20 S.D. 203 | S.D. | 1905
Lead Opinion
Our former decision of this appeal, now before us on rehearing, is reported in 18 S. D. 567, 101 N. W. 718, where the facts are fully stated, and it is held, upon conflicting evidence, and independently of certain testimony claimed to be incompetent and erroneously admitted, that the trial court was justified in finding that during the year 1900 the required amount of assess
The undisputed testimony, which appellant claims was erroneously admitted, to his great prejudice, is to the effect.that at an expense of $1,145, and without the consent of the owner, the corporation holding the contract to purchase the claims in dispute excavated a tunnel through a patented lode lying between its own mining property and the claims in controversy. Moreover, that it constructed a mill upon its own property at an expense of $2,000, and expended more than $200 in the employment of watchmen, who guarded the interests of such corporation continuously from September 6, 1900. Over the objection that the testimony relative to this ditch or tunnel on the Gustin property was incompetent, because the ground was neither patented nor under control of the corporation doing the work, and, also, that the Faust and Dave lodes are not contiguous to the Minerva claim, upon which the mill is situated, respondent was permitted to testify as follows: “I am familiar with these drifts. You enter the Minerva mine by an inclined tunnel, entering at the rear and near the top of the mill. More than three or four hundred feet in that tunnel there is a cross-cut
Without any further objection, except as to certain testimony relative to the employment of two watchmen, for the reason that the same did not tend to show annual representation work on or for the benefit of the Dave and Faust claims, the superintendent of the corporation holding the contract to purchase was thereafter allowed to go into all the particulars of such work as follows: “In 1900 we did, ■ altogether, about $1,145 worth of work on the tunnel going from the main.Minerva tunnel through the Gustin towards the Dave and Faust. The only object of that work was for the development of the Faust group, which included the Faust and Dave lodes. Mr. Vincent surveyed the work done in 1900. The 25 feet of tunnel testified to by him was new work. You might call it solid rock. It was caved just as solid as could be, and I had to use a great deal of timber. My engine and boiler and my engineers were employed at the same time to take away the debris, whatever we couldn’t pull to one side. We run the 25 feet on the Faust lode in 1900. The work stopped about the latter end of August. The balance of the drift there was also run through caved material about six feet wide. It will average ten feet high. We used timber from 8 by 8 to 10 by 12 inches. There was from four, five, and six men at work beside the men in the mill. The reasonable value of that 25 feet run in the Faust lode, without the expense of the mill men, put it to $11 or $12, but if the mill is taken into consideration, which I had to keep running, I would say about $14 to $15. That work of going across the Gustin claim, cleaning out this old caved drift,, tended to develop the Faust and Dave lodes. Beyond this 25 feet, where Mr.
The foregoing evidence being corroborated in every material respect by a witness subsequently called, and who also testified without objection, the facts stand uncohtrovertedly established that work for the benefit and development of the Dave and Faust lodes to the value of $1,145 was done on the Gustin claim during the year 1900. Although it seems clear that the law relative to the required assessment work on the Dave and Faust lodes was substantially complied with by what was done on the Gustin property for their development, and that the evidence relative thereto was entirely propel', it might be assumed otherwise, without necessitating a reversal, because an objection to incompetent testimony is unavailing where, as in this case, other witnesses subsequently testify to the same state of facts without objection. City of Denver v. Teeter 74 Pac. 459; Nagle v. Fulmer, 98 Iowa, 585, 67 N