Resurrection Gold Min. Co. v. Fortune Gold Min. Co.

Citation129 F. 668
Decision Date14 April 1904
Docket Number1,789.
PartiesRESURRECTION GOLD MIN. CO. v. FORTUNE GOLD MIN. CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Syllabus by the Court

In cases of conflicts between monuments called in a conveyance and the courses and distances there noted, the former, if standing in their original positions, prevail.

If monuments called have been lost or removed, the places where they were originally set may be shown by parol or documentary evidence, and, if proved to the satisfaction of the jury by a fair preponderance of testimony, they prevail over the courses and distances.

If the monuments called have been lost or removed, and their original locations are not proved, the courses and distances control the description, and must be followed in its application to the land.

Parol evidence is incompetent to substitute in a conveyance a call for another monument in the place of the call for the original monument there contained.

A round stake four inches in diameter, set loosely six inches in the ground between two convenient reference points within four feet of it, with two blazes upon it, and an inscription with a lead pencil of the figures '3-2309' upon the later blaze, does not fill the description of a post four inches square, with the figures '3-2309' cut into it, set firmly in the ground, where no reference points are available.

A full and fair cross-examination of a witness upon the subjects of his direct examination is a right, and not a privilege, of the party against whom he is called, and its denial or substantial restriction is reversible error.

The allowance of cross-examination is discretionary only, after the right has been fairly exercised.

It is the general rule in the federal courts that the cross-examination of a witness should be limited to the subjects of his direct examination.

Where a witness for the plaintiff has disclosed on his direct examination a part of a conversation or transaction, the fact that the entire conversation or transaction constitutes an affirmative defense is no bar to its disclosure by cross-examination.

Prejudice is presumed from the denial or undue restriction of a cross-examination. It is no answer that the cross-examiner could call the witness or other witnesses to prove the facts he seeks. He is entitled to bind his adversary by proof of the facts by the latter's witness.

The general rule is that error produces prejudice, which may not be disregarded, unless it appears beyond a doubt that it did not prejudice, and could not have prejudiced, the party who assigned it.

One who takes the ore of another from his land without right, either recklessly or with the actual intent so to do, is a willful trespasser. One who takes such ore without right, but inadvertently and unintentionally, or in the honest belief that he is exercising his own right, is not a willful trespasser, and may avail himself of the lower measure of damages.

Mere negligence, of the character described by the word 'inadvertence,' in ascertaining the limits of the lands or rights of the owners, will not alone sustain a finding of that recklessness, fraud, bad faith, knowledge, or intent requisite to establish a willful trespass, but it is competent evidence upon the issue of willfulness or innocence.

Gerald Hughes (Charles J. Hughes, on the brief), for plaintiff in error.

Clayton C. Dorsey (Willard Teller, on the brief), for defendant in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

SANBORN Circuit Judge, .

This is an action of trespass brought by the Fortune Gold Mining Company, a corporation, the lessee of the Fortune lode mining claim, against the Resurrection Gold Mining Company, a corporation, for the intentional removal of ore from the Fortune claim. The plaintiff alleged, and the defendant denied, that the former was the lessee from the owner and was in the possession of the Fortune lode mining claim, and that the defendant intentionally and willfully removed therefrom ore of the value of $100,000. The real issue between the parties, however, was whether the boundary of the Fortune claim at corner No. 3 was at the point where the courses and distances recited in the patent located it, or at a place about 28 feet farther northwest. If it was at the former point, the trespass of the defendant was inconsiderable; but if, as the plaintiff claimed and the jury found, it was in the latter place, ore of the value of several thousand dollars had been extracted from the plaintiff's claim by the defendant.

