Hickey v. Anaconda Copper Min. Co.

• Decision Date: 24 July 1905
• Citation: 81 P. 806,33 Mont. 46
• Parties: HICKEY et al. v. ANACONDA COPPER MINING CO. et al.
• Court: Montana Supreme Court

81 P. 806

33 Mont. 46

HICKEY et al. v. ANACONDA COPPER MINING CO. et al.

Supreme Court of Montana

July 24, 1905

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by Edward Hickey and others against the Anaconda Copper Mining Company and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

W. W Dixon, A. J. Shores, C. S. Thomas, C. F. Kelly, Forbis & Evans, and D. Gay Stivers, for appellants.

John J McHatton and Jas. M. Denny, for respondents.

HOLLOWAY J.

The plaintiffs in this action assert their ownership in, and right of possession to, an undivided 31/36 interest in the Nipper lode mining claim. They allege that there is in said claim a vein bearing copper and other minerals, which vein extends lengthwise of said claim, substantially parallel with the side lines and through the end lines of said claim, which end lines are parallel; that said vein so far departs from a perpendicular in its descent into the earth that it extends beyond the south side line of the Nipper claim and into the Oden claim, owned by the defendant Washoe Company, and also into the Anaconda and Neversweat claims, owned by the defendant Anaconda Company; and that these defendants have entered upon and have mined and extracted ores from said Nipper vein. The prayer of the complaint is that the defendants be required to set forth their respective claims that the title of plaintiffs to the ores in said vein be quieted, and for an injunction pendente lite, and that upon final determination a decree be entered, among other things, enjoining the defendants from asserting any interest in said vein or in the Nipper claim. The answer of defendant Washoe Company admits many of the allegations of the complaint, and alleges that the vein in the Nipper claim, called by the plaintiffs the Nipper vein, extends in a northwesterly and southeasterly direction across said Nipper claim, intersecting its side lines. It avers its ownership to the Oden claim, and that it is entitled to the possession of all the veins and ore deposits lying within the vertical boundaries of the said Oden claim. The answer of the defendant Anaconda Company asserts its ownership to the Anaconda and Neversweat claims; admits many of the allegations of the complaint, but denies any knowledge or information sufficient to form a belief as to whether or not there is within the Nipper claim any vein extending lengthwise of said claim, or intersecting either of its end lines; and denies that the plaintiffs are the owners of or entitled to any mineral in any vein, lead, or lode within the vertical planes or boundaries of either the Anaconda or Neversweat claims. The affirmative allegations of these answers are put in issue by replications. Defendant Washoe Company asked leave of court to make an amendment to its answer by adding thereto a counterclaim in the nature of a complaint in ejectment. This application was denied. Defendants also moved the court for a trial by jury, but this motion was overruled. Other proceedings were taken, which it is not necessary now to consider. The cause was tried to the court without a jury, and findings of fact and conclusions of law were made, and a decree entered in favor of the plaintiffs, from which decree and an order denying their motion for a new trial the defendants appealed.

1. Right of trial by jury: This case is not distinguishable in its character from the case of Montana Ore Pur. Co. v. Boston & Montana Con. C. & S. M. Co., 27 Mont. 288, 70 P. 1114, s. c. 27 Mont. 536, 71 P. 1005, known as the "Pennsylvania Case," and the decision in that case is decisive of this question, adversely to the contention of the appellants. We see no reason to change our views there in expressed, but, on the contrary, particularly reaffirm the doctrine that in cases of this character the parties are not entitled, as a matter of right, to a trial by jury.

