(30 Mont. 189)

WOODY V. HINDS et al. (Supreme Court of Montana. April 4, 1904.)

MINES AND MINING-ADVERSE CLAIMS-SUITS -SUFFICIENCY OF PLEADINGS-AMENDMENT -UNCERTAINTY AND AMBIGUITY.

1. Rev. St. U. S. § 2326 [U. S. Comp. St. 1901, p. 14301, provides that an adverse claimant of mineral lands shall, within 30 days after filing his claim, commence proceedings in a competent court to determine the right of possession. Code Civ. Proc. § 1310, provides that actions may be brought to determine adverse claims in real property, and section 1311 provides that in actions under Rev. St. U. S. § 2326 [U. S. Comp. St. 1901, p. 1430], plaintiff shall recover costs if defendant does not reliuquish his claim within 20 days. Code Civ. Proc. 1322, provides that in actions to determine mining claims it is sufficient that the pleadings show that application for patent has been made and an adverse claim filed and allowed in the proper land office. Held, that a complaint under Rev. St. U. S. § 2326 [U. S. Comp. St. 1901, p. 1430], showing possession under claim of title in plaintiff, an application for a patent by defendant, the filing and allowance of an adverse claim in the land office, and that the action was commenced within 30 days after the allowance, is sufficient, whether the action be treated as one under Code Civ. Proc. § 1310 or section 1322. It is not necessary in either case that plaintiff particularly set forth the nature of defendant's claim, but that duty devolves on defendant.

2. Under Rev. St. U. S. § 2326 [U. S. Comp. St. 1901, p. 1430], providing that adverse claimants of mineral land shall, within 30 days after filing their claim, commence proceedings in a competent court to determine the right of possession, an action commenced within the 30 days proceeds to judgment as other actions, and the court, as in other actions, may permit amendments to the complaint so as to make it state a cause of action, even after the 30 days have expired.

3. An allegation in a complaint under Rev. St. U. S. § 2326 [U. S. Comp. St. 1901, p. 1430], providing that adverse claimants of mineral land shall, within 30 days after filing "a claim," sue to determine the right of possession, is not bad for uncertainty or ambiguity, when it states that a "protest" was also filed.

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by George H. Woody against Thomas R. Hinds and others. From a judgment for defendants, plaintiff appeals. Reversed. Miles Cavanaugh and Forbis & Mattison, for appellant. J. E. Healy, for respondents. 76 P.-1

BRANTLY, C. J. This action was brought, in pursuance of section 2326 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 1430], to determine an adverse claim to the Jennie M. quartz lode, situate in Silver Bow county. The adverse claim is asserted by defendants under a location covering the same ground and called the "Rival lode." The original complaint was held insufficient on general demurrer, but leave was granted to file an amended complaint. It is therein alleged that the plaintiff is the owner, in possession and entitled to the possession, of the Jennie M. lode, describing it; that defendants claim an estate therein, adverse to the plaintiff, by reason of the pretended ownership of the so-called "Rival lode claim," but that the defendants have no right, title, or interest therein. It is then further alleged that on October 2, 1901, the defendants filed, in the United States Land Office at Helena, their application for a patent to the Rival claim, and caused notice of their application to be published; that within 60 days thereafter the plaintiff filed a "protest and adverse claim" against the said application; that the protest and adverse claim was allowed; that thereafter, and within 30 days, this action was brought to have said adverse claim determined. To this amended complaint a demurrer was interposed, alleging (1) that it does not state facts sufficient to constitute a cause of action; (2) that the facts stated do not confer jurisdiction to determine any adverse claim of the plaintiff; and (3) that the pleading is uncertain, ambiguous, and unintelligible. The demurrer was sustained. Thereupon, the plaintiff having declined to plead further, judgment was entered for defendants. Plaintiff has appealed.

and

It is impossible to understand upon what theory the district court held this pleading insufficient. It appears therefrom that the plaintiff is in possession under claim of title. that the defendants had applied for a patent under the Rival location, that an adverse claim had been filed in the land office and allowed, and that the action was commenced within 30 days after such allowance. This is sufficient to sustain the action. Mattingly

