Twenty-One Mining Co. v. Original Sixteen To One Mine

• Decision Date: 17 May 1920
• Docket Number: 3359.
• Citation: 265 F. 469
• Parties: TWENTY-ONE MINING CO. v. ORIGINAL SIXTEEN TO ONE MINE.
• Court: U.S. Court of Appeals — Ninth Circuit

265 F. 469

TWENTY-ONE MINING CO. v. ORIGINAL SIXTEEN TO ONE MINE.

No. 3359.

United States Court of Appeals, Ninth Circuit.

May 17, 1920

John B Clayberg, Frank R. Wehe, and Bert Schlesinger, all of San Francisco, Cal., for plaintiff in error.

Wm. E Colby, John S. Partridge, and Grant H. Smith, all of San Francisco, Cal., and Carroll Searls, of Nevada City, Cal for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This was an action at law by the plaintiff to recover damages for the wrongful taking of ore from the extralateral segment of a vein owned by the plaintiff. In the answer and cross-complaint of the defendant it sought to recover damages for a like taking of ore from the same vein. Upon the trial of the case, the jury rendered a verdict in favor of the plaintiff in the sum of $100,000, 'less cost of extraction of the ore on account of unwillful trespass. ' Upon this verdict the court ordered a judgment in favor of the plaintiff for the sum of $100,000, 'less cost of extraction of the ore on account of unwillful trespass.'

Subsequently upon a motion for a new trial, the court ordered that the verdict theretofore entered be permitted to stand, in so far as it found the issue in favor of the plaintiff, and a new trial was thereupon awarded, for the sole purpose of assessing the amount of the recovery. Upon a new trial upon that issue, with an amendment to the complaint alleging damages in the sum of $121,000, and 'the parties having stipulated that the value of the ore taken out by defendant was $121,000, and the cost of mining and milling it was $61,000, 'the jury, under instructions from the court, found in favor of the plaintiff for $60,000, and a judgment was entered accordingly. From this judgment the defendant brings this writ of error.

There were two main issues before the court at the first trial. The first was the question of title to the segment of vein embracing the ore body in controversy. The second was the question as to the amount of damages caused by the removal of this ore body. Upon the trial of these two issues before a jury, no exceptions were taken to the introduction of evidence by either party, and defendant took no exception to any of the instructions of the court to the jury. The jury returned a verdict in favor of the plaintiff on both issues. Upon the first issue it found the title to the ore body in favor of the plaintiff. Upon the second issue it also found in favor of the plaintiff upon the question of damages, but left the amount uncertain.

The uncertainty arising out of that part of the verdict, which, after having found the damages against the defendant in the sum of $100,000, found further 'less the cost of extraction of the ore on account of unwillfulness. ' It was contended by the plaintiff that there was sufficient data before the court in admitted facts to enable it to fix the amount of the damages. The court was of the opinion that under the authority of Hodges v. Easton, 106 U.S. 408, 1 Sup.Ct. 307, 27 L.Ed. 169, it could not--

'deduct from the amount of the verdict the cost of mining, transporting, and reducing the ore, albeit that such cost be shown by the admitted facts of the case.'

The court thereupon ordered that the verdict should stand in so far as it found the issues in favor of the plaintiff, 'and a new trial was ordered for the sole and only purpose of assessing the amount of the recovery. ' In making this order, the court said:

'This case, in my opinion, peculiarly calls for the exercise of the discretion of the court in awarding a new trial as to the single issue only. It was through mere inadvertence on the part of the jury that the case was not finally and forever disposed of at the last trial.'

We are of the opinion that the court was correct in ordering a new trial and limiting such new trial to the one question of the amount of damages. The authority of the court to so limit a new trial is established by numerous authorities in both the federal and state courts: Calaf v. Fernandez, 239 F. 795, 798, 799, 152 C.C.A. 581; Farrar v. Wheeler, 145 F. 482, 488, 489, 75 C.C.A. 386: Duff v. Duff, 101 Cal. 1, 35 P. 437; Estate of Everts, 163 Cal. 449-452, 125 P. 1058; Robinson v. Muir, 151 Cal. 118-125, 90 pac. 521; Lisbon v. Lyman, 49 N.H. 553; Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann. Cas. 1912D, 588; Marshal v. Dalton Paper Mills, 82 Vt. 489, 74 A. 108-113, 24 L.R.A. (N.S.) 128; Winn v. Columbian Ins. Co., 12 Pick. (Mass.) 279, 288; Patton v. City of Springfield, 99 Mass. 627, 634, 635; Perkins v. Brown, 132 Tenn. 294, 177 S.W. 1158-1160, L.R.A. 1915F, 723, Ann. Cas. 1917A, 124.

We have carefully considered the objections to the proceedings in the court below as presented upon this writ of error. They are fully stated by Judge Rudkin in his opinion filed December 18, 1918, on petition for a new trial. No useful purpose would be served in reviewing the numerous technical errors assigned for reversal. They do not affect the substantial rights of the parties. Section 269, Judicial Code, as amended by Act Feb. 26, 1919 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 1246). Judge Rudkin's opinion in which we concur, is as follows:

'A full statement of the facts in this case will be found in the opinion filed by the court disposing of a former petition for a new trial in this action, and awarding a final decree in favor of the plaintiff in a companion suit in

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