2. The power of this court to consider the evidence: It is contended by respondents that this court may not review the evidence to determine whether or not it supports the findings and decree, for the reasons (1) that the order of the court denying the motion for a new trial is not specified as error in appellants' brief; and (2) that the record does not contain all the evidence. Whatever may be the rule in other jurisdictions, where the specifications of error relied upon are required to be contained in the petition in error, the rule that the order of the court denying the motion for a new trial must be assigned as error does not prevail in this jurisdiction. Our statute (section 1171, Code Civ. Proc.) specifies the grounds upon which a motion for a new trial may be made. Of course, the statement which is presented to the lower court could not assign as error a ruling of that court not then made, and it could only be presented to this court by way of an assignment in the appellant's brief. But there is no reason whatever for this in this state, where an appeal lies directly from the order of the court denying a motion for a new trial. If the defendant in the court below has interposed a general demurrer to the complaint, and has stood upon his demurrer and suffered judgment to go against him, on appeal to this court an assignment that the court erred in overruling his demurrer will be considered by this court, and, if found to be well taken, the judgment will be set aside. Likewise, if it be found that the evidence does not support the decision, or if in the course of the trial the court has committed errors prejudicial to the appellant, and those errors have been properly saved and presented to this court, they will be considered, and the order of the lower court set aside, and a new trial directed. The judge of the district court certifies that the record contains all the evidence introduced upon the trial of this cause. But respondents contend that, notwithstanding this recital, certain ore samples and certain maps or plats used on the trial of this cause are not before this court on this review. In the first place, the statute does not contemplate that ore samples shall be brought to this court for examination. They may be brought here as original exhibits under the rules of this court, but there is no requirement that they shall be. Furthermore, the statute (section 1173, Code Civ. Proc.) does not contemplate that the record shall contain all the evidence which may have been introduced in the court below. On the contrary, it provides: "It is the duty of the judge or referee in settling the statement to strike out of it all redundant and useless matter, and to make the statement truly represent the case, notwithstanding the assent of the parties to such redundant and useless matter, or to any inaccurate statement." At least one of the exhibits which respondents contend is not before the court is in fact found in the record before us. In the absence of any showing that the other exhibits omitted are material to a consideration of this appeal, the certificate of the presiding judge will be accepted as importing verity, and the statement considered as containing all of the matter necessary to make it truly represent the case; and, when this court has heretofore said that the record must show that it embraces all the evidence, the phrase "all the evidence" was used in the sense meant by the statute, viz., all the evidence necessary to make the statement truly represent the case.

3. Cross-examination of the witness Stewart: As one of their witnesses, plaintiffs called John M. Stewart, one of the original locators of the Nipper claim, and upon his direct examination asked him to identify the Nipper declaratory statement and the plat of that claim used in the Land Department upon application for patent. He was asked if he had anything to do with the making of the location of the Nipper claim, when it was located, whether there was any discovery of a vein made upon the ground embraced in the surface lines of that claim, and what the locators did after discovery with reference to the possession of the claim. In answer to these questions the witness testified that he was one of the original locators; that the claim was located on the 16th day of October, 1875; that they did discover a vein upon the ground embraced within the surface lines of this claim; that they found there a wall and rock in place, sunk a discovery shaft, and traced the vein east and west; that after this they worked on the claim and represented it from year to year until they secured patent. Upon cross-examination he was asked if the locators did not sink another shaft on the claim northwest from the discovery shaft prior to their application for patent. He answered "Yes," and stated that it was sunk in 1876 or 1877. He was then asked whether or not this second shaft was sunk upon the discovery vein. This question was objected to on the ground that it was not cross-examination, and the objection sustained. Thereupon defendants offered to prove by the witness that the shaft sunk northwest from the discovery shaft, and shown upon the plat of the ground used in making application for patent, was in fact sunk upon the vein in its northwesterly course from the discovery shaft; that this was done as a part of the assessment work prior to application for patent, and that the true course and direction or strike of the vein is represented by a line drawn from the discovery shaft to this second shaft, and continued in the same direction both northwest and southeast; and that this witness had testified that the course of the vein was in that direction upon a former hearing in the same court. This offer was likewise rejected, and these rulings of the court are counted errors by appellants here. So much of the plat with...