In Lewis v. Marsh, 8 Hare, 97, a lessor of a coal mine filed a bill against his lessee for an account, and to restrain him from working certain parts of the mine, the court (V. C. Wigram) based the order on the ground of necessity. He says: "I think the case is one in which there is a necessity that the party should be allowed what he asks, in order to prove his case. That is the meaning of necessity. A party can not get his rights without proving what his rights are, and it is inherent in the case that the plaintiff should have an opportunity of ascertaining that the defendants do not work more coal than they are entitled to. If there had been a shaft going through the plaintiff's land, there would not be the slightest doubt as to the plaintiff's right to go down and inspect the works." See also, Ennor v. Barwell, 1 De G., F. & J. 529.

If the granting of the order for inspection is a matter of course on a prima facie case, notwithstanding the sworn denial of the defendant, it would seem that it might, at the discretion of the court, be made without notice to the defendant. It is undoubtedly, however, the better practice to require notice, enjoining, in the meantime, so far as may be necessary to preserve the status quo.

The injunction to restrain the defendants from weakening the supports of their mine to such an extent as to endanger the caving in of the surface, and especially the flooding of the mines with the water of the swamp, was a proper exercise of the power of the court. The bill and the affidavits of verification show reasonable ground of apprehension lest, through the weakening of the supports, the surface should cave in and let the water of the swamp into the defendants' mine, whence it would flow into the mine of the complainants. Were it to do so, it is alleged that it would cause damage to the complainants to the amount of $50,000.

The defendants' mine was, when the bill was filed, worked out, and the lessees, the Allentown company, were getting ore by means of the reduction of the pillars which had been left for support, and they proposed to continue doing so to the end of their terin, which was some months distant. The complainants allege that the defendant company, under their lease, have mined to a great extent upon the complainants'

land. The Bakers, as lessors, have had the benefit of the trespass, if such there has been, in the royalty paid them by their lessees. If the defendants have indeed thus trespassed upon and opened the complainants' land, it is no stretch of authority to prohibit them from such a use of their own property as will inflict damage on that of the complainants. And even if the complainants' mine at the Baker line had been opened by themselves, it would have been the duty of the court to have protected them from this threatened injury under the circumstances. The maxim, sic utere tuo ut alienum non lædas, would have furnished sufficient ground for such relief. The defendants have, on the case made by the complainants, opened and worked the mine on the land of the latter in connection with the mine on their own property. If the latter is flooded, the former must be; and the court will not, in such a case, hesitate to restrain the trespasser from an act which will inflict such an injury on the property on which he has trespassed. The affidavits on the part of the defendants do not overthrow the case made by the complainants for the injunction.

The motion to dissolve must be denied, with costs. Nor can the motion to dismiss the bills prevail. It is based on the ground that the complainants have an adequate remedy at law. The original and supplemental bills are both injunction bills. The latter seeks no other relief. The former prays an account, indeed, but it is in fact filed for the purpose of obtaining an inspection and discovery. As to all other relief, the complainants subunit themselves to the direction of the

court.

Ex PARTE DEIDESHEIMER.

(14 Nevada, 311. Supreme Court, 1879.)

Superintendent of mine refusing admission to stockholder. By certain acts of the legislature of Nevada, Stat. 1877, 80, Stat. 1879, 57, to protect the rights of stockholders in the mines of that State, it is made

the duty of the superintendent of a mine to keep posted in some conspicuous place at or near the mine, the day of the week on which authorized stockholders may be admitted; and a failure to comply with any of the conditions mentioned in the act is declared to be a misdeHeld, that the statute does not command the superintendent to admit stockholders, nor is he in terms forbidden to refuse admission, and such refusal can not by implication be construed into a violation of the statute.

meanor.

Strict construction of penal statutes. Penal laws generally prescribe what shall or shall not be done, and then declare the consequences of a violation of either requirement. They should be plainly written, so that every person may know with certainty what acts or omissions constitute the crime.

Habeas Corpus. The facts appear in the opinion.

B. C. WHITMAN and C. J. HILLYER, for petitioner.

STONE & HILES, SEELEY & WOODBURN, and M. A. MURPHY, Attorney-General, for the State.

By the Court, Leonard, J.

