Golden Reward Min. Co. v. Buxton Min. Co.

• Decision Date: 23 October 1899
• Docket Number: 1,173.
• Citation: 97 F. 413
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: GOLDEN REWARD MIN. CO. v. BUXTON MIN. CO.

97 F. 413

GOLDEN REWARD MIN. CO. v. BUXTON MIN. CO.

No. 1,173.

United States Court of Appeals, Eighth Circuit.

October 23, 1899

The Buxton Mining Company, an Iowa corporation, brought this action against the Golden Reward Mining Company, a corporation of South Dakota, to recover damages for a wrongful entry upon its property, situated in the state of South Dakota, known as the 'Bonanza Lode Mining Claim,' and for the removal therefrom and conversion to its own use of a large amount of gold and silver-bearing ore alleged to be of the value of $200,000. The Golden Reward Mining Company, the defendant below, and the plaintiff in error here (which will be referred to hereafter as the defendant), filed a general denial, which merely put in issue the commission of the alleged trespass, and did not seek to justify it. There was a lengthy trial before a court and a jury, lasting from February 9, 1898, until March 18, 1898 when the jury returned a verdict against the defendant below in the sum of $61,500, on which verdict a judgment was subsequently entered in favor of the plaintiff below. The proceedings at the trial are brought before us for review by a writ of error.

William L. McLaughlin and William R. Steele, for plaintiff in error.

Eben W Martin (Norman T. Mason, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

Preliminary to any discussion of the numerous errors that have been assigned, it will be advantageous to state certain facts which are practically undisputed. The parties to the suit are the owners of adjoining mining claims in the state of South Dakota. It will suffice to say generally concerning the location of the claims that the Bonanza claim, which belonged to the plaintiff below, and on which the trespass was committed, lay immediately to the west and south of two claims, the Silver Case and the Tilton, which belonged to the defendant company. Prior to August, 1891, the defendant had done a great amount of mining, not only on the Silver Case claim, which lay to the east of the Bonanza claim, but also on another claim which it owned, known as the 'Golden Reward Claim,' which latter lay immediately to the east of the Silver Case, and on certain other claims not necessary to be mentioned. It had extensive underground workings on both of the last-mentioned claims, consisting of tunnels stopes, and levels, whereas the Bonanza claim was at that time practically undeveloped, no work of importance having been done thereon or thereunder. Subsequent to July, 1891, the defendant company extended two of the drifts or tunnels on its own property across the boundary line, and underneath the Bonanza claim, and there excavated two stopes, known as 'Stope No. 2 West and Stope No. 3 West,' from which it extracted a large amount of mineral-bearing ore between the months of August, 1891, and August, 1892. The trespass so committed was not discovered by the plaintiff company until shortly prior to November 20, 1895, when the present action was brought; and the discovery at that time was due to the fact that the excavation of the aforesaid stopes ultimately caused the superimposed earth to settle, making depressions on the surface. As soon as the depressions became visible, the plaintiff company set on foot an investigation, which speedily developed the extent of the trespass. While the defendant company by its answer denied the trespass, yet on the trial such defense was practically abandoned, and the trial resolved itself into a consideration of three issues of fact: First, what was the quantity of the mineral taken from stopes Nos. 2 and 3 west, underneath the Bonanza claim? second, what was the value of the mineral so abstracted? and, third, was the trespass committed knowingly and willfully? A large amount of testimony was taken on these issues, very little of which has been preserved in the bill of exceptions. Errors to the number of 66 have been assigned by the defendant company, many of which are of little moment, and for that reason they will not be noticed in detail, although they have been duly considered. Counsel, in the elaborate briefs which have been filed, have themselves found it impossible to consider each of the assignments separately, but have grouped them and argued them by groups. We may well follow their example. Whether the judgment should be affirmed or reversed is a question which must depend for its answer on a few exceptions taken during the progress of the trial, that were principally discussed in the argument, which we will not proceed to consider, though not in the exact order adopted by counsel.

