Grand Cent. Mining Co. v. Mammoth Mining Co.

• Decision Date: 03 September 1909
• Docket Number: 1957
• Citation: 36 Utah 364,104 P. 573
• Court: Utah Supreme Court
• Parties: GRAND CENTRAL MINING COMPANY v. MAMMOTH MINING COMPANY

104 P. 573

36 Utah 364

GRAND CENTRAL MINING COMPANY v. MAMMOTH MINING COMPANY

No. 1957

Supreme Court of Utah

September 3, 1909

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood Judge.

Action by the Grand Central Mining Company against the Mammoth Mining Company.

Judgment for plaintiff and dismissing defendant's counterclaim. Defendant appeals.

See 29 Utah 490, for former appeal.

AFFIRMED.

Everard Bierer for appellant.

APPELLANT'S POINTS.

Appellant insists that the so-called decree was an order merely. If it was a final judgment, we have now two final judgments in this case without the intervention of a new trial--an impossibility--a conclusion similar to the reductio ad absurdum of mathematics. If this court decides that it was in legal effect, but an order, it cannot escape the conclusion and holding that it was therefore not appealable and that its own decision or judgment of October 10, 1905, was without jurisdiction, and therefore was and is null and void. (Comp. Laws Utah, secs. 3183, 3323; 16 Cyc. 471; 23 Cyc. 672; Spelling on New Trial and Appellate Procedure, secs. 481, 646, 647; Elliott Appellate Procedure, secs. 77, 80, 81, 83, 85, 90, 91; North Point Con. Irr. Co. v. Utah & Salt Lake Canal Co., 14 Utah 155; Eastman v. Gurrey, 14 Utah 169; Watson v. Mayberry, 15 Utah 265; Bear River Co. v. Hanley, 15 Utah 506; Standard Steam Laundry v. Dole; Golden v. Jennings, 1 Utah 135; Benson v. Anderson, 9 Utah 154; 11 Cyc. 702; 2 Cyc. 536; Brown on Jurisdiction, secs. 3, 10, 26c; Rogers v. Cady, 104 Cal. 288; Davison v. Munsey, 27 Utah 87; Anderson v. Halthusel Merc. Co., 30 Utah 31; Myers v. East Bench Irr. Co., 31 Utah 89.)

Parol evidence is incompetent to substitute in a conveyance a call for another monument in the place of the call for the original monument there contained. If the monuments are lost or removed and their original locations are not established by competent proof, the courses and distances prevail, and control the description. (Resurrection Gold. Min. Co. v. Fortune G. M. Co., 129 F. 668; 17 Cyc. 567-570; 17 Cyc. 615, 616, 619.)

Dickson, Ellis, Ellis & Schulder for respondent.

RESPONDENT'S POINTS.

The judgment or decree of March 14, 1902, was final. It was determinative of the entire controversy between the parties. It settled every controverted issue raised by the pleadings. There was, when the decree was entered, nothing remaining to be done which called for the exercise of judicial discretion. (1 Black on Judgments, sec. 41; Spelling on New Trial and Appellate Procedure, pp. 32, 33; Elliott's Appellate Procedure, secs. 85, 90; Stahl v. Stahl, 220 Ill. 188; Jones v. Wilson, 54 Ala. 50; Lewis v. Campau, 14 Mich. 458; Barry v. Briggs, 22 Mich. 201; Klever v. Seawell, 65 F. 373; Striven v. North, 134 F. 366; Davey v. Davey, 52 Ark. 221; Forgay v. Conrad, 6 How. 200; Clutton v. Clutton, 106 Mich. 690; Dodsworth v. Hopple, 33 Ohio St. 16; Massie v. Stredford, 17 Ohio St. 596; Taylor v. Leith, 26 Ohio St. 436; Lehman v. Ford, 47 Ala. 733.)

But if it were conceded that the decree rendered by Judge Marioneaux, on the 14th day of March, 1902, was not a final decree, such as would authorize an appeal therefrom, still this court would be powerless to reverse the decision which it rendered on the former appeal, or to change or modify that decision in any particular whatever. The former decision is binding in all subsequent proceedings in the same cause, not only upon the parties and the trial court, but upon this court as well. (Sibbald v. United States, 12 Peters 488; Roberts v. Cooper, 20 How. [U.S.] 467; Hollowbush v. McConnell, 12 Ill. 203; 2 Spelling on New Trial and Appellate Practice, sec. 691; Noonan v. Bradley, 12 Wall. 121; Clark v. Lyon County, 8 Nev. 181; Fowler v. Bishop, 32 Conn. 199; Champaign County v. Reed, 106 Ill. 389; West v. Douglas, 145 Ill. 111; Green v. Springfield, 130 Ill. 515; Stacy v. Vermont Central Railroad Co., 32 Vt. 552; Lee v. Stahl, 13 Colo. 174; Stewart v. Preston, 80 Va. 623; Reclamation District No. 3 v. Goldman, 65 Cal. 635.)