The petitioner, Philipp Deidesheimer, is brought before me in chambers on habeas corpus, with a return showing he was arrested and is detained under a warrant of arrest issued by Thomas Moses, justice of the peace of Township No. 1, Storey county, by James Jewell, constable of said township. There is no dispute as to the facts, which are as follows:

On the twenty-eighth day of July, 1879, the petitioner was the duly qualified and acting superintendent of the Hale and Norcross Mining Company, a foreign corporation incorporated for the purpose of working upon and mining in the Comstock lode, in Storey county, and on that day A. B. Thompson, who, as owner and agent, was possessed of one fifth of one per cent. of the original capital stock of said corporation, applied to said justice, under and in accordance with the provisions of section 1 of the statute hereafter noticed, found on page 57, statutes of 1879, for an order to examine the shafts, adits and hoisting works of the mine of said corporation. Thereupon the justice delivered to Thompson an order directed to petitioner as superintendent, commanding him " to admit Thomp

son into said mine and permit him to examine fully all parts of the shafts, adits, borings, drifts, stopes, winzes, hoisting apparatus and every and all properties and appurtenances belonging to said mining company." Thereafter, on said dayThompson presented the order to petitioner at the mine of the company, and demanded to be admitted. Petitioner then and there refused to comply with the order, or any part thereof. At the time of the application and refusal just mentioned, there was posted in a conspicuous place at the mine, a notice, of which the following is a copy:

66

VIRGINIA, NEVADA-NOTICE!

In compliance with the provisions of the act of the legislature of the State of Nevada, touching the examination of mines, etc., Monday is named as the day of the week in which authorized stockholders may be admitted under the provisions of said act.

"PHILIPP DEIDESHEIMER, Sup't."

It is admitted that petitioner complied with the law in relation to posting notice.

A complaint upon oath was thereupon laid before the justice, charging petitioner with the crime of refusing him, the said Thompson, admittance to the underground works and mine of the Hale and Norcross Mining Company, upon the Comstock lode, in Storey county, Nevada, contrary to the provisions of an act of the legislature of the State of Nevada, entitled "An act to amend an act, entitled 'An act to protect the rights of owners of stock shares and other interests in the mineral and metal yielding mines of this State.' Approved February 21, 1877." A warrant of arrest was issued and placed in the hands of the constable, who arrested petitioner, and he is now detained under said writ. The warrant is conceded to be in due form; but it is alleged in the petition, and claimed by counsel for petitioner, that such warrant was and is without authority of law.

It is said by counsel for the State, that if petitioner is discharged, the order therefor must be based upon some one or more of the grounds set out in section 20 of the Habeas Corpus Act (Stat. 1862, p. 100); that he must bring his case within either or both of subdivisions fourth and sixth of such section, which provide that the petitioner may be discharged. "Fourth-When the process, though proper in

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form, has been issued in a case not allowed by law." * * "Sixth-Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law."

As I view the case, it may be decided by asking and answering the question submitted by counsel for the State as the main one in controversy, to wit: "Was this warrant issued in a case allowed by law, or is the process authorized by any provision of law?"

The original statute, entitled "An act to protect the rights of owners of stock shares and other interests in the mineral and metal-yielding mines of this State," was passed and ap proved in 1877. (Stat. 1877, p. 80.)

In 1879, section 1 of the statute just referred to was amended, but section 5 was not amended or re-enacted.

It is urged by counsel for petitioner, that section 5 of the statute of 1877 only attaches to a violation of the provisions or conditions of section 1 of that act, and that it does not attach or apply to a violation of the provisions or conditions of section 1, as amended in 1879. In my opinion section 1 as amended, and section 5 in the original act, must be construed together, as though the former had been incorporated in the prior act at the time of its adoption: Holbrook v. Nichol, 36 Ill. 161; McKibben v. Lester, 9 Ohio St. 627; Sedgwick on the Construction Stat. Law, 68.

For the purposes of this case, section 1 of the statute of 1879, and section 5 of the statute of 1877, may be epitomized as follows:

* *

"Section 1. Any person being the bona fide owner of one fifth of one per cent. of the original capital stock of any company incorporated for the purpose of working upon and mining in any lode * of precious or useful metals in this State, and any number of persons being the bona fide owners, in the aggregate, of such amount of stock, at the time application for a permit to examine any such mine shall be made, such owner or owners, upon a written order from the county clerk or justice of the peace, * * shall be entitled to the privilege of fully examining all of the shafts, adits, borings. drifts, stopes, hoisting apparatus, and every and all properties and appurtenances belonging to such mining company; pro

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