During the progress of the trial, counsel for the defendant company inquired of a witness how many men were employed by the defendant in its mines upon the Golden Reward and the Silver Case claims at the time when ore was being extracted from stopes Nos. 2 and 3 west, underneath the Bonanza claim. This question was objected to, whereupon counsel for the defendant made the following statement, in substance: That they proposed to show that during the period in question, from September 1, 1891, to August 1, 1892, the defendant kept an accurate account of the number of men employed in all of its mines located within the territory which it was then working, and that they were all worked together, as constituting one property; that the conditions under which mining was done in its own territory were the same as the conditions in stopes 2 and 3 west, and that the same number of men would break approximately the same amount of ore in the said stopes as in the stopes on its own claims; that during the period inquired about the total output from all the mines, including stopes 2 and 3 west, was from 25 to 40 tons per day; and that by dividing the whole output from all the mines by the total number of men employed, and thus ascertaining the average output per man, and by multiplying the average output per man by the number of men whom the jury might find were employed in stopes Nos. 2 and 3 west, while they were being worked, the jury could thus ascertain the number of tons of ore taken from said stopes Nos. 2 and 3 west, within the plaintiff's territory. This offer of proof was rejected, and an exception was saved. At another stage of the trial the defendant also offered in evidence a book kept by it, which was known as its milling or assay book, first having supplemented the offer by testimony to the following effect: That, during the period covered by the alleged trespass (that is to say, from about September 1, 1891, to about August 1, 1892) ores were received by the defendant by rail at its mill, which was some distance from the mines, in a mixed state, which came from different localities on the Golden Reward and Silver Case claims and from stopes Nos. 2 and 3 west, underneath the Bonanza claim; that these ores were first crushed and roasted, and by that means were prepared for the chlorination barrels; that the ore was sampled and assayed immediately before it was placed in the chlorination barrels, and that it was also sampled and assayed after it had undergone the process of chlorination, the result of the two assays showing what amount of the precious metals therein contained was saved by the process and what amount was lost; and that a faithful record of these assays was kept in its milling or assay book during the entire period aforesaid. The cross-examination of witnesses in connection with the offer of the assay book developed the fact, however, that the ores thus mixed and assayed came from all parts of the defendant's territory which it was then engaged in working, as well as from stopes Nos. 2 and 3 west, underneath the plaintiff's claim, that some of the ores thus assayed came from a locality three-fourths of a mile distant from the stopes Nos. 2 and 3 west, and that 1,000 feet intervened between those stopes and other localities from which ore was drawn which entered into the aforesaid assays. Besides, there was other evidence introduced which tended to show that while the trespass was in progress the defendant company failed to keep a daily record of the number of cars of ore taken from its mines, and the locality from whence it was derived, as it had done prior to the commission of the trespass, and that it had also filled up stope No. 3 west, and had closed the entrance thereto, and had blasted out the timbers after the stope was exhausted, which was an unusual proceeding among miners. The assay or milling book was rejected when the same was offered, and an exception was likewise saved. The two exceptions thus noted have been argued at considerable length in this court, and, as the merits thereof involve an application of the same general rules of evidence, it has been deemed most convenient to consider them together.

As a general rule, any evidence is admissible which has a reasonable tendency to establish a material fact in controversy, provided the evidence is not of a hearsay character or otherwise incompetent. Insurance Co. v Weide, 11 Wall. 438, 440. If testimony is relevant to an issue, it is generally admissible, and the courts will not ordinarily consider its weight, but will leave that question to be determined by the jury. This general rule, however, is subject to the important qualification that testimony which does have some tendency to establish a material fact may be rejected by a trial judge, and should be rejected, when its admission will have a tendency to divert the attention of the jury from the precise issues involved in the case, and protract the trial beyond reasonable limits. This limitation of the general rule requiring all relevant testimony to be admitted, to which ...