Tyler Min. Co. v. Sweeney

• Decision Date: 16 January 1893
• Docket Number: 62.
• Citation: 54 F. 284
• Parties: TYLER MINING CO. v. SWEENEY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F. 284

TYLER MINING CO. v. SWEENEY et al.

No. 62.

United States Court of Appeals, Ninth Circuit.

January 16, 1893

John R McBride and Albert Allen, for plaintiff in error.

W. B Heyburn, for defendants in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District judge.

HAWLEY District Judge.

This is an action of ejectment to recover the possession of certain mining ground situated in Yreka mining district, Shoshone county, Idaho, and for damages. It was brought against several defendants, corporations and individuals. The writ of error to this court, however, only involves questions in dispute between the Tyler Mining Company, plaintiff in the court below, and plaintiff in error here, and the Last Chance Mining Company, defendant. There are 43 specific assignments of error, consisting of exceptions taken to the rulings of the court in admitting or rejecting testimony, and to the giving and refusing to give certain instructions. A proper determination of certain legal principles applicable to the questions presented will settle all the points in controversy. The following diagram will explain the location and situation of the respective mining claims:

(Image Omitted) From the record it appears that the Tyler location was made on the 20th day of September, 1885, in the form of a parallelogram, as required by the statute of the United States, claiming 1,500 feet in length and 600 feet in width of the Tyler lode; that on the 19th day of April, 1887, the Tyler Company made application for a patent to said ground that the Last Chance Company protested against said application, and in due time brought suit in the territorial court to determine the right of possession to such portion of the surface ground as is designated within the lines of the triangle on the diagram in the southeast corner of the Tyler location, including about one acre of ground; that in that suit the Last Chance Company alleged, among other things, that the Last Chance claim was located prior to the Tyler claim; that after two trials of said case without any agreement being reached by the jury, the Tyler Company withdrew its answer in open court, and appeared no further in the case; that thereafter the Last Chance Company proved up its claim, and obtained judgment for the triangular piece of ground without costs, the judgment reciting the facts 'that the Last Chance Mining Company * * * is the owner of, and by virtue of a valid location of a mining claim called the 'Last Chance,' made on the 17th day of September, A.D. 1885, * * * is entitled to the possession and right of possession of,' the triangular piece of ground; that, after the Tyler Company withdrew its answer, it left out from its description of its mining location the 428 feet 6 inches at the eastern end of its location; and, there being no other contest to its application for a patent, it entered the remainder of its claim, and received from the receiver of the land office a duplicate receipt showing the entry.

The Tyler claim, as described in the complaint in this action, is for the ground thus entered, to wit, for 1,071 feet 6 inches in length and 600 feet in width, containing an area of 14.77 acres. The complaint alleges 'that a large vein, lode, or ledge of quartz rock in place, bearing silver and lead, is found in said Tyler lode mining claim so owned by the plaintiff. That the same, in its longitudinal course or strike, passes into the said Tyler lode mining claim through the southeasterly end line thereof, and extends through the said mining claim in a northwesterly direction, and lengthwise of said claim, and passes out of said claim through the northwest end line thereof; and that the top or apex of said vein, lode, or ledge lies throughout the entire length of said claim, inside of the surface lines thereof, as aforesaid, extended downward vertically. That said vein, lode, or ledge in its downward course departs from a perpendicular at an angle of about forty degrees from the horizontal * * * in a southerly direction, and that the general strike or course of said lode is nearly or quite coincident with the surface lines of said claim; and that by reason of the foregoing the plaintiff is now, and at all times hereafter mentioned has been, the owner of and entitled to the exclusive possession of said vein, and so much of said vein, lode, or ledge as the top or apex whereof lies inside of said surface boundaries as aforesaid, throughout its entire depth;' and that defendants have unlawfully taken possession of said vein, lode, or ledge in its downward course, and have been unlawfully extracting and removing the ores therefrom, etc. The defendants claim that the lode upon which they are working is theirs; that the apex thereof is within their location, and that they have lawfully followed it on its dip into the earth.

