Liberty Bell Gold Min. Co. v. Smuggler-Union Min. Co.

• Citation: 203 F. 795
• Decision Date: 03 March 1913
• Docket Number: 3,852.
• Parties: LIBERTY BELL GOLD MINING CO. v. SMUGGLER-UNION MINING CO. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

203 F. 795

LIBERTY BELL GOLD MINING CO. v. SMUGGLER-UNION MINING CO. ^[1]

No. 3,852.

United States Court of Appeals, Eighth Circuit.

March 3, 1913

[Copyrighted Material Omitted]

For convenience the defendant in error, who was the plaintiff in the court below, will be referred to herein as the plaintiff and the plaintiff in error as the defendant. This action is to recover damages for a willful and intentional trespass of mining property. The taking is admitted by the defendant, but it denies that it was committed secretly, unlawfully fraudulently, or willfully, or with knowledge that it was committing any trespass, but that it acted in good faith, believing that the ore was from a vein apexing in claims owned by it, and passing from the dips on plaintiff's Waters claim, and to which vein it believed at the time it was lawfully entitled. There was trial to a jury, and a verdict in favor of the plaintiff.

Henry F. May, of Denver, Colo. (John S. Macbeth, of Denver, Colo., on the brief), for plaintiff in error.

Henry McAllister, Jr., of Denver, Colo. (Jacob Fillius, of Denver, Colo., E. B. Adams, of Telluride, Colo., and Joel F. Vaile and William N. Vaile, both of Denver, Colo., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and W. H. MUNGER and TRIEBER, District judges.

TRIEBER District Judge (after stating the facts as above).

While there are a large number of errors assigned, counsel for plaintiff in error grouped them in six specifications, which cover all the issues involved, and are the errors upon which a reversal of the judgment in the court below is asked. These specifications, in the language of the counsel, are:

'(1) The court erred in charging the jury that the higher measure of damages should be allowed in case of either a willful, intentional, or reckless trespass.'

'(2) The stating to the jury of cases of timber cutting and coal mining as illustrations of the rule in trespass cases, without calling to their attention the important distinction between such cases and metalliferous mining cases, where the right to go beyond the boundaries under certain conditions is a distinct part of the grant.'

'(3) The refusal of the court to instruct that there was no sufficient evidence to warrant a finding of willfulness, except as to about 1,230 tons taken subsequently to July, 1910.'

'(4) The instruction that the burden of proof is upon the defendant to show that its trespass was not a willful or intentional one.'

'(5) The instruction as to the measure of damages in case of willful trespass, permitting the recovery of the gross assay value in the ground, without any deduction whatever either for treatment, freight, marketing expense, or even that part of the value of the ore which cannot be recovered in treatment.'

'(6) The admission and exclusion of certain evidence.'

1. The charge given by the court on this point was:

'If you find that the ore was either recklessly, willfully, or intentionally taken by the defendant company, then the measure of the plaintiff's damages is the enhanced value of the ore when and where it was finally converted to the use of the defendant, which in this case would be the full amount recovered and realized therefrom by the defendant.'

This is the part of the charge to which exception was taken, and is assigned as error in assignment of error No. 21. But in determining whether the court committed any error it is not permissible to pick out any one part of the charge, but the entire charge, or at least all of the charge which bears upon that proposition of law, must be considered by the appellate court.

The court, immediately after stating the law as set out above, proceeded:

'But if you should find that the defendant took and converted the ore from plaintiff's property through inadvertence or mistake, or in the honest belief that it was acting within its legal right, then the measure of damage is the value of the ore as it was in the ground before it was disturbed by the defendant; that is, the amount recovered and realized by defendant in its mill, less the actual cost of mining, transporting, and treating such ore.'

