McCornick v. United States Mining Co.

• Decision Date: 16 February 1911
• Docket Number: 3,291,3,293.
• Citation: 185 F. 748
• Parties: McCORNICK et al. v. UNITED STATES MINING CO. UNITED STATES MINING CO. v. McCORNICK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

185 F. 748

McCORNICK et al. v. UNITED STATES MINING CO.

UNITED STATES MINING CO. v. McCORNICK et al.

Nos. 3,291, 3,293.

United States Court of Appeals, Eighth Circuit.

February 16, 1911

Charles C. Dey (A. L. Hoppaugh, on the brief), for McCornick and others.

W. H Dickson (A. C. Ellis, A. C. Ellis, Jr., Russell G. Schulder and E. M. Allison, Jr., on the brief), for United States Mining Co.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER District judge.

WM. H MUNGER, District Judge.

In June, 1902, the United States Mining Company (a corporation) commenced an action in the United States Circuit Court for the District of Utah against Leonidas M. Lawson and others to quiet its title to certain named mining claims in Salt Lake county, state of Utah, which mining claims were in the possession of said United States Mining Company. Such proceedings were had in said action that in March, 1903, a decree was made and entered by said court, dismissing the action at the cost of plaintiff.

From that decree plaintiff duly prosecuted an appeal to this court, and in November, 1904, this court reversed said decree and remanded the cause to the Circuit Court, with directions to enter a decree for plaintiff as in its bill prayed for. In October following the Supreme Court of the United States issued a writ of certiorari in said suit to review the decree of this court. Thereafter, on application of defendant, the Circuit Court granted an injunction restraining plaintiff from mining or removing any of the ore from the mines in controversy in said suit until the further order of the court, upon the giving of a bond, to be approved by the court, conditioned to pay plaintiff any damages it should sustain, if it should finally be decided that said injunction should not have been granted, or in case the decree of this court should be affirmed by the Supreme Court. Such a bond was executed by W. S. McCornick and M. H. Walker, approved by the court, and filed in the clerk's office, December 8, 1905. In February, 1908, the Supreme Court affirmed the judgment of this court, and the mandate of the Supreme Court was received and filed in said Circuit Court March 2, 1908, and on the same day the injunction was dissolved. Thereafter the United States Mining Company commenced in said Circuit Court an action against McCornick and Walker on said bond to recover damages which it claimed it had sustained by reason of the said injunction. In the petition its claim of damages consists of two elements, which are therein stated, in substance, as follows:

First. That beneath the surface of said mines there are large bodies of ore of great value, containing lead, silver, copper, and other valuable metals; that during the period while said injunction was in force plaintiff could have, and but for said injunction would have, from beneath the surface of said mines, extracted and disposed of not less than 100 tons of ore daily for each and every day of said period, from which it would have made and received a large net profit each and every month during the whole of said period; that the interest on said net profits, computed at the rate of 8 per cent. per annum from the time such monthly profits would have been received to the date when said injunction was dissolved, would have amounted to not less than the sum of $72,500, which amount has been lost to plaintiff by reason of the said injunction.

Second. That during the whole of the period that the injunction was in force the market price of each of said metals of lead, copper, and silver was uniformly higher than at any time since the dissolution of the injunction; that but for said injunction plaintiff would have realized and received for the lead, copper, and silver contained in said mines, which it could and would have extracted, $260,708 more than it could have received at any time since the injunction was dissolved.

Issues were joined, and upon the trial plaintiff recovered a judgment against defendants upon the first of said claims. The court dismissed the action as to the second claim, stating:

'Concerning the question of loss of profits, by reason of depreciation, that is too remote, because the ore has not yet been taken out. The market price is variable, and it is pure speculation as to whether eventually there will be loss or profit.'

From the judgment of the court, dismissing its second claim, plaintiff alleges error, and from the judgment of the court in favor of plaintiff, and against defendants, upon the first claim, defendants allege error.

Upon the trial of the cause it was shown by the evidence that a considerable amount of ore development had been made in the mines in question, from which several mining engineers made a reasonably accurate estimate that the mines contained approximately 230,000 tons of ore. Some 80 or 90 samples of the ore were taken from various different locations, and assays made showing...