Questions which were open to dispute and which were either expressly, or by necessary implication, decided on the first appeal of a cause (though not adverted to in the opinion), are not open to review on a second appeal. (McKinney v. State, 117 Ind. 26; Joslin v. Cowee, 56 N.Y. 626; Williams v. Rogers, 14 Bush. 776; Stewart & Palmer v. Heiskell's Trustee, 86 Va. 191; Camden v. Werninger, 7 W.Va. 528; Adams v. Fisher, 75 Tex. 657; Parker v. Pomeroy, 2 Wis. 84; Willis v. Smith, 72 Texas 565; Pittsburg C. & St. L. Railroad Co. v. Hickson, 110 Ind. 225; B. C. R. & N. Ry. Co. v. Dey, 89 Iowa 13; Tipton County v. Ind. P. & C. Ry. Co., 89 Ind. 101; Bradford v. Patterson, 1 A. K. Marsh, 346; Harlem v. Reed, 70 Ill. 479; City of Montgomery v. Gilmore et al., 33 Ala. 116; Central Railroad Co. v. Coggin, 73 Ga. 689; Leese v. Clark, 20 Cal. 388; Phelan v. San Francisco, 20 Cal. 40; Haynes v. Meeks, 20 Cal. 288; Davidson v. Dallas, 15 Cal. 75; Polack v. McGrath, 38 Cal. 666; Porter v. Doe, 10 Ark. 187; McLunden v. McGlaun, 60 Ga. 244; Ogden v. Larrabee, 70 Ill. 510; Lillie v. Trentam, 130 Ind. 16; Ryan v. Martin, 18 Wis. 703; Wilkes v. Davis, 23 Lawyers' Rep. Ann., p. 103 et seq.; Stacy v. Vermont Central Railroad Co., 32 Vt. 551; Drew v. Horton, 27 Wis. 300; Thompson et al. v. Abbott, 15 Md. 268, 284; Davenport v. Kleinschmidt, 8 Mont. 467; Clary v. Hoagland, 6 Cal. 685; Washington Bridge Co. v. Stewart, 3 How. 420; Hungerford v. Cushing et al., 8 Wis. 324; State of Wisconsin v. Waupaca County Bank, 20 Wis. 672; Cable v. United States Ins. Co., 111 F. 19; Williams v. Bruffy, 102 U.S. 248; Skillern's Executors v. May's Executors, 6 Cranch. 266; Gans v. Caldwell, 148 U.S. 228; Fowler v. Bishop, 32 Conn. 199.)

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

OPINION

STRAUP, C. J.

This action was brought by the Grand Central Mining Company, the plaintiff and respondent, against the Mammoth Mining Company, the defendant and appellant. In the first count of the complaint it was alleged that the plaintiff was the owner of a certain vein or lode beneath the surface limits of a lode claim owned by the plaintiff, and called the Silveropolis, and that the defendant had trespassed thereon, and had wrongfully extracted ores therefrom and converted them to its own use. In another count the plaintiff prayed for injunctive relief. The defendant denied the alleged trespass and the wrongful extraction and conversion of the ores, and by way of counterclaim alleged that it was the owner of a mining claim called the "First Northerly Extension of the Mammoth Mining Claim known as U.S. Lot No. 38," and that a vein on its apex and on its course crossed the southerly end line of lot 38, and thence continued northerly in such lot to a point 1100 feet north of the southerly end line of the lot; that the apex of such vein was very broad, and in its width extended easterly beyond lot 38, and overlapped certain other mining claims belonging to the defendant, and that it also extended beyond the west side line of such lot, and overlapped portions of other mining claims owned by the defendant called the "Jenkins," "Golden King," and "Bradley," and that a portion of the apex of such vein was found in such last-named claim; that lot 38 was the senior location, and that a portion of the apex of such vein was found therein extending northerly a distance of 1100 feet from the south end line of lot 38, and that, within the two parallel lines extended easterly and westerly, one through the southerly end line of lot 38, and the other through a point in such lot 1100 feet northerly therefrom, the vein and lode, upon its dip, passed underneath the surface limits of the Jenkins, the Golden King, and the Bradley, and thence, still westerly, passed beneath the surface limits of the Silveropolis and the Consort mining claims belonging to the plaintiff, and embraced all ore bodies found within the Silveropolis and the Consort claims south of the 1100-foot line.

Upon the allegations of the counterclaim the defendant prayed that the plaintiff's claim to the portion of the lode within and underneath the surface limits of both the Silveropolis and the Consort claims, and south of the 1100-foot line and north of the southerly end line of lot 38, extended westerly in their own direction, be adjudged invalid, and that the defendant's title and possession to the vein and lode, as in the counterclaim described, including the portion thereof alleged to be underneath the surface limits of the Silveropolis and the Consort claims, be quieted against the alleged adverse claim of the plaintiff, and prayed judgment for the value of the ores extracted and removed therefrom by the plaintiff, and for injunctive relief. The plaintiff denied the allegations of the counterclaim in respect of the defendant's ownership of the ores veins, and lodes within the boundaries of the Silveropolis and Consort claims, and alleged title thereto, and ownership thereof, in itself. The issues raised by the counterclaim were first tried to the court and an advisory jury. Upon special findings submitted to the jury they found that the apex of the vein, conceded by both parties to exist in the south end of lot 38, on its course or strike wholly departed from such lot, in a westerly direction, at a point 690 feet north of the southerly end line of lot 38, and south of the southerly end line of the Silveropolis extended easterly in its own direction to and across lot 38; that no part of the apex of any vein or lode, north of such point of departure, existed within the limits of lot 38, and that no part of the apex of any vein or lode existed within the limits of lot 38 north of the southerly end line of the...