Original Sixteen to One Mine, Inc. v. Twenty-One Mining Co.

• Decision Date: 02 March 1918
• Docket Number: 292-E,16001-L.
• Parties: ORIGINAL SIXTEEN TO ONE MINE, Inc., v. TWENTY-ONE MINING CO. (two cases).
• Court: U.S. District Court — Northern District of California

254 F. 630

ORIGINAL SIXTEEN TO ONE MINE, Inc., v. TWENTY-ONE MINING CO. (two cases).

Nos. 292-E, 16001-L.

United States District Court, N.D. California, Southern Division.

March 2, 1918

William E. Colby, Grant H. Smith, and John S. Partridge, all of San Francisco, Cal., for plaintiff.

Frank R. Wehe and Bert Schlesinger, both of San Francisco, Cal and Lynden Bowring, of Los Angeles, Cal., for defendant.

RUDKIN District Judge.

The plaintiff in the law action is the owner and in the possession of the Sixteen to One quartz mine or lode mining claim in the Alleghany mining district in the state of California. The defendant is the owner and in the possession of the Belmont, Valentine and Tightner extension mining claims, adjoining the Sixteen to One claim on the east. The complaint alleges that there exists within the Sixteen to One claim a lode or vein of rock in place, carrying gold and other valuable minerals; that such vein on its strike or course traverses the claim from end to end; that the top or apex of the vein lies wholly within the side lines of the claim; that on its downward course or dip the vein departs from the perpendicular and passes out through the easterly side line of the claim into and beneath the surface of the adjoining claims owned by the defendant, and into and beneath the surface of another claim owned by third persons, who are not parties to the action. The complaint then avers that the defendant entered upon this vein between planes drawn vertically downward through the end lines of the Sixteen to One claim, and removed ore therefrom of a value in excess of $100,000, for which sum the plaintiff demands judgment.

The answer in effect denies the title of the plaintiff, and by cross-complaint the defendant assets title in itself, and avers that the plaintiff removed ore from the vein to the value of $125,000, for which sum it demands judgment.

The issues thus presented were tried before a jury. All testimony offered at the trial related to the title or ownership of the vein under the extralateral right statute, aside from a brief statement furnished by each of the parties showing the amount of gold extracted from the vein and the cost of mining transporting, and reducing the ore. The charge of the court on the question of title or ownership was not excepted to by either party, and there is no claim of error in that regard at this time. On the question of measure of damages the court instructed the jury as follows:

'If the plaintiff is entitled to recover, the measure of damages will depend upon the nature of the trespass. If the trespass was a willful one, that is, if the ore was taken recklessly, willfully, or intentionally by the defendant or by any person under contract with the defendant, then the plaintiff is entitled to recover the full value of the ore, without deduction for the labor performed by the trespasser.'

'If, on the other hand, you find that the trespass was the result of inadvertence or mistake, the value of the property when first taken must govern, or if the conversion sued for was after value had been added to it by the work of the trespasser, he should be credited with this addition.' Again:

'The measure of damages, as I have said, as against a willful trespasser, is the full value of the ore taken; whereas, if the trespass is an innocent one, the measure of damages is the value of the ore in place, or the value on the ore after its removal less the actual cost of mining, transporting, and reducing the ore.'

Under these instructions the jury returned the following verdict:

'We, the jury, find in favor of the plaintiff, and assess the damages against the defendant in the sum of $100,000, less cost of extraction of the ore, on account of unwillful trespass.'

The plaintiff has interposed a motion for a judgment on this verdict, either in the sum of $100,000, or for the sum of $100,000 less the sum of $46,315.58. It might be stated in this connection that this latter sum is claimed to be the cost of mining, transporting, and reducing the ore, as disclosed by the statement furnished by the defendant. The defendant, on the other hand, has moved to set aside the verdict and for a new trial, on the ground that the verdict is indefinite, uncertain, and void.

It is manifest that the plaintiff is not entitled to a judgment on the verdict for the sum of $100,000. The complaint alleged that the trespass was a willful one, the prayed damages in the sum of $100,000 on that basis. The jury found that the trespass was not willful, and therefore, under the charge of the court, there should have been deducted from the amount found by the jury the cost of mining, transporting, and reducing the ore. Nor, in my opinion, can the court deduct from the amount of the verdict the cost of mining, transporting, and reducing the ore, albeit such cost be shown by the admitted facts in the case. In other words, it seems that a federal court cannot look to the testimony for the purpose of correcting a faulty verdict, even though there is no dispute over the facts.

In Hodges v. Easton, 106 U.S. 408, 1 Sup.Ct. 307, 27 L.Ed. 169, the facts were as follows:

'The record states that the jury, impaneled and sworn to try the issues, ' rendered a special verdict in answer to the questions propounded by the court.' The questions so propounded, with the answers thereto, were made the special verdict. The jury having been discharged, the plaintiffs, by counsel, moved for judgment upon the special verdict for the value of the wheat

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