Ill. Silver Mining & Milling Co. v. Raff

• Decision Date: 02 October 1893
• Citation: 7 N.M. 336,34 P. 544
• Court: New Mexico Supreme Court
• Parties: ILLINOIS SILVER MINING & MILLING CO. et al.v.RAFF et al.

7 N.M. 336

34 P. 544

ILLINOIS SILVER MINING & MILLING CO. et al.

v.RAFF et al.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1893.

Error to district court, Grant county; J. R. McFie, Judge.

Action of ejectment by Daniel G. Raff and others against the Illinois Silver Mining & Milling Company and another to recover possession of certain mining property. There was a judgment entered on the verdict of a jury in favor of plaintiffs, and defendants bring error. Affirmed.

In an action of ejectment by mineowners against the owner of an adjoining mine, where a nonexpert witness testified there was no foot wall, it was improper to ask him, “If there is a foot wall, then there is a vein?” the question being a hypothetical one, demanding an answer to a supposition, the condition to sustain which was denied by the witness.

Neill B. Field, for plaintiffs in error.

Warren, Fergusson & Bruner, for defendants in error.

FALL, J.

This cause, coming here from the third district, involves, as the main issue, the old vexed “apex” question, which has been the subject of litigation in the courts of every mining state in the Union, and which, more than once, has been considered by the supreme court of the United States. The law as to following a vein of metal outside the side lines of a claim, the apex of the vein being within the side lines, is well established; the right determined by congressional enactment and judicial decision. But, while what constitutes an apex and a vein are questions of law, the existence of either or both present questions of fact, to be passed upon in each case, as it arises, under the law applicable to the state of facts, as established. The assignments of error in this cause are numerous, and, before considering the same seriatim, it is well to set out, as succinctly as possible, the contention of the respective parties, as developed by the record: The plaintiffs in error are the owners of a patented claim, the Illinois, situated in the Kingston district, in Sierra county. The defendants own the Calamity claim, lying east of, and adjoining, the Illinois. Plaintiffs, working their ground, passed out under the east side lines of the Illinois, and into the ground of the Calamity, extracting ore in large quantities therefrom. Defendants brought suit in ejectment, and upon the second trial, in the county of Grant, venue having been changed from Sierra, obtained verdict, with one dollar damages and costs. The contention of plaintiffs is that, in taking ore from the ground of the Calamity, they followed a vein having its apex within the side lines of the Illinois, on its dip, under the east side line of the last-mentioned claim, into the Calamity ground; that this vein consisted of different shoots, veins, gashes, pockets, or bodies of ore, occurring in lime, or in the contact between lime and shale, all connected by stringers or otherwise, forming a continuous contact vein with its apex on the Illinois,-a shale hanging wall and blue lime foot wall, and ore in the different pockets or places, when found, while of different values, of practically the same characteristics. The defendants contend that, within the meaning of the law, there is no vein either upon the Illinois or Calamity; that the ore occurs in an immense lode or mineral-bearing lime zone; that the ore, whether deposited in the pockets, gashes, pipes, or other forms, by infiltration, sublimation, or otherwise, was so deposited without reference to the shale or hanging wall; that the entire body of lime, practically, is mineralized, or at least that deposits of mineral of the same character are found from the surface of the lime, whether overlaid by shale or exposed to the air, down to the lowest depths at which work has been done; that there is no apex upon the Illinois claim; that the so-called apex is a point upon the lime mineral lode or zone whence the shale has been eroded upon the throwing up, in a rolling form, of said lime zone; that said bare spot extends westward across the side line of the Illinois, and onto the adjoining property; that the ore is found upon this bald lime in the same form and of the same character as around its edges, where the shale still exists, and under the shale when the same remains intact; that the shale is not a hanging wall, in the sense that it forms the non-mineral-bearing rock overhanging a vein or body of mineral, which, in turn, is supported or rests upon another non-mineral-bearing rock of the same or different formation from the hanging wall, but that the shale is merely the capping; that there is no contact vein, while there is a contact between the shale cap and the lime mineral-bearing mass, lode, or zone. Defendants further contend that, if it is conceded that the Illinois and Calamity are located upon a vein of mineral, then the apex of that vein is to the north of both, and upon the Andy Johnson and Brush Heap mines. The testimony is very voluminous.

As to the first assignment, that the court erred in sustaining the objection to the question asked witness Reay, “If there is a foot wall, then there is a vein?” We think that the objection was properly sustained. Witness had just testified that there was no foot wall. He was not testifying as an expert, and the question demanded an answer to a theoretical supposition, the condition to sustain which had been denied by the witness.

The second assignment is to the refusal of the court to instruct the jury that if they believed the evidence they should find for the defendants. The two theories which have been alluded to, and upon which this cause was tried, were each supported by the testimony of numerous witnesses; and we agree with the lower court that as to the main points at issue, the existence of a vein and an apex, there was, to say the least, sufficient evidence of the nonexistence of both, not only to justify, but to demand, the submission of the case to the jury.

The third assignment of error, that the court should not have permitted the jury to take with them a small model when they retired, because the same had not been admitted in evidence, is not well taken. The model in question had been used by two witnesses to explain their testimony. They were miners who had worked upon the properties in question. They had made the model, and they admitted that it was not a perfect mechanical facsimile of the mines. The court refused to admit it as such, but it did admit it for the purpose, distinctly declared to the jury, of explaining the testimony of the witnesses. Several other witnesses testified to and from it. It was used by both plaintiffs and defendants, and when the jury, retiring, asked for the model, it was given them, and we think properly.

The 4th, 5th, 6th, 7th, and 8th assignments are to the submission of special questions Nos. 3, 5, 6, 8, and 9 by the defendants to the jury. We think that these questions were material to the issues, and were properly submitted; and No. 3, which was only to be answered upon an affirmative reply to another question, was unanswered by the jury, as was No. 6.

The other assignments of error relate to the charge of the court to the jury, leaving it as a fact to be determined by them whether a vein existed upon the Illinois mine, and whether there was an apex; and as to the law, under the rules of which, as applied to the evidence, they were to determine the existence or nonexistence of a vein and apex. We think that, under the evidence, the court properly submitted the questions as to the existence of a vein and an apex to the jury, as questions of fact to be determined by them: that there was a substantial conflict; and that the authorities cited by the plaintiffs (Hyman v. Wheeler, 15 Morr. Min. R. 519; Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. Rep. 481, etc.) do not sustain their contention, when applied to the cause at bar. The evidence in this cause is all to the effect that the shale cap or wall overlying the ground in dispute, eroded or broken on the Illinois, continuing in a semicircular form westward onto the next claim, contains no mineral whatsoever; that the mineral occurs in the lime, and, as some witnesses testify, in a few places between the shale and lime, but not connected with the former. We can recognize the definition of a “vein,” as given by Judge Hallett in Hyman v. Wheeler, 15 Morr. Min. R. 519, and still see that the jury in this cause, might, from the evidence, have determined that there was a vast bed, lode, zone, or mass of mineral-bearing lime with no foot wall, and in some localities with no hanging wall, or even cap,-in others, covered with shale, - the lime body extending throughout the Illinois, the Calamity, the Andy Johnson, the Brush Heap, and locations south and west of the Illinois, as well as possibly other mines; that this body or mass, zone or lode, of lime, was broken or cut up into fissures, gashes, pockets, veins, etc., and these spaces filled with mineral, deposited by infiltration...