The most serious objection made to this part of the charge by counsel for defendant is the use by the court in its charge of the word 'recklessly.' The charge of the court is practically the language used by this court in so many cases involving this question that it can no longer be considered as an open question in this court. Durant Mining Company v. Percy Consolidated Mining Co., 93 F. 166, 35 C.C.A. 252, Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 F. 668, 679, 64 C.C.A. 180, 191, and Central Coal & Coke Co. v. Penny, 173 F. 340, 344, 97 C.C.A. 600, 605, are a few of the cases in point decided by this court. The same rule has been applied by this court in cases other than trespasses on mines. Times Publishing Company v. Carlisle, 94 F. 762, 36 C.C.A. 475, which was an action for libel; Guild v. Andrews, 137 F. 369, 70 C.C.A. 49, where the decision of an engineer who, under the contract, was made a final arbiter, was attacked.

It would perhaps have been better for the court to have explained to the jury in more concrete form, applicable to the facts established by the evidence in the case, what is meant by 'recklessly'; but no specific objection was made to the charge upon the ground that it was not specific enough, nor did the defendant ask for a specific instruction on that question.

The special instructions asked on behalf of the defendant as to what constitutes a willful trespass, which would justify the recovery of the higher damages, apply practically the same test that would be applied to a charge of larceny, and for this reason were properly refused. Thus, in instruction No. 9, asked by the defendant, the court was requested to charge: 'It is not enough to warrant a finding of willful or intentional trespass that the defendant might have known, or had facts in its possession, a full consideration of which might have led it to believe that the ore in question belonged to the plaintiff, unless it willfully shut its eyes to the situation in order that it might obtain property that was not its own; in other words, no honest mistake or negligent omission will justify a finding of willfulness. There must have been a dishonest purpose to take the ore in spite of knowledge that it belonged to another, or a deliberate omission to avail itself of knowledge at hand amounting to an intent to take what did not belong to it, to warrant such a finding.'

And in instruction No. 5, asked by the defendant, the court was requested to charge the jury:

'Unless there is substantial evidence that the defendant knew that the ore which it appropriated belonged to the plaintiff, or that it intended to appropriate the property of plaintiff to its own use, you are not warranted in returning a verdict for the higher measure of damages.'

Intent, being a state of the mind, can but seldom be proven by direct evidence. For this reason the law presumes that a party intended the natural consequence of his acts, and if a person has the means of ascertaining facts, but refuses to use these means, and, reckless of the rights of the true owner, appropriates his property to his own use, the law will presume that he did it intentionally and willfully. The court below committed no error in charging the jury on that point as it did, and in refusing to give the instructions asked by the defendant.

2. It is claimed that the court erred in its illustrations of the rule in trespass cases for timber cutting and coal mining. The court, after stating to the jury the issues raised by the pleadings, told them:

'Before asking you to give your attention directly to the facts and issues involved in this case, it may be helpful to you, in considering those issues, to first illustrate by a simple example the principles of law applicable here which must guide you in reaching a verdict, and I give you for that purpose this illustration: We will assume that A. enters upon the land of B., and cuts and removes from B.'s land a standing tree which he manufactures into lumber; thereupon B. sues A. for damages, claiming that the tree cut and removed contained 1,000 feet, board measure, of lumber, of the value of $10. The fact alone that A. entered upon the land of B., and cut and removed a tree therefrom, constituted A. a trespasser, and rendered him liable to B. A., in his answer to the suit of B. for the $10 claimed as the value of the 1,000 feet of lumber in the tree, set up that he took the tree innocently or inadvertently, believing that it was on his own land, and for that purpose he might show that his land and B.'s land adjoined, and the tree was taken from near the line. If the jury believed that he took it under the honest and mistaken belief that it was his own tree, then B. would not be entitled to recover the value of the board measure in the tree, to wit, $10, but he would only be entitled to recover the value of the tree as it stood; and for that purpose that value might be ascertained by deducting all that it had cost to cut and remove and manufacture that tree into lumber. If that cost amounted to $9, and the lumber was worth $10, it would necessarily follow that the tree as it stood was worth the difference between $9 and $10, to wit, $1, which would be all that B. could recover. If, upon the other hand, the jury should believe that A. did not make an honest mistake, but that he willfully went across the line, knowing that he was across the line, and cut and removed B.'s tree, or if he was reckless and indifferent about where he was cutting, and did not care or think as to whether it was his land or some other man's land on

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