Eureka Hill Mining Co. v. Bullion Beck & Champion Mining Co.

• Decision Date: 07 May 1907
• Docket Number: 1768
• Citation: 90 P. 157,32 Utah 236
• Parties: EUREKA HILL MINING CO. v. BULLION BECK & CHAMPION MINING CO
• Court: Utah Supreme Court

90 P. 157

32 Utah 236

EUREKA HILL MINING CO. v. BULLION BECK & CHAMPION MINING CO

No. 1768

Supreme Court of Utah

May 7, 1907

APPEAL from District Court, Juab County; Joshua Greenwood, Judge.

Action by the Eureka Hill Mining Company against the Bullion Beck &amp Champion Mining Company. Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Dickson Ellis, Ellis & Schoulder for appellant.

APPELLANT'S POINTS.

In order to entitle one to treble damages under the statute, it must be made to appear that the trespass was malicious willful, wanton or the result of such gross recklessness and negligence on the part of the defendant as would be equivalent to willfulness or wantonness. (Barnes v. Jones, 51 Cal. 303; Stewart v. Sexton, 108 Cal. 197; Cohn v. Neeves, 40 Wis. 393; McDonald v. Wood Co., 43 Am. St. 616; Railroad v. Scurr, 42 Am. Rep. 377; Dorsey v. Manlove, 14 Cal. 536; Yerian v. Linkletter, 80 Cal. 135; Pickett v. Crook, 20 Wis. 377.)

Unless the acts constituting the injury were directed by the corporation, or subsequently ratified by it, exemplary damages cannot be given." (Warner v. Southern Pacific Co., 113 Cal. 105; Cleghorn v. Railroad, 56 N.Y. 44; Railroad v. Garcian, 70 Tex. 207; Railroad v. Johnson, 75 Tex. 158; Page v. Yaol, 56 P. 636; Trabing v. Navigation & Improvement Co., 121 Cal. 137; Hagan v. Railroad, 3 R. I. 88; Railroad v. Telephone Co., 69 Tex. 278; Railroad v. Prentiss, 147 U.S. 101.)

If plaintiff call upon defendant to produce a book or document at the trial, and it is produced and submitted for inspection, the defendant is entitled to introduce it in evidence if plaintiff does not. (Ellison v. Cruser, 40 N.Y.L. 444; 2 Taylor on Evidence, section 1817, p. 1545; Broom Co. v. Lambson, 33 Am. Dec. 656-662; Electric Light Co. v. Electric Lighting Co., 45 F. 55; Heaffer v. Insurance Co., 101 Pa. St. 178; Bake v. Russ, 33 Me. 360; Wooten v. Nail, 18 Ga. 609; Blizzard v. Nosworthy, 50 Ga. 514; Clark v. Fletcher, 1 Allen 53; Long v. Drew, 114 Mass. 77; Wilkins v. Gillespie, 7 S. & R. 10; 2 Ency. of Evidence, 683.)

"A class of entries made by deceased third parties, which are received in evidence, are those made in the ordinary course of business, or duty, immediately connected with the transaction of the business, or duty, to which they relate, and contemporaneously, or nearly so, with such transaction, by a person having a peculiar knowledge of the facts entered and having no interest at the time to pervert or misstate them." (86 S.W. 38; State v. Brady, 36 L. R. An. 693; Curtis v. Bradley, 78 L. R. A. 163; Am. Surety Co. v. Pauly, 72 F. 478, 170 U.S. 133-159; 2 Ency. of Evidence, 672, and notes; Durby v. Salem, 30 Vt. 722; Leland v. Cameron, 31 N.Y. 115-121; Guy v. Mead, 22 N.Y. 462; Halsey v. Sinsebaugh, 15 N.Y. 485; Wernell v. Railroad, 16 Wend. 586; Insurance Co. v. Weide, 9 Wall. 677; Sill v. Reese, 47 Cal. 294-341; Heiskeel v. Rollins, 33 A. 263.)

When error has been committed by the lower court it is ground for reversal, unless it appears beyond question that it worked no injury. The case must be such that the appellant court is not called upon to decide upon the preponderance of the evidence that the verdict was right notwithstanding the error complained of. (Smith v. Shoemaker, 17 Wall. 630-639; Gilmer v. Higley, 110 U.S. 47; Moxia v. Oliver, 148 U.S. 664-673; Railroad v. O'Reilly, 158 U.S. 334; Railroad v. Halloway, 114 F. 458-465; U.S. v. Gentry, 119 F. 70-75.)

Sutherland, Van Cott, Allison, Riter & Harkness for respondent.

RESPONDENT'S POINTS.