The plaintiff's title rested upon a patent issued in 1894 and the description in that patent upon the survey for patent made in January, 1882. The original monuments erected by the surveyor at corners 1 and 2 of the Fortune claim, when he surveyed it for patent, were standing upon the ground at the time of the trial. The monument erected at corner 4 had disappeared. The plaintiff insisted that a round stake, with two blazes upon one side of it, loosely placed in the earth and surrounded by a mound of stones at a place about 28 feet northwest of the point where the courses and distances run from the known corners 1 and 2 located corner 3,was the original monument erected by the surveyor to mark that corner, and that it was in the same place where the surveyor put the original monument in January, 1882. The patent and the field notes on which the patent was based were introduced in evidence by the plaintiff. The recitals of the patent, so far as they were material to the questions in this case, are that it is a grant of the Fortune lode mining claim known as 'Lot No. 2,309'; that this claim is bounded as follows: Beginning at corner No. 1, a post four inches square, marked 1-2309, thence south 1 degree 30 minutes west 300 feet to corner No. 2, thence south 88 degrees 48 minutes west 1465 feet to corner No. 1 at the place of beginning; and that the lot No. 2,309 extended 1,465 feet in length along the Fortune vein or lode. The fields notes recited that a post marked each corner, that at corner No. 3 there were 'no reference points available,' and that 'all corner posts are 4 inches square x 4 ft. long set 2 ft. in ground, and have cut into them the respective number of the corner and number of the survey. No bearing ties available from any of the corners.' The amended field notes recite that there was at corner No. 1 'a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 1-2309,' at corner No. 2 'a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 2-2309,' at corner No. 3 'a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 3-2309,' and at corner No. 4 'a post 4 ins. square, 4 ft. long, set 2 ft. in ground, and marked 4-2309.' Neither the patent nor the field notes describe a mound of stones as a part of any of the monuments. The original monuments which stand at corners 1 and 2 are posts 2 1/2 feet high, about 5 inches square, set firmly in the ground, with the figures '1-2309' and '2-2309' cut into them respectively about 1/8 of an inch. The stake which the plaintiff claims is the original monument at corner No. 3 is round, 4 or 5 inches in diameter, about 3 feet high, and it sets loosely about 6 inches in the ground, and is surrounded by a mound of stones. It is blazed on one side. A partial attempt has been made to square it at the top. No figures are cut into it. Some one has whittled or hewn off one side of the blaze, and upon this new blaze has faintly written with a lead pencil the figures '3-2309.'

The owner of the claim from whom the plaintiff derives its lease testified that he was present when the survey for patent was made, that four stakes of about the same character were set at the four corners, that stones were piled around them, that he did not notice and does not know how they were marked, that he does not know how the round stake at corner No. 3 is marked, that he thinks the round stake is the original post set there by the surveyors, that it looks to him like it, and that it is in the same location in which the original post was set. He testified that when the original post was placed at this corner by the surveyor in 1882 there was a stump 18 inches in diameter and 12 or 14 feet high 18 inches north of the post, and another large stump 3 feet south of the post, and that the surveyor and his assistants measured the distances from the post to these stumps and blazed them. The stumps still remain upon the ground. No other witness testified that he knew the round stake to be the original post. Several stated that they had seen the stake, in the place where it now stands, at various times between the survey in 1882 and the time of the trial. One of the defendant's witnesses testified that in 1896 he found a stake at this corner about 2 1/2 feet high and 5 or 6 inches square, but that on July 9, 1898, he looked for it at the same place but could not find it. No other material evidence upon the issue of the identity of the round stake with the original post set at corner 3 appears in the record.

It is assigned as error that in this state of the evidence the court refused to grant the request of the defendant to instruct the jury 'that a post which is round, blazed on one side, and bearing lead-pencil marks or figures, not set in the ground, but set up on a mound of stones, does not fulfill the description of a post which calls for a post four inches square, four feet long, set two feet in the ground and having the number of the corner and the number of the survey cut into said post,' and that the court on the contrary charged the jury 'that a stake such as described by the witnesses in this case as located at corner No. 3 is sufficient to meet the calls of the patent. ' The description of the land in...

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