Tombstone Mill & Mining Co. v. Way Up Mining Co.

By Court, Pinney, J.: This case comes up on appeal from judgment and order overruling a motion for a new trial. The case was tried by the court without a jury, and the trial judge filed findings of fact and conclusions of law, and a judgment was entered in accordance therewith in favor of defendant. Plaintiff moved for a new trial, but before the motion was disposed of, the trial judge retired from the bench and another judge was appointed in his stead. When the motion for a new trial came up for hearing, it was overruled pro forma. The court declining to hear the motion on its merits, not having heard the evidence at the trial of the cause, appellant’s counsel now insist this court should, under the circumstances, not be governed in its decision on this point by the general rule that an appellate court will not disturb the verdict of a jury or findings of fact by the trial court where there is a conflict of evidence. They insist that the case should be now heard on appeal, as if it were on motion for a new trial in the district court. In the consideration of the case we have borne in mind the peculiar circumstances surrounding it. Still it must also be borne in mind that every presumption is in favor of the correctness of the judgment, and that neither appellate nor trial court will disturb the verdict of a jury or the findings of fact by the court, where there is substantial evidence to sustain such verdict or findings, unless errors of law have occurred, requiring a reversal. Covington v. Becker, 5 Nev. 281; Kile v. Tubbs, 32 Cal. 332; Miller v. Balthasser, 78 Ill. 302. One of the main reasons for upholding the verdicts of juries and the findings of fact of a court, where there is no indication of improper motives influencing them in coming to a conclusion, and where no errors of law occur, is that — 459 — they have heard the testimony, have had an opportunity of observing the conduct and bias of the witnesses, their intelligence, etc., and are, therefore, better enabled to arrive at the true facts of the case than an appellate court possibly can be. Having in mind the rule, upon an examination of the entire record, if it shall be found that there is no substantial evidence to sustain the findings of fact, or if there be found a material error in the conclusions of law of the court below, it is the duty of this tribunal to reverse or modify the judgment appealed from, otherwise the judgment must be affirmed. The questions, then, for our consideration, are: 1. Should the case be reversed on questions of fact or findings of the trial court? 2. Is there error of law in his conclusion and judgment? The complaint alleges the incorporation of plaintiff and defendant; that plaintiff company was the owner and in possession of the Good Enough mining claim and lode in Tombstone mining district, Cochise county, Arizona, which is therein described. That within said claim there is a valuable vein, lode, lead, or ledge, and mineral deposit of rock in place, bearing silver and other valuable metals, having its top or apex within the exterior boundaries of said claim and dipping in a north-easterly direction at an angle of twenty to twenty-four degrees from the horizontal, passing beyond the side line of the Good Enough claim in that direction, and entering the adjoining land. That on or about March 1, 1831, defendants ousted the plaintiffs from that portion of its vein or lode which had been opened and developed by defendants beyond the north-east side line of the Good Enough claim and beneath the surface of the Way Up mining claim, which at that point adjoins the Good Enough claim. Then follow allegations of value of ore and occupation: The other causes of action are substantially the same, with variations as to value of ore mined, etc., followed by a prayer for an injunction and for recovery of said land and premises and for damages. The claim for damages was dismissed without prejudice, and the question of right of possession alone tried. The defendant’s answer specifically denied the material issuable facts stated in the complaint, and for defense alleges that the Way Up Company is the owner of, and was in the pos — 460 — session, and entitled to the possession of the Way Up mining claim, and of all veins, mineral deposits, etc., the apexes of which were embraced in its exterior limits. Alleges that the ore body developed within the Way Up claim by- defendant is a vein or ledge having its apex within the Way Up claim, and prays that defendant may go hence, and for costs. It is not a cross-bill, but set up as matter of defense, and not as a counterclaim, which seems necessary under this practice. Brannan v. Paty, 58 Cal. 330. An injunction was granted at the commencement of the action, which was dissolved on the rendition of the judgment. On the issue thus formed the case was tried in the court below, the judge filed his findings of fact and conclusions of law, and judgment was entered accordingly. The findings are, in substance: That plaintiff and defendant were each incorporated, and the respective owners and in possession of the Good Enough and Way Up mining claims; that there is no vein or ledge running through the Good Enough claim parallel with its side lines, but that the only vein, lode, etc., shown by the evidence runs across the said Good Enough claim, and crosses its side lines, and enters the Way Up claim on its strike; and the ore raised and taken out by defendant company was from said vein, lode, etc., extending on its strike or course as aforesaid across said Good Enough claim in a north-easterly direction beyond its side lines, and into defendant’s Way Up claim; that plaintiff had not, within the boundaries of its said claim, any mineralized ledge, lode, belt, zone, etc., of rock dipping beyond its side lines into the Way Up claim as alleged and described by plaintiff; that all ore shown by the evidence to have been found within said Good Enough claim and the extended side lines of the Way Up claim came from, was connected with, and was a part of said vein, lode, or ledge, which upon its strike in a north-easterly direction entered the Way Up claim; that there is no vein, ledge, lode, or mineralized deposit having its apex within the exterior boundaries of plaintiff’s claim, except that which crosses its side lines and enters the Way Up claim. The sixth and last finding is, that there is no vein, lode, ledge, or mineralized deposit having its apex within the exterior boundaries of plaintiff’s claim, dipping beyond the side lines of plaintiff’s said claim into the Way — 461 — Up claim; and as conclusions of law the trial judge found that the defendant was the