v. Lewisohn, 8 Mont. 259, 19 Pac. 310; McKay v. McDougal, 19 Mont. 488, 48 Pac. 988; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439; Hopkins v. Butte Copper Co. (Mont.) 74 Pac. 1081. This is true, whether the action be regarded as one to quiet title under section 1310 of the Code of Civil Procedure -which in fact it is-or a special statutory proceeding under section 1322. It was suggested in Mares v. Dillon (Mont.) 75 Pac. 963, that the latter section possibly contemplates a special form of action for these cases; whether it does or not need not now be considered, for the reason that, if it does, the pleading is sufficient, because it contains more than would in that case be required. Upon either theory the plaintiff is not required to set forth with particularity the nature of defendants' claim. This duty devolves upon defendants under section 1310, as is clearly implied by section 1311. In an ordinary action under the former, if the defendant does not appear, or if he enters a disclaimer, he is not even adjudged to pay costs. If the action is brought, in pursuance of the statute of the United States, to determine who is entitled to the patent, the requirements of section 1322 apply. In that case, if the defendant does not appear, he must nevertheless be adjudged to pay costs, unless he file a relinquishment in the land office, or disclaim an interest, in writing, within 20 days after the adverse claim has been filed. In any event, the purpose of the proceeding is to have defendant's adverse claim determined, and the duty is cast upon him to make discovery of his claim, in order that the court may properly determine it. Castro v. Barry, 79 Cal. 443, 21 Pac. 946; People v. Center, 66 Cal. 557, 5 Pac. 263, 6 Pac. 481; Heeser v. Miller, 77 Cal. 192, 19 Pac. 375; Rough v. Simmons, 65 Cal. 227, 3 Pac. 804; Scorpion v. Marsano, 10 Nev. 380; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 392; Mont. Ore Pur. Co. v. Boston & Mont. C. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114.

It is said that the court had no jurisdiction of the action because it is apparent that the amended complaint was filed long after the expiration of the 30 days from and after the suspension of the proceedings in the land office; in other words, the court cannot proceed to judgment in such cases unless a complaint stating a cause of action has been filed within 30 days after the filing of the adverse claim. This contention cannot be sustained. If the action is brought in time, it proceeds to effective judgment as other actions, and the court has the same power to allow amendments to pleadings as in oth

er cases.

The complaint is not open to the objec tion stated in the last ground of demurrer. It is entirely clear from the pleading what the purpose of the action is, though it is alleged that a "protest" was filed, with the

statement of adverse claim, in the land office. Whether or not this was done is immaterial, and does not affect the cause of action stated. The judgment is reversed, and the cause is remanded for further proceedings. Reversed and remanded.

MILBURN and HOLLOWAY, JJ., concur.

(30 Mont. 181) FORRESTER et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. et al. (Supreme Court of Montana. March 31, 1904.)

RECEIVERS-EXPENSES-FEES-EXCESSIVE ALLOWANCES-DETERMINATION-APPEALS.

1. No motion lies for a new trial of issues involved in the matter of a claim for compensation and expenses of a receivership, and there can be no appeal from an order denying such a motion.

2. An appeal lies from a judgment allowing the compensation and expenses of a receiver.

3. A receiver cannot be allowed fees for counsel to a superintendent in charge of the corporation's property, or for other employés.

4. A defendant in a receivership should not have its property taken to pay expenses of a receiver unjustly and unlawfully kept in office as an officer of the court, where justice requires his discharge.

5. Where a receiver was only in actual possession of the corporation's property for 5 days, and was free to act as receiver not more than 15 days altogether, an allowance of $200,000 was excessive.

6. Acts of violence exhibited towards a receiver by the agents of the corporation do not justify an excessive allowance of fees to the receiver.

7. Where a receiver should have been discharged on a certain date, when defendant corporation offered, in writing, to do the very things that plaintiffs prayed the court to enforce, he was entitled to a reasonable compensation for services rendered prior to such date, and to be recompensed for proper and reasonable expenses incurred prior thereto, but was entitled to nothing for expenses or services rendered after that date, except, perhaps, a reasonable sum for services of a bookkeeper aiding in rendition of accounts to the court.

Holloway, J., dissenting.

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by James Forrester and others against the Boston & Montana Consolidated Copper & Silver Mining Company and others. From an order allowing the receiver his compensation and expenses, and from an order denying a motion for a new trial of the issues involved in the claim for such compensation, certain plaintiffs appeal. Reversed.

Forbis & Evans, for appellants. Pemberton Maury, J. E. Healy, R. B. Smith, Jno. J. McHalton, and Geo. F. Shelton, for appellees.

MILBURN, J. This is an appeal from an order of the district court (in the form of a judgment) allowing the receiver, Thomas R. Hinds, $200,000 for compensation for his services, and $31,116.30 for expenses as such re ceiver, and from an order denying a motion for a new trial of the issues involved in the

matter of the claim for such compensation and expenses. Two motions to dismiss these appeals have been filed-one by the plaintiffs and one by the respondent, Thomas R. Hinds. The appeal from the order denying the motion for a new trial is dismissed. There is no such appeal known, and no such motion lies. State ex rel. Heinze v. District Court, 72 Pac. 613, 28 Mont. 227.

