6-405. ORDER FOR SURVEY AND EXAMINATION. Any person having a bona fide claim to the possession, title of, or interest in, any real property or mining claim, including any ledges thereof, which is, or which he has good reason to believe is, in the possession of another, either by surface or underground holdings or workings, and it is necessary for the ascertainment, enforcement or protection of such rights or interests, that an examination or survey of such property be had, and the person so in the possession thereof fails or refuses for three (3) days after demand on him made in writing, to permit such examination or survey to be made, the party desiring the same may apply to the court or the judge thereof, whether he have an action concerning such property pending in such court or not, for an order for such examination and survey.

Such application must be made upon written petition or statement under oath, setting out a description of the property, interest of the party therein, that the premises are in the possession of a party, naming him, the reason why such survey or examination is asked, the demand made for same, and refusal thereof.

The court or judge must appoint a time and place for hearing, of which notice, with a copy of the petition, must be served upon the adverse party at least three (3) days before the hearing and one (1) additional day for each twenty-five (25) miles between the place of service of notice and the hearing, and such hearing must be had and the testimony must be produced in the same manner as provided by section 8-411 for hearings on injunctions.

If upon such hearing the court or judge is satisfied that either party is entitled to any relief or order for examination or survey of any property in the possession of the other, which has, by the papers in the proceedings been put in controversy, an order must be granted for such examination, survey and other privileges as the court or judge may deem just, and the order must specify as nearly as possible what the person in whose favor such order is granted may do.

Thereupon, such person may have free access, with such agents and assistants as may be allowed, to all parts of such property, with right to remove any loose rock, debris or other obstacle, when the same is necessary to the making of a full inspection or survey of such property, but no such removal must be made without the consent of the adverse party or the order of the court or judge permitting the same.

The court or judge may also, upon proper showing with a view of producing such evidence as may be needed to determine the rights of the parties, allow work to be done on such property, but any work so permitted must be allowed only after the same is particularly defined, and must not be allowed in such manner as to interfere with the workings of the adverse party, and then only when the court is satisfied the adverse party is acting in bad faith and is infringing or attempting so to do, upon the rights of the party asking to do such work, and when there is no other reasonable or convenient mode for the production of the evidence necessary to settle the rights of the parties.

The party so asking to do work upon the premises of, or in the possession of another, must give good and sufficient security for the payment of all damages he may do the adverse party by reason of such work, and the court or judge must at every stage of the proceedings have due regard for the rights of all parties in interest.

History:

[(6-405) Act Feb. 10, 1887; R.S., R.C., & C.L., sec. 4542; C.S., sec. 6965; I.C.A., sec. 9-405.]