1. Was the judgment in the territorial court conclusive between the parties as to the date of the location of the Last Chance claim? This question is presented in various forms. The court admitted the judgment in evidence against the objection of plaintiff. The plaintiff thereafter in the course of the trial, offered to prove (1) that at the time said judgment was rendered it was agreed between the respective parties thereto that the Tyler Company should withdraw its answer in open court; that the judgment was to be simply in favor of the Last Chance Company for the triangular piece of ground, and that the Tyler Company would abandon all right to it; (2) that the notice of the Last Chance claim was not posted upon the ground until the 22d day of September, 1885, two days after the location of the Tyler claim; (3) that there was no discovery of any kind of rock in place bearing any precious metals, upon the Last Chance claim, or within its boundaries, until long after the location of the Tyler claim; (4) that the boundary stakes of the Last Chance claim, instead of being as marked out on the map, stood some 1,380 feet further to the east, and that there never was any amended location of that claim, or change made in its boundaries until the survey of the Tyler claim in 1889. These offers, with others of similar import, were refused by the court, and plaintiff duly excepted to each ruling. The court, of its own motion, upon this point instructed the jury as follows:

'Plaintiff shows by evidence undisputed that its Tyler claim was located on the 20th day of September, 1885, and the defendant Last Chance Company shows by the evidence of a judgment, which cannot be disputed in this action, that its Last Chance claim was located on the 17th day of September, 1885, from which it follows that the Last Chance claim is the older. Now, upon that point I repeat to you that, so far as this trial is concerned, and so far as you have any consideration of the matter, the dates of those two claims are fixed by evidence you cannot consider further.'

Were these rulings of the court erroneous? The general principle that a judgment of a court of competent jurisdiction between the same parties, and upon the same issues, is, as a plea, a bar, or, as evidence, conclusive, is well settled. Whenever a cause has been once fairly tried and finally determined, the same questions, as between the same parties, certainly ought not to be tried again. In a proper case this rule should be strictly adhered to. McLeod v. Lee, 17 Nv. 112. ^[1] But when the second suit is upon a different cause of action, and there is a dispute as to what was involved in the first suit, inquiry should always be made as to the real question actually litigated and determined in the first suit, and it is only upon that question that the judgment can be held conclusive in the second suit. It must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. Cromwell v. County of Sac, 94 U.S. 353; Russell v. Place, Id. 608; Riverside Co. v. Townshend, 120 Ill. 18, 9 N.E. 65; City of Chicago v. Cameron, 120 Ill. 459, 11 N.E. 899; Hymes v. Estey, 116 N.Y. 509, 22 N.E. 1087; Le grand v. Rixey's Adm'r, 83 Va. 862, 3 S.E. 864; Foye v. Patch, 132 Mass. 110; Solly v. Clayton, 12 Colo. 30, 20 P. 351; Hickerson v. City of Mexico, 58 Mo. 62; Campbell v. Rankin, 99 U.S. 261

The prior suit necessarily involved the question as to which company had the better right to the triangular piece of ground. No part of that ground is involved in the present suit. If the prior suit had been contested, it might or might not have involved the issue as to the dates of the respective locations; but, the judgment having been entered after the issues raised by the answer of the Tyler Company were withdrawn, the question as to the dates of the respective locations cannot be said to have been necessarily, or at all adjudicated. Finnegan v. Campbell, 74 Iowa, 158, 37 N.W. 127. As between the Tyler and the Last Chance Company there was no longer any issue as to their respective rights to the triangular piece of ground; but the Last Chance was required to prove its right of possession to that ground in order to establish its rights thereto as against the United States, and in doing this it was necessary for it to show that it had a valid mining location. The date when such location was made was immaterial. All that was necessary to prove was that it was made at any time prior to the commencement of that action. It is true that the judgment recites the fact that the Last Chance location was prior to the Tyler, but the judgment is conclusive only in respect to the facts necessary to uphold it, and, if the fact of priority was immaterial to the issues upon which the case was tried, and the controversy did not turn upon it, the judgment will not conclude ...