Albion Consolidated Min. Co. v. Richmond Min. Co.

• Decision Date: 09 November 1885
• Citation: 8 P. 480,19 Nev. 225
• Parties: ALBION CONSOLIDATED MIN. CO. v. RICHMOND MIN. Co.
• Court: Nevada Supreme Court

8 P. 480

19 Nev. 225

ALBION CONSOLIDATED MIN. CO. v. RICHMOND MIN. Co.

Supreme Court of Nevada

November 9, 1885

Appeal from an order of the Sixth judicial district court, Eureka county, granting plaintiff a new trial. The opinion fully states the facts.

Wren & Cheney, for appellant.

Baker & Wines and Stewart & Herrin, for respondent.

HAWLEY C.J.

On the twenty-first day of October, 1873, E. H. Rose and others commenced an action in the district court of Eureka county against the Richmond Company, (appellant herein,) to determine the right of possession to certain mining ground. A trial of that case in 1881 in the district court resulted in a judgment for the Richmond Company, from which Rose took an appeal to this court. The real controversy in that action depended upon the question of the validity of the Uncle Sam location, owned by Rose and others, and of the St. George and Victoria locations, and patents therefor from the United States, owned by the Richmond Company. This court declared the St. George and Victoria patents to be "absolutely null and void," and directed the district court to render a proper judgment in favor of Rose and others for the mining ground westerly of the line "A C," as designated upon the diagram in evidence in that case. Rose v. Richmond Min. Co. of Nevada, 17 Nev. 25. An appeal was taken from this decision to the supreme court of the United States, and that court, on the fourth of May, 1885, affirmed the decision of this court. Richmond Min. Co. v. Rose, 114 U.S. 576; S. C. 5 S.Ct. 1055.

The present action was brought to recover damages for the value of ore alleged to have been taken by the Richmond Company from the mining ground west of the line A C. The complaint alleges that 9,208 tons of ore were extracted and removed by the Richmond Company, of the value of $65 per ton, amounting to the sum of $598,520. It is further averred that by the working of the mine plaintiff was damaged in the sum of $10,000, making a total of $608,520. The jury before whom this cause was tried found a verdict in favor of plaintiff for $13,250. The plaintiff, being dissatisfied with this verdict, moved the district court for a new trial, which was granted upon two grounds, viz.: "(1) Insufficiency of evidence to justify the verdict. (2) Irregularity of the defendant, by which plaintiff was prevented from having a fair trial." This appeal is taken by defendant from the order of the district court granting a new trial.

1. The question whether there was any irregularity upon the part of appellant was, upon motion of appellant, eliminated from the case. It was presented upon affidavits which were not indorsed by the judge or clerk "at the time as having been read or referred to on the hearing" of the motion for new trial, (St. 1869, 227, § 197,) and upon the authority of Dean v. Pritchard, 9 Nev. 232 the affidavits were stricken from the statement on appeal.

2. Appellant contends that the question whether the court erred in granting a new trial upon the ground of insufficiency of the evidence to sustain the verdict cannot be considered because the statement, notwithstanding the recital therein that "the above and foregoing testimony was all the evidence offered and received in said action," affirmatively shows that it does not contain all the evidence. This contention is based upon the fact that the statement shows that a glass model of the mining ground was used at the trial in the district court to illustrate the testimony of the witnesses, and that certain maps and diagrams were referred to by the witnesses, which are not made a part of the statement on appeal. It is argued that without the model, maps, and diagrams, a portion of the testimony will be unintelligible to this court. It does not appear from the statement that the model, maps, or diagrams, or either of them, were offered in evidence, hence they were properly excluded from the record on appeal. Upon the trial of important mining cases it is quite frequently the custom of litigants to exhibit a model of the mine to be used in the court-room, instead of asking for an order to have the jury take a "view of the premises;" the models being constructed in such a manner as to show the various levels, drifts, tunnels, excavations, ore bodies, and such other matters as may be in controversy, and to enable the witnesses to illustrate their testimony by a reference thereto. Before these models came in vogue it was, and if a model is not used it is still, occasionally the practice to allow the jury to view the premises for the purpose of enabling them the better to comprehend the testimony of the witnesses; but the courts have never held that such a view was a part of the evidence in the case which must be included in the statement on appeal. It is allowed for the purpose of enabling "the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case." Close v. Samm, 27 Iowa, 508; Wright v. Carpenter, 49 Cal. 609. If the model is intended to establish any independent fact, and is introduced in evidence and used in the court below for that purpose, provision should be made to have it brought before the appellate court. In the present case the model was not intended to establish any fact, and was not used for any such purpose. If the maps and diagrams had been offered in evidence, they should have been embodied in the statement on appeal; but the fact is that they, like the model, were only used for the purpose of illustrating the testimony of the witnesses, and as they were not intended to establish any fact in the case it was unnecessary to offer them in evidence. In People v. Cochran the court said:

