34-49-101. Survey - notice - affidavit

34-49-101. Survey - notice - affidavit. (1) In all actions pending in any district court of this state, wherein the title or right to possession of any mining claims shall be in dispute, the court may, upon application of any of the parties to such action, enter an order for an underground as well as surface survey of such part of the property in dispute as may be necessary to a just determination of the question involved. Such order shall designate some competent surveyor not related to any of the parties to such action, or in any way interested in the result of the same, and, upon the application of the party adverse to such application, the court may also appoint some competent surveyor, to be selected by such adverse applicant, whose duty it is to attend upon such survey and observe the method of making the same, said second surveyor to be at the cost of the party asking therefor.

(2) It is also lawful in such order to specify the names of witnesses named by either party, not exceeding three on each side, to examine such property, who shall thereupon be allowed to enter into such property and examine the same. The court may also cause the removal of any rock, debris, or other obstacle in any of the drifts or shafts of said property, when such removal is shown to be necessary to a just determination of the question involved. No such order shall be made for survey and inspection except in open court or in chambers, upon notice of application for such order for at least six days, and not then except by agreement of the parties, or upon the affidavit of two or more persons, that such survey and inspection are necessary to the just determination of the action, which affidavits shall state the facts in such case, and wherein the necessity for survey exists, nor shall such order be made unless it appears that the party asking therefor had been refused the privilege of survey and inspection by the adverse party.