Stockbridge Iron Co. v. Cone Iron Works

Chapman, C. J.

The defendants’ counsel contends that the evidence did not as matter of law warrant the finding of the justice who heard the cause on the appeal from the master’s taxation of costs; and he refers not only to the order appointing the viewers, but to the bill itself, as sustaining his position, on the ground that the viewers were not authorized to order all the explorations that were made by their direction. But this position is not sustained by reference to the bill and order. The plaintiffs complain that the defendants dug a shaft on their own .and, near the line of the plaintiffs’ land, and thence excavated drifts extending underground into the "plaintiffs’ land, and took out the ore which they found there. They ask that these drifts may be viewed. The order directs not only that the drifts may be examined by pumping the water out of the shaft and going into it, and that the drifts may be examined which lead towards the plaintiffs’ land, and also those which are under it, but that they may be cleared so far as may be necessary in order to ascertain what iron ore or other mineral has been taken from the land of the plaintiffs and under the surface thereof, and that the viewers may do all acts that may be reasonably necessary to be done to effect the purposes of the decree. If the viewers found that it would facilitate and cheapen their explorations to excavate an entrance to one of the drifts which they had discovered by digging from the surface of the plaintiffs’ land, it would be proper to do so, within the terms of the order and the prayer of the bill.

The master’s report finds that the defendants took a very large quantity of iron ore (being 6640 tons) from the plaintiffs’ land by means of these underground passages; and though it was not done wilfully, yet they were guilty of gross negligence in not taking proper precautions to avoid digging or carrying away ore from the plaintiffs’ land. This result tends to show the importance of the view; and moreover it is to be presumed that the proceedings of these, officers of the court were proper, unless the contrary appears. The testimony of the viewer, at the hearing, that the viewers ordered the explorations without deciding that it was absolutely necessary that they should be made, is referred to by the defendants’ counsel, who contends that the expense of making the explorations should not be allowed because they were not necessary. But it need not appear that they were absolutely necessary. It is sufficient if they were reasonably necessary ; and it sufficiently appears that they were so.

It is contended that the power of the court in allowing costs depends on Gen. Sts. c. 156, § 16, and that this section does not authorize the allowance of these expenses. But 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.

It is contended that the court has no power to allow interest on the moneys expended under the order for the view. The mm thus expended was large, and must be advanced beforehand; and the case has been delayed a long time; and though it is never the practice to allow interest on fees taxed according to the fee bill, yet we think the court has power to include interest on money advanced as a necessary part of the expense of the view in a case like the present, and that it is equitable to make such allowance. Taxation of costs affirmed.