29 P. 98 | Idaho | 1892
The plaintiffs allege that they, and each of them, are citizens of the United States; that prior to the sixth day of December, 1887, the plaintiffs were, ever since have been, ■and now are the owners, subject to the paramount title of the United States, and in the possession and entitled to the possession, of that certain mine containing a lode of rock in place, bearing gold, silver and other precious metals, situated in Treka mining district, Shoshone county, Idaho, called the “Mammoth,” and further particularly describing it; “that the defendants, claiming to be the owners of an adjacent mining Claim, called the ‘Lackawana Mining Claim/ upon the seventh -day of December, 1887, wrongfully caused said Lackawana mining claim to be so surveyed as to crop out upon and overlap ■the said Mammoth mining claim and lode, and included a portion thereof, described as follows [here follows a description of the part of the Mammoth claim alleged to be included in the lines of the Lackawana], containing an area of something over •eleven acres; that the defendants have made application for a
The plaintiffs assign the following as errors of which this court, in the present condition of the transcript, can take notice, to wit: “The court erred in refusing to recall Juror Pressey for examination on his voir dire, and in forcing plaintiffs to a peremptory challenge of the said juror.” The statement shows that Juror Henry Pressey, when upon examination on his voir dire, stated that he did not stand in the relation of debtor or creditor to either party to the action; that he was acquainted with all the parties. He was examined at considerable length both by the attorneys for the plaintiffs and by the court. He was finally challenged for cause for the reason that he had indorsed checks and deposited them in the bank, for the payment of which some of the plaintiffs were responsible, and he did not know whether they had been paid or not. The court denied the challenge, and the plaintiffs excepted. The plaintiffs then challenged the said Henry Pressey peremptorily. On the next day, and before the panel for the jury was completed, the attorney for the plaintiffs requested
The fifteenth assignment of error, which was passed upon by the court below in the order overruling the motion for new trial, is: “Misconduct of the jury, as shown by the affidavits on file, used in plaintiffs’ motion for a new trial.” The affidavit of John Smith, filed on August 12, 1890, and used on motion for new trial, states that on the eighth day of August, while the jury were in charge of the sheriff, and, under the
So long as trials by jury obtain in this country, it is necessary that all possible safeguards should be thrown around them. The supreme court of Idaho say, in the ease of Palmer v. Railway Co., 2 Idaho, 315, 13 Pac. 429; “It is not necessary for us to find that this conduct had any effect upon the verdict, in order to sustain this motion for new trial. It is enough to say that it was calculated so to do.” In McDaniels v. McDaniels, 40 Vt. 374, 94 Am. Dec. 408, the court say: “There is no practicable method to so analyze the mental operations
The following instruction was requested by the plaintiffs:
“A lode, within the meaning of the statute, is whatever the miner could follow, and find ore. Under the requirements of the law, a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral*? that he is willing to spend his time and money in following .with the expectation of finding ore; and a valid location of a mining claim may be made of a ledge deep in the ground, and appearing at the surface, not in the shape of ore, but in vein matter only.” The court modified the instruction by changing the word “willing” to “justified.” The word “justified” radically changes the whole meaning of the instruction. The question whether the miner is willing to spend his time and money is an entirely different one from the question whether he is justified in doing it. The former is a question to be answered by the miner himself, with or without advice, as he may choose. The latter word would present a question for experts and for the jury to determine. The instruction was correct without modification. (Harrington v. Chambers, 3 Utah, 94, 1 Pac. 375, approved in Eilers v. Boatman, 111 U. S. 356, 4 Sup. Ct. Rep. 432.)
The following instruction, given by the court, is also excepted to by the plaintiffs, viz.: “If you find that all of these acts necessary to a valid location have been complied with by plaintiffs, and, further, that the location was made prior to the eighteenth day of September, you.will find for the plaintiffs,” etc. The plaintiffs claim to have made their discovery on the sixteenth day of September, and to have set discovery stake then, followed this up on the seventeenth day of September by partially staking and marlring the claim, and on the eighteenth completed the staking and marking boundaries, according to law. If this were proven, then the discovery and location would date from the sixteenth day of September; and any discovery and location made after that date on the same ground, or covering part thereof, could not prevail against plaintiffs. The jury should have been so clearly instructed. The above instruction was calculated to mislead, and the error was not covered by other instructions. Judgment of the court below is reversed, and new trial granted. Costs are awarded to plaintiffs against the defendants, including the costs of the part of the transcript stricken out.