The motions for dismissal of the appeal from the judgment fixing the compensation and expenses must be, and are, denied. Under the authority of the case just above cited, appeal lies from a judgment fixing the compensation of a receiver. The notice of appeal shows clearly that an appeal was taken from the judgment fixing the compensation, and that an appeal was taken from the order denying the motion for the new trial asked for. There is not anything to show that the bond on appeal was not sufficient and regular in form, and properly filed.

The history of this receivership would fill a volume of considerable size, and we shall not attempt to narrate it here. We merely refer for such history to Forrester v. Butte, etc., Copper & Silver Min. Co., 21 Mont. 544, 55 Pac. 229, 353; State ex rel. Boston & M. Consol. Copper & Silver Min. Co. v. Second Judicial District Court, 22 Mont. 220, 56 Pac. 219; Id., 22 Mont. 241, 56 Pac. 281; Id., 22 Mont. 376, 56 Pac. 687; Forrester v. Boston, etc., Consol. Copper & Silver Min. Co., 22 Mont. 430, 56 Pac. 868; Id., 23 Mont. 122, 58 Pac. 40; Id., 24 Mont. 148, 153, 60 Pac. 1088, 61 Pac. 309; and Id., 74 Pac. 1088.

The receiver was appointed December 15, 1898. On account of certain stays ordered by the Supreme Court in the numerous proceedings, he was free to act as such receiver not exceeding 15 days; that is to say, part of December 15, and part of December 16, 1898, and from the 1st of April to the 13th, inclusive, 1899. He was in actual possession of the property from April 8th to the 13th, inclusive, and no longer. On February 28th of the same year the defendants moved the district court to vacate the order appointing the receiver. As said in the opinion of this court in certain mandamus proceedings instituted to force the district court to take up, hear, and determine said motion (22 Mont., at page 443, 56 Pac. 868), the court's treatment of said motion, and its delay in hearing and determining the same, were unjustifiable, unfair, and oppressive. It is apparent that the court's delay in hearing and determining that motion was at the instance of the plaintiffs. The motion to vacate was taken up on April 1st, and continued from time to time, and never was determined by the district court until it was coerced by this court. The hearing was completed April 6th, and the motion denied April 10th. On April 5th the defendants, by written notice served upon the plaintiffs, offered to do and perform every thing that the plaintiffs endeavored to pro

cure to be done, and to allow judgment to be entered against themselves in favor of the plaintiffs for all costs. Defendants promptly appealed from the order of April 10th overruling their motion to vacate the appointment of the receiver, and on the 13th day of the same month this court, pending the appeal, ordered that all the property then in possession of the receiver be turned back to the defendants upon their executing a satisfactory bond. 22 Mont. 430, 56 Pac. 868. This was done. On June 8, 1900, the order of the district court denying the motion to vacate the order appointing the receiver was reversed (24 Mont. 153, 61 Pac. 309), for the reason that the defendants had remedied the evils complained of in the plaintiffs' complaint, and there was no longer any just reason why a receiver should be had. Theretofore, in one of the appeals, the appointment of the receiver in the first instance was held valid.

There were not any services rendered by anybody whomsoever in the matter of the receivership after April 13th; still the receiver claims compensation for a period of time extending from December 15, 1898, until the 18th day of July, 1900. He was in possession of the property not exceeding six days -from April 8th to 13th, inclusive. There is not in the record sufficient information in reference to his personal expenses to enable this court to determine either as to their necessity, or whether the items of expense were incurred before or after the time he properly should have been discharged on the motion of February 28th. Therefore it appears to us that the district court erred in allowing said expense account on the evidence adduced; and the other expenses, to wit, $14,000 for "assistant receiver" (that is, superintendent, James T. Stanford, in charge of the defendants' property at Great Falls); $1,000 for Austin Brown, metallurgist: $10,000 for W. Y. Pemberton, as counsel; $5,000 for J. B. McClernan, as assistant counsel; $500 for services of M. M. Leiter, as counsel to Supt. Stanford; and $500 for J. J. Harrington, as bookkeeper (excepting, perhaps, part of the expense incurred for bookkeeper)—all appear to have been incurred after the 5th day of April, 1900, excepting, perhaps, the items as to W. Y. Pemberton and J. B. McClernan, there being nothing definite in the record to show when they were employed or what services they rendered, and are not expenses which on any just principles should be paid from the property of the defendants. In no event can fees be allowed for counsel to the superintendent or other employés of a receiver.

