New Dunderberg Min. Co. v. Old

• Decision Date: 09 October 1899
• Docket Number: 1,143.
• Citation: 97 F. 150
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NEW DUNDERBERG MIN. CO. v. OLD et al.

97 F. 150

NEW DUNDERBERG MIN. CO. v. OLD et al.

No. 1,143.

United States Court of Appeals, Eighth Circuit.

October 9, 1899

Willard Teller and R. S. Morrison (Harper M. Orahood, on the brief) for plaintiff in error.

Jacob Fillius and Edwin H. Park, for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This was an action for mining and converting ore which the plaintiff in error, the New Dunderberg Mining Company, took from those portions of certain underground levels specified in the complaint which were within the side lines, extended vertically downward, of a mining claim of the defendants in error, Robert O. Old and Ellen Old. Two errors are assigned. They are that the court refused to permit the plaintiff in error to prove that the apex of the vein from which it took this ore was not found within the side lines of the claim of the defendants in error, but was situated without those lines, and within the lines of an adjoining claim, owned by the Dunderberg Company, and that the court instructed the jury that defendants in error were entitled to interest on the value of the ore converted from the time of its conversion to the time of the rendition of the verdict.

The ground of the first ruling was that the issue which the proffered testimony tendered was res adjudicata. When this ruling was made, the defendants in error had pleaded and proved that they had previously brought an action and had recovered a judgment in ejectment against the New Dunderberg Mining Company for the mine from which this ore was taken and that this judgment had been affirmed in this court. Mining Co. v. Old, 49 U.S.App. 201, 25 C.C.A. 116 and 79 F. 598. In their complaint in the action of ejectment the Olds had alleged that ever since 1894 they had been the owners of, and had been entitled to, the Frostberg lode mining claim, and to every vein which had its apex within the exterior boundaries of that claim; that the New Dunderberg Company had entered into the possession of the Frostberg lode and the vein thereof, and upon a vein or lode the top or apex of which was within the exterior boundary of survey lot No. 111, by means of underground workings from an adjoining claim, and had ousted them therefrom. The Dunderberg Company had answered that the Olds never were the owners or entitled to the possession of the Frostberg lode, that the Dunderberg Company had never unlawfully withheld the possession of it, and that the Olds were estopped from claiming the title or possession of it by reason of certain transactions between Robert O. Old and the grantee of the Dunderberg Company. The Olds had filed a replication in which they denied the estoppel. There was a trial of the issues presented by these pleadings, and the judgment was that the Olds should recover possession of the Frostberg lode mining claim survey lot No. 111, which was carefully described by metes and bounds, 'and of that certain vein or lode having its top or apex in those certain shafts known and called 'McAfee Shaft,' 'Rose Shaft,' and 'Turpin Shaft,' and all situate within the Frostberg lode mining claim survey lot No. 111, and being the same vein or lode disclosed in the Tyler level, No. 6 level, D, C, B, and A levels (except north fork of B level), wherever they intersect or penetrate into the said Frostberg lode survey No. 111, though the said vein or lode may, in its downward course, so far depart from the perpendicular as to extend outside the vertical side lines of said survey lot No. 111. ' In other words, the averment of the complaint was that the defendants in error owned the Frostberg claim, that the lode or vein which the Dunderberg Company worked had its apex within that claim, and that the Dunderberg Company had entered upon it underground, and had held possession of the ground where it had been found. The answer denied the ownership of the Olds, and denied that the Dunderberg Company had wrongfully entered, or wrongfully withheld the possession of, the property. These denials were surely broad enough to raise the issue, and to admit the defense that, while the places from which the ore was taken were within the vertical side lines of the Frostberg claim, it was taken from a vein whose apex was without those lines, and within the lines of the Dunderberg Company's claim; and this would have been a complete defense to the action of ejectment, because the Dunderberg Company was still in the possession of the levels when that action was commenced. The judgment in the ejectment suit demonstrates the fact that this issue was presented and that it was determined in that action. It expressly adjudges that the Frostberg vein or lode has its apex in the Frostberg claim, that it is the vein disclosed in the levels from which the ore here in controversy was taken, and that the Olds are the owners and are entitled to the possession of all those parts of the levels in question which have intersected or penetrated into the Frostberg mining claim survey No. 111. This concludes the discussion of this question between these parties. It estops the Dunderberg Company from again litigating the issue whether the apex of the vein from which it took the ore in the Frostberg claim was within or without the lines of that claim, and the trial court properly excluded the evidence upon this question. In an action between the same parties upon the same claim or demand, a judgment upon the merits is conclusive, not only as to every matter offered, but as to every admissible matter which might have been offered to sustain or defeat the cause of action. In an action between the same parties upon a different claim or demand, the prior judgment is an estoppel as to all those matters in issue or points of controversy upon the determination of which the finding or verdict was rendered. Cromwell v. Sac Co., 94 U.S. 351, 352; Board v. Platt, 49 U.S.App. 216, 223, 25 C.C.A. 87, 91, and 79 F. 567, 571. Conceding that this action of conversion is based upon a different claim from that upon which the action of ejectment was founded, still the judgment in the latter action could not have been lawfully rendered without a determination of the issue, which was fairly open under the pleadings, whether or not the apex of the vein from which the ore within the Frostberg claim was taken was within its lines. The court below committed no error in its ruling upon this subject.

The damages recovered in this case consist of the royalties which the dunderberg Company had received from ore removed from this mine by its lessees prior to February 15, 1894, when they were enjoined from taking more, and interest on the amount of these royalties from that date. It is assigned as error that the court instructed the jury that the defendants in error were entitled to this interest. It is said that this charge was erroneous, because the recovery of interest in a case of this character was unauthorized by the statutes of Colorado; because the damages sought were unliquidated, and no interest can be allowed on unliquidated damages; because the allowance of interest as damages is discretionary with the jury, and it was not the province of the court to direct its recovery; and because the complaint contained no prayer for interest. It is a general and just rule that, where interest is reserved in a contract, or is implied from the nature of the promise, it is recoverable of right; and that when property or money has been wrongfully appropriated or...