Keeley v. Ophir Hill Consol. Mining Co.

• Decision Date: 09 April 1909
• Docket Number: 2,839.,2,838
• Citation: 169 F. 598
• Parties: KEELEY et al. v. OPHIR HILL CONSOL. MINING CO. et al. (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

169 F. 598

KEELEY et al. v. OPHIR HILL CONSOL. MINING CO. et al. (two cases).

Nos. 2,838, 2,839.

United States Court of Appeals, Eighth Circuit.

April 9, 1909

W. H Dickson (William C. Hall and Ellis, Ellis & Schulder, on the brief), for plaintiffs in error.

Edward B. Critchlow (Henry P. Henderson, Frank Pierce, W. J Barrette, and John P. Gray, on the brief), for defendants in error.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

ADAMS Circuit Judge.

These two suits were actions of trespass brought to recover the value of ore alleged to have been mined by the Ophir Hill Consolidated Mining Company from beneath the surface of the 'Henrietta' mining claim in the first case, and the 'Our Boys' mining claim in the second case.

These claims were alleged to belong to the respective plaintiffs in the two cases. The mining company admitted that it mined ore as charged, but justified its action on the ground that it owned several claims adjoining or in near proximity to the Henrietta and Our Boys claim, and that a certain vein which had its apex within the surface lines of its claims extended vertically down, passed in its dip underneath the surface of the Henrietta and Our Boys claim, and that the ore taken by it was taken from that vein, and therefore belonged to it.

There is no controversy as to the ownership by plaintiffs of their claims or by defendant of its claims as alleged in the pleadings of the respective parties. The chief, if not the only, question, is one of fact whether the vein from which the defendant mined the ore had its apex in defendant's claims. As the two cases involved similar issues, it was agreed that they should be tried together, and, a jury having been duly waived, they were submitted to the court on the evidence produced by both parties. No exceptions were preserved to any of the rulings of the court made during the progress of the trial, and particularly no request was made at the close of the cases for a definite ruling that on all the evidence there must, as a matter of law, be a finding in favor of the plaintiffs. The cases were submitted to the court for a general finding according to the preponderance of the proof, and such finding only was made. On this a general judgment was rendered in each case in favor of the defendants. The only exception as disclosed by the one bill of exceptions, which, by agreement served in both cases, was taken after the entry of the judgment, and in the language of counsel was 'to the making and entry' of the judgment. The cases are brought here by writs of error, and the only assignment of error is that there was no evidence to support the judgments. Under this assignment we are asked to examine all the evidence taken on both sides and determine therefrom whether there is any substantial evidence to support the judgments rendered in favor of the defendants.

This is a question of law, one upon which the trial court was not asked to pass, and upon which it never did pass. As this is a court which, in actions at law, can only correct errors committed by the trial court, there appears to be nothing for our consideration.

Section 700 of the Revised Statutes (U.S. Comp. St. 1901, p. 570) reads:

'When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury according to section 649, the rulings of the court in the progress of the trial of the cause, being excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal, and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.'

In Cooper v. Omohundro, 19 Wall. 65, 22 L.Ed. 47, the Supreme Court held that:

'Where issues of fact are submitted to the Circuit Court, and the finding is general, nothing is open to review * * * except the rulings of the Circuit Court in the progress of the trial, and the phrase 'rulings of the court in the progress of the trial' does not include the general finding of the Circuit Court nor the conclusions of the Circuit Court embodied in such general finding.'

The same conclusion was announced by the Supreme Court in Martinton v. Fairbanks, 112 U.S. 670, ...