It is not necessary to waste time or space in citing authorities to support the proposition that a defendant in a receivership pro ceeding should not have its property taken to pay the expenses of a receiver unlawfully and unjustly kept in office as an officer of the court, when justice requires his discharge. We merely refer to McAnrow v. Martin, 183

Ill. 467, 56 N. E. 168; Ogden City v. Bear Lake & R. W. & I. Co. (Utah) 55 Pac. 385; Willis v. Sharp (Sup.) 12 N. Y. Supp., at page 120; High on Receivers (2d Ed.) 796, and .cases cited. We add that the evidence shows that until the "fore part" of April, 1899, the receiver availed himself of the advice and counsel of the attorneys of the plaintiffs in the receivership proceedings.

Even if the court had been right in refusing to discharge the receiver, and he had been justly in the possession of the said property, the allowance of a fee of $200,000 would have been excessive, and abuse of discretion on the part of the court. The allowance of such a fee under the circumstances, and in the light of the history of this case as narrated and referred to above, was gross abuse of discretion. Confiscation of the property of the defendant should not follow the appointment of a receiver. For remarks and facts which are very pertinent, we refer to the opinion of Judge Brewer in Central Trust Co. v. Wabash, St. Louis & P. Ry. Co. (C. C.) 32 Fed. 187.

The receiver seems to rely somewhat upon certain acts of violence exhibited toward him by the defendants and their agents, as one important reason why he should receive extraordinary compensation. He testified that the defendants resisted him, threatening him with injury, and offered to assault him, in order to prevent his taking possession of the property. When this violence was exhibited is not clear, but it seems to be charged as happening after April 1, 1898. It may be that the defendants were in contempt of court in resisting the receiver, and it may be that the state of Montana should prosecute the agents of defendants for violation of the law against crime; but we do not understand that the property of the defendants should be taken to pay the receiver what the state might recover as a fine, or that Thomas R. Hinds, as a private citizen, might recover as damages in the proper suit.

meager evidence appearing in the record, it would be impossible for us to arrive at a just and satisfactory conclusion as to how much should be allowed the receiver for his expenses and compensation.

The judgment of the district court appealed from is reversed. Reversed.

BRANTLY, C. J., concurs.

HOLLOWAY, J. I dissent. I do not agree with the majority of the court in the disposition that is made of this case. The Second Extraordinary Session of the Eighth Legislative Assembly passed an act amending section 21 of the Code of Civil Procedure. Among other things, that section, as now amended, provides: "In equity cases, and in matters and proceedings of an equitable nature, the Supreme Court shall review all questions of fact arising upon the evidence presented in the record, ** and deter

mine the same, as well as questions of law, unless, for good cause, a new trial or the taking of further evidence in the court below be ordered." The manifest purpose of the Legislature in passing this act was to enable this court, upon appeals in equity cases, and in proceedings of an equitable character, to finally dispose of the cause, either by making the proper order itself, or by directing specifically what disposition should be made of the cause in the court below. This legislation is binding upon this court, and, in my opinion, should be followed in every instance where the record presents sufficient evidence to enable us to finally dispose of the litigation, thereby obviating a new trial and subsequent appeals. I am of the opinion that the evidence in this record is sufficient to enable this court to determine which items of compensation should be allowed, which should be disallowed, and the amount that should be allowed in those instances where the compensation fixed by the lower court is deemed excessive.

(30 Mont. 158)

MALONEY et al. v. KING et al. (Supreme Court of Montana. March 29, 1904.)

MINES-REMOVAL OF ORE-ACTION FOR DAMAGES-BURDEN OF PROOF-REBUTTAL-STAT

keeper aiding in rendition of accounts to the court.

If it be conceded that, under the present statute (Laws 2d Sp. Sess. 1903, p. 7), we have authority to review and determine this case de novo, we have to say that, owing to the

UTES-INSTRUCTIONS-DEFENSES.

1. The owner of a mining claim is entitled prima facie to everything beneath the surface of his claim, and under such title may prevent the intrusion of any one not showing a paramount right to enter within the planes of his boundaries.

2. Code Civ. Proc. § 1080, as amended by Sess.

whom the burden of the issues rests must first produce his evidence, and the adverse party must then produce his evidence, and that the parties will then be confined to rebutting evidence. In an action by the owners of a mining claim for removal of ore from within its boundaries, the issue was the location of the point at which a certain vein departed from a side line of defend

ants' location. Defendants, after plaintiffs showed a taking of ore from within their boundaries, introduced evidence that the vein departed at the point as claimed by them, whereupon plaintiffs in rebuttal introduced evidence that the vein departed at the place claimed by them as shown by the fact that the vein was exposed in the cellar of a certain building. Held, that it was error not to permit defendants to show in rebuttal that the vein located in the cellar was along a course or strike which would bring it out at a point other than claimed by plaintiffs.