"A diagram is not a public nor private writing, nor is it made by law primary or secondary or prima facie evidence of any fact or object represented by it. When used in the trial of a case it is not used as evidence; it does not prove nor tend to prove, in the sense of evidence, any fact; it is simply a figure drawn to suggest to the minds of the jurors the relation between objects about which a witness is testifying, and may be drawn on paper or on a stationary blackboard, which cannot be removed. The very construction of the figure itself is defined by the testimony of the witness, and as illustratory of his testimony; it partakes of it in the same way that the clearness of the expression of the witness partakes of his evidence." 61 Cal. 552.

The statement recites the fact that "the defendant offered in evidence, for the purpose of showing its good faith in its entry and removal of the ore in controversy, patents from the United States to the Victoria and St. George mining claims, which patents were issued by the government of the United States to the defendant before the ore in controversy was taken out, and were upon the same ledge and lode as the Uncle Sam claim, and covered the ground from which the ore in controversy was taken;" that the "plaintiff introduced in evidence notices of location of Uncle Sam, Albion, Nos. 1, 2, 3, and Albion Consolidated, and introduced mesne conveyances to show it was vested with the title of the original locators of said mining claims." The plaintiff also offered in evidence the judgment roll in Rose v. Richmond Min. Co. of Nevada. This judgment roll does not contain the original judgment of the district court, which was reversed by this court, upon appeal.

Appellant argues that because the patents, the notices of location and mesne conveyances, and the reversed judgment were not set out in full, the statement does not contain all the evidence. This position is purely technical and without merit. The omissions complained of are wholly immaterial. It was unnecessary to incumber the statement by copying the language of the patents, even if they had been offered to prove title, unless there was an objection made to their being admitted in evidence, which required an inspection of their contents. No objection was made to the notices of location or mesne conveyances. The substance of the documents, as recited in the statement, is all that was necessary to be inserted in the record on appeal. "Instead of copying into a statement for a new trial, or on an appeal, deeds and transcripts of records, when no point is made on the construction of the language, a brief statement of the instrument answers every purpose." Knowles v. Inches, 12 Cal. 214. The judgment of the district court, which was omitted from the judgment roll, had been reversed by this court, and was without force or effect, and if had been included would not have added anything of value to the statement.

3. Appellant argues that the evidence is insufficient to justify any verdict in favor of respondent in this: that the statement fails to show any title in respondent to the mining ground at the time of the alleged trespass. This position cannot be maintained upon any sensible view of the evidence contained in the statement. The question of title was in issue under the averments in the complaint and answer; but when the cause was tried there was no controversy as to the ownership of the ground. The question had been settled by the decision of this court in Rose v. Richmond Min. Co. True, the decision of the supreme court of the United States had not been rendered at the time of the trial of this case. The pendency of that appeal might have been sufficient cause for a continuance of this case but until that decision was rendered it was certainly the duty of the district court to follow the decision of this court. The St. George and Victoria patents...