone. In Platt v. Bright, 31 N. J. Eq. 81, referring to said right, the court stated: “It arises independently of it [the statute], from the necessities of the administration of justice, and is inherent in this court.”

It must not be overlooked in this case that this proceeding is against a cotenant who has no interest in the judgment against Hanley, and it should not be permitted to defeat the appellant from securing the results of his judgment against Hanley, thus preventing Hanley from realizing all that his one-eighth interest in said mining claim is fairly worth, to be applied on his debt due to appellant. The action of the court ought to be reversed and an order to inspect said mine granted.