3. In an action for damages sustained by plaintiffs, owing to defendants having removed ore from within the boundaries of plaintiffs' location, an instruction that if defendants had carried away ores belonging to plaintiffs, and in so doing they were mixed with other ores to which defendants were entitled, so that the amount of each could not be ascertained, plaintiffs were entitled to recover the value of all ores taken with which the ores belonging to plaintiffs were mixed, was erroneous.

4. In an action for damages sustained by plaintiffs owing to the removal of ores from their mining location, plaintiffs having shown prima facie the amount taken, it was then incumbent on defendants to show that they took a less quantity than plaintiffs' proof tended to show.

5. Code Civ. Proc. § 1081, provides that when, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, it may order them to be conducted there. Held, that the view is within the trial court's discretion.

6. Discretion of court in granting a view of premises will not be reviewed on appeal, in the absence of a clear showing of error.

Commissioners' Opinion. Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by James H. Maloney and others against Silas F. King and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

The Plymouth lode mining claim is owned by plaintiffs. When the action was commenced the Silver King lode mining claim was owned by defendants King, Murray, and Daly. Daly having died, the defendant Margaret Daly, as administratrix of his estate, was substituted for him. Defendants Sutton and Talbot were operating the Silver King under a lease. The Plymouth lies south of the Silver King. The plaintiffs by this action seek to recover of the defendants a judgment for $50,000, the value of ores alleged to have been willfully, knowingly, and unlawfully mined, extracted, and carried away by defendants, and to obtain an injunction restraining them from entering upon that part of the Plymouth which lies east of a vertical plane passing through a point on the north side line of the claim 405 feet distant from the northeast corner of the claim, the plane extending south, seven degrees west, across and vertically downward through the Plymouth claim, and from mining, carrying away, or converting to their own use the ores and minerals therein. The defendants deny that they have mined, extracted, taken out, or carried away from beneath that portion of the Plymouth claim described in the com

plaint any ores or minerals belonging to the plaintiffs, and aver that the defendants Daly, Murray, and King are the owners of the Silver King claim, and that the apex of the vein from which the defendants took the ore in question is wholly within the surface boundaries of the Silver King, extending in an easterly and westerly direction for the entire length of that portion of the Silver King which lies north of and adjacent to that portion of the Plymouth claimed by the plaintiffs, and say that the only drifts or levels run by the defendants which extend beneath the surface of the Plymouth vein have been run by defendants on said vein, and not otherwise; and they deny that plaintiffs are now or ever have been the owners of any part of said vein, or that it is or ever has been a part of the Plymouth. The vertical plane above described will be hereafter referred to as the "injunction line." Upon the trial the jury found for the plaintiffs, whereupon the court entered judgment and decree in their favor. From the judgment, and an order denying their motion for a new trial, defendants have appealed.

McBride & McBride, Wm. Scallon, and Jas. E. Murray, for appellants. C. P. Drennen and McHatton & Cotter, for respondents.

CALLAWAY, C. (after stating the facts). 1. Being the owners of the surface ground described in their complaint, the respondents were prima facie entitled to everything beneath the surface of their claim, and under such prima facie title could prevent the intrusion of any one not showing & paramount right to enter within the vertical planes of their boundaries. Maloney v. King, 25 Mont. 188, 64 Pac. 351; Id., 27 Mont. 428, 71 Pac. 469; Parrot Silver & Copper Company v. Heinze, 25 Mont. 139, 64 Pac. 326, 53 L. R. A. 491, 87 Am. St. Rep. 386; Boston & Montana Consolidated Copper & Silver Mining Company v. Montana Ore Purchasing Co., 188 U. S. 632, 23 Sup. Ct. 434, 47 L. Ed. 626.

Respondents' ownership of the surface ground of the Plymouth lode mining claim not being controverted, they, in order to make out a prima facie case, merely gave evidence tending to show that the appellants had willfully, knowingly, and unlawfully extracted and carried away large quantities of ore, of great value, from within the vertical planes of the boundaries of that portion of the Plymouth described in their complaint, and rested. Appellants then sought to justify the taking of the ore by showing that it was taken from a vein which has its apex in the Silver King ground. Much testimony was introduced to prove this contention. A model and numerous maps were produced as explanatory of appellants' theory. Appellants having rested, respondents sought to obviate the showing made by ap