Idaho State Statutes - Idaho Attorney Directory

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.

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