HUNT
J.
Action
to recover the value of ore taken from a vein beneath the
surface of that portion of the Wappello lode claim owned by
plaintiff (appellant). The Butte & Boston Mining company
plaintiff and appellant, owns the south and west portions of
the Wappello lode claim, while the Société Anonyme des Mines
de Lexington, respondent here, owns the northeast portion, as
indicated by the diagram accompanying this opinion. A.J.
Davis formerly owned the Wappello, and both plaintiff and
defendant derive title from him; the conveyance to defendant
of its portion having been prior to the conveyance of
plaintiff's portion to it. Defendant entered beneath
plaintiff's premises and extracted ores. Hence the
principle question involved was whether the vein from which
the defendant took the ores had its apex within the surface
boundaries of that portion of the Wappello lode claim owned
by the defendant, or had its apex within the surface
boundaries of that portion of the Wappello owned by the
plaintiff. Incidental to the determination of this issue was
the question of the amount of damages. The case was tried to
a jury. The evidence was conflicting, many experts for
plaintiff claiming that the apex of the vein from which the
ores were extracted was in plaintiff's ground, and that
it was wholly disconnected with any vein in defendant's
ground, while an equal number of expert witnesses called by
the defendant testified that, in their opinion, the apex of
the vein was in the defendant's ground. Elaborate
instructions were given to the jury, who found for the
plaintiff for $125,000 damages.
The
defendant moved for a new trial, based upon errors in the
instructions the court had given to the jury, and
insufficiency of the evidence to justify the verdict and
findings of the jury. The court granted the motion for a new
trial, and from the order granting such motion the plaintiff
appeals to this court.
To
illustrate the theory of the district judge, we give verbatim
those portions of his charge which upon review by motion for
a new trial, he held to incorrect statements of the law;
Instruction
9: "You will understand, however, that a fragment or
portion of a vein although it may be sufficiently identified
or recognized, will not in itself give its owner the right to
enter upon the ground of another and extract ore from other
portion of the same vein; for if the two portions of the
vein, although once together and forming the same vein, have
become separated, and the original connection has been so
broken or obliterated that such connection cannot any longer
be followed, then the owner of the portion having the apex
cannot enter through such disconnected portions into the land
of another."
Instruction
10: "Plaintiff and defendant both derive title to the
respective portions of the Wappello claim owned by them from
the same source. It is conceded that the ore, to recover pay
for which this suit is brought, was mined and extracted by
defendant from beneath the surface of that portion of the
said Wappello lode claim owned by the plaintiff. Defendant
contends that the apexes of two veins lie in that portion of
said Wappello lode claim owned by it, and that it has
followed the north one of the said veins on its southerly dip
into and under that portion of the said Wappello lode claim
owned by the plaintiff, and extracted and stoped said ore
from said vein, the top or apex of which is in
defendant's ground. The plaintiff contends that defendant
did not and cannot follow said vein continuously from
defendant's said ground into and beneath the surface of
plaintiff's ground. and to where the said ore was stoped
out, and that said ore was taken by the defendant form a vein
the top or apex of which lies within plaintiff's ground.
Now, to properly understand respective rights of plaintiff
and defendant, it is necessary to define what a vein or lode
is. And as to that it is enough to say that a vein or lode is
a body of mineral or mineral-bearing rock and the boundaries.
With either of these things well established. very slight
evidence may be accepted as to the existence of the other. A
body of mineral or mineral-bearing rock in the general mass
of the mountain, as far as it may continue unbroken and
without interruption, may be regarded as a lode, what ever
the boundaries may be. In the existence of such body, and to
the extent of it, boundaries are implied. On the other hand,
with well-defined boundaries, very slight evidence of ore
within such boundaries will prove the existence of a lode.
Such boundaries constitute a fissure, and if in such fissure
ore is found, although at considerable intervals and in small
quantities, it is called a 'lode' or 'vein'.
To maintain the issue on its part, the defendant must prove
that a lode, as here defined, extends from that portion of
the said Wappello ground owned by plaintiff. Reverting to the
above definition, if there is a continuous body of mineral or
mineral-bearing rock extending from defendant's ground
into and under the ground of plaintiff, it must be that there
are boundaries to such body, and that the lode exists, or if
there is a continuous cavity or opening between similar or
dissimilar rocks, in which ore in some quantity and value is
found, the lode exists. These propositions are correlative,
and not very different in meaning, except that the first
gives prominence to the mineral body, and the second to the
boundaries. Proof of either proposition goes far to establish
a lode, and it may be said that, without proof of one of
them, a lode cannot exists. These propositions are
correlative. and not very different in meaning, except that
the first gives prominence to the mineral body, and the
second to the boundaries. Proof of either proposition goes
far to establish a lode. and it may be said that, without
proof of one of them, a lode cannot exist. The proposition of
the defendant is that the evidence before you shows that such
a lode extends from the ground of the plaintiff, to the point
where said ore was stoped out. The plaintiff denies that
proposition, and contends that no such vein as is above
described, or any vein at all. has been or can be traced from
the point at which said ore was stoped out to any point
within the ground of the defendant. A continuous body of
mineral or mineral-bearing rock, extending through loose and
disjointed rock, is a lode, as fully and certainly as that
which is found in more regular formation; but if it is not
continuous, or is not found in a crevice or opening which is
itself continuous, it cannot be called by that name. In that
case it lacks the individuality and extension which are an
essential quality of a lode or vein. And if no traced in its
downward course and on its dip from an apex of a vein within
defendant's ground into and beneath the surface of the
ground owned by plaintiff, and to the point where said ore
was stoped out, then defendant had no right to enter into or
beneath the surface of plaintiff's ground; if it did so,
it was a trespasser, and your verdict should be for the
plaintiff."
Instruction
11: "It will be observed from the foregoing instructions
that the elements constituting a vein consist of boundaries
and the mineral within the vein.
Where
both boundaries and mineral are wanting, there can be no
vein; and, in determining the question of continuity, you may
apply the
same principle. If it becomes necessary, in order to connect
two separate and distinct portions of a vein, to pass for any
considerable distance through country rock, having none of
the elements of a vein, and through which intervening space
there are neither minerals or walls or seams to be followed,
then it may be concluded that the veins are permanently
separated, and one cannot be followed from the other through
the intervening space into the ground of another."
Instruction
13: "The fact that veins unite at one point only. If the
same remain separated at other portions of the vein, will not
give to one owner the right to enter upon the vein of
another, where such veins remain separate or apart. If,
therefore, you find from the evidence that the vein belonging
to the plaintiff united with the vein belonging to the
plaintiff united with the vein of the defendant at one point
only, and separates therefrom without uniting at other
places, then the most that defendant can claim is the ore
extracted from that part of the vein where so united, and on
the dip of such union, unless the defendant is shown to be
the owner of the apexes thereof, you must find for the
plaintiff."
Instruction
19: "The west end line of the tract of ground conveyed
to defendant by deeds in evidence is not parallel with the
west deeds in evidence is not parallel with the west end line
of the Wappello lode claim. Under such state of facts the
defendant will be confined in following any vein on its dip
which has its apex in its ground, to a plane drawn downward
vertically through the end line as described in its down
direction, and not to a plane drawn downward vertically
parallel to the original end line of the Wappello claim, at a
point where the vein departs on its strike from the ground
owned by defendant. Unless, therefore, you find the same
barred by the statute of limitations, as hereinafter
instructed, you must...