The referee did not err in excluding from evidence the memoranda upon the pay rolls or the letters and memoranda appearing on the time books indicating the capacity in which and the places where the employees worked, nor did he err in excluding from the evidence the so-called "field books" of the defendant company. (Austin v. Thompson, 45 N.H. 113; Price v. Garland, 6 P. 472-477; Treadwell v. Lennig, 50 F. 872; Blight v. Ashley, F. Cases, No. 1541; Willings v. Consequa, F. Cases, No. 17767; Smith v. Coleman, F. Cases, No. 13029; 2 Phillips on Evidence, 537; Smith v. Rentz, 131 N.Y. 169; Taylor v. Railroad Co. [Iowa], 46 N.W. 64; Hoffman v. Railroad, 41 N.W. 301; Railroad v. Cunnington, 39 Ohio St. 327; Minton v. Lumber Co., 79 Wis. 646; Brickley v. Walker, 68 Wis. 563, 569; Railroad v. Tripp, 51 N.E. 833; Railroad v. Moras, 111 Ill.App. 531-4; Treat v. Barber, 7 Conn. 274, 278; Watts v. Shewell, 31 O. St. 331; Cairnes v. Hunt, 78 Ill.App. 420; Holt v. Pie, 14 A. 389.)

McCARTY, C. J. STRAUP and FRICK, JJ., concur.

OPINION

McCARTY, C. J.

This is an action of trespass brought by plaintiff against defendant to recover the value of certain ores claimed to have been unlawfully extracted by the defendant from the property of the plaintiff situate in Tintic mining district, Juab county, this state. The case was referred to C. S. Varian, a member of the bar of this court, as referee to take testimony and to make and file findings of fact and conclusions of law. As stated by the referee in his review of the case in a written opinion which he filed in connection with the findings of fact and conclusions of law: "It appears from the evidence that in the year 1888 there were suits pending between plaintiff and defendant and another company, the Bullion Beck & California Company, to whose right the defendant company has now succeeded, respecting the boundaries of the respective claims and the lode or lodes therein, and during the pendency of such suits a provisional line of separation was established by the court or agreed upon by the parties. In February, 1888, it appears that the defendant had worked across this line some eight or ten feet at the west end of the stope now designated in the evidence as the 'Trespass stope,' and extracted some ore; that a survey was made on February 24, 1888, by Mr. Brooks, defendant's engineer, for the purpose of establishing the line at that point and the location of the 'Day stope,' with relation thereto, this being a large stope in defendant's ground immediately adjoining the line on the west, and thereupon the place was bulkheaded. On July 2, 1888, an agreement in writing was made by and between all of the parties, whereby the provisional or court boundary line was affirmed and established . . . By this agreement the parties reciprocally released to each other all claims for damages on account of trespass theretofore committed. . . . Plaintiff contends that in the year 1896 the defendant returned to this trespass stope (which, as stated, is in plaintiff's ground) and entered it about the same place as in 1888, stopped out substantially all the ore and converted the same to its own use. . . . That plaintiff had no knowledge of the trespass until January, 1903, when its servants, in following ore in plaintiff's ground, broke into the stope at its easterly end and made the discovery." The referee, among other things, found: "(7) That in the year 1896 the defendant wrongfully and unlawfully, by means of underground openings, winzes, levels, and raises, at great depth beneath the surface, entered into and upon that part of the lode or lodes lying across easterly and southerly of the vertical plane of said boundary line aforesaid and owned by and in possession of the plaintiff, and secretly, intentionally, and fraudulently, by underground excavations and openings, mined, extracted, removed, and converted to its own use large quantities of mineral bearing ores from the property of the plaintiff, to wit, 148 tons of the value of $ 114 per ton, and of the aggregate value of $ 16,872. That said ore was mined and extracted from a certain stope called the 'Trespass stope.' . . . (10) That said trespass being intentional, willful and fraudulent, the plaintiff is entitled to have the value of the ores so taken and converted trebled, and the aggregate damages amount to $ 50,610." Judgment was rendered in favor of plaintiff and against defendant in accordance with the foregoing findings for the sum of $ 50,610. To reverse this judgment defendant has appealed to this court.

Appellant insists that the findings are not only unsupported by, but are contrary to, the evidence. The record contains about one-thousand pages of testimony, besides numerous time books and pay rolls of appellant, and also several maps showing the agreed boundary line hereinbefore referred to between the respective companies (plaintiff and defendant), as well as extensive underground workings at and in the vicinity of the stope wherein it is claimed the alleged trespass was committed. We deem it unnecessary to here review in detail this voluminous record, as a brief reference to the testimony of some of the principal witnesses is all that is necessary to support the findings assigned as error.

John Group, one of plaintiff's witnesses, testified, in substance, that in the year 1888 he worked for defendant company; that he worked across the boundary line mentioned and into the Trespass stope, taking out ore for a distance of seven or eight feet; that, when it was discovered he was working in and extracting ore from plaintiff's ground, he was ordered by defendant's foreman to stop working at that place and to bulkhead the entrance to the stope, which he did; that in 1889 he left defendant's employment and returned to work again in 1893; that in the year 1896 he and one Nelson, another employee of defendant company, removed by order of defendant's foreman, the bulkhead from the Trespass stope, which he (Group) had placed there in 1888; that when this bulkhead was removed Jared Roundy was foreman and John A. Kirby was superintendent of defendant company. Nelson was called as a witness by plaintiff and corroborated the testimony of Group in relation to the removal...