owner of the Way Up mining claim, with all its veins, etc., and was entitled to recover and work the same, and that plaintiff is entitled to take nothing by the action, and that the injunction and restraining order heretofore granted should be dissolved, and for costs. Upon these findings judgment was entered, which is in substance a repetition of the findings and conclusions of law. The assignments of error on the part of appellant are full and elaborate. They cover every point in the findings, conclusions of law, and in the judgment. The argument is ingenious and exceptionally able. Under our view of the case, only one finding of fact was necessary, and that is embraced in the sixth finding. The material fact, at last, is, Did plaintiff’s claim have a vein, lead, lode, or mineral deposit whose apex was located within the exterior boundaries of the Good Enough mining claim, and which dipped into the Way Up claim? This is the ultimate fact to be found, and the one upon which the judgment must stand or fall. The sixth finding is a complete answer. That plaintiff should take nothing by this action, and the injunction and restraining order granted should be dissolved, was all that was necessary, and disposes of the case. As shown above, the answer does not contain a cross-bill, and it follows that the onlyproper judgment that could be rendered is that plaintiff take nothing by its action, that the injunction be dissolved, and costs awarded to defendant. But plaintiff contends that the evidence is insufficient to sustain the findings of fact, and that the court erred in the conclusions of law, and that the judgment is unsupported by the findings. In other words, that the judgment is contrary to the law and the evidence. An examination of the evidence shows that the Good Enough claim was located in a north-westerly and south-easterly direction adjoining this claim. On its northeasterly side line lies the Way Up. The latter extends lengthwise in a north-easterly and south-westerly direction, so that the south-west end line of the Way Up abuts against the north-east side line of the Good Enough. Plaintiff claims that the Good Enough is located along a vein or ledge of mineral-bearing rock in place, which extends through it substantially parallel with its side lines, and that — 462 — this vein or ledge dips in a north-easterly direction, passing its side lines into the Way Up; that defendant sunk a shaft near the line dividing the two claims, encountering plaintiff’s vein on its dip, and were extracting the ore therefrom. Defendant, on the other hand, insists that the Way Up claim is located along a fissure vein extending in a northeasterly and south-westerly direction, and substantially parallel with its side lines; that its shaft is sunk on this vein, and that the ore being taken out by it is from this vein. That this vein extends through the Good Enough claim in a direction substantially at right angles to the side line to Good Enough. And that the ore bodies which the plaintiff claims to be on its vein, and which it has a right to follow on its dip into the Way Up, form part of the Way Up vein or lode. Section 2322 of the revised statutes of the United States gives the owner of a mining claim the right to follow his vein or lode on its dip only when such vein or lode dips (that is, departs from a perpendicular position) substantially at right angles with the strike of the vein or lode, and does not allow him to follow the vein outside of his claim on the course or strike of the vein in any case. If the vein crosses the side lines on its strike, such side lines become the end lines, and terminate the owner’s right to follow the vein in that direction. Mining Co. v. Tarbet, 8 Otto, 463. A large number of witnesses for defendant testify to the existence of a fissure vein in the Way Up claim. They swear that they examined, saw, and traced it, and found ore in it. That it passes from the Way Up claim, enters into the Good Enough, and crosses it. The judge who tried the ease believed that. And it is not for this court to say that his findings are incorrect. The rule is too well established on this point for us to disturb it. now. But plaintiff’s counsel contend that, conceding that the Way Up fissure vein exists as testified by defendant’s witnesses, still the evidence establishes the existence of the Good Enough vein, lode, ledge, or deposit. That this Good Enough claim lode extends through the Good Enough claim parallel to its side lines, and dips into the Way Up. That it has an average width of some sixty feet, and that plaintiff has the right, under section 2336 of the United Slates revised statutes, to take all ore at the intersection of the — 463 — two veins, the Good Enough being the older location. If, however, the sixth finding of fact is sustained by substantial evidence (and we think it is), then this point is not well taken. There is much evidence in the record which goes to show that the various ore bodies in the Good Enough claim, opposite the Way Up claim, are connected with the Way Up fissure vein, and flow from it, and although constituting flat ore bodies lying in strata of limestone, and at considerable distance from the fissure, yet are attached to and form a part of the Way Up vein. Ore bodies thus formed off from and connected with a fissure vein do not form a separate vein, lode, ledge, or mineral deposit. This evidence sustains the sixth finding of fact. It notes the ultimate fact at issue, and it was not necessary to find the probative facts which establish this ultimate fact. Mining Co. v. Taylor, 100 U. S. 37. The second conclusion of law, to the effect that plaintiff is entitled to take nothing by this action, and that the injunction and restraining order be dissolved, properly follows. The point made by plaintiff’s counsel, that the findings are insufficient in form and are mere conclusions of law, we think not well taken. The true test of the sufficiency of the findings is this, Would they answer if presented by a jury in the form of a special verdict? Tested by this rule, we think them sufficient to sustain the judgment: Miller v. Steen, 30 Cal. 402. Erom the fact, however, that defendant’s answer does not contain a cross bill entitling it to affirmative relief, the judgment will be modified to the extent that plaintiff take nothing by its action, and that defendant go hence without day, and recover of plaintiff all costs and disbursements in this behalf incurred. In other respects, the judgment and orders appealed from will be affirmed, and it is so ordered. Erench, O. J.: I concur in the foregoing decision of Mr. Justice Einney that the judgment as modified and the order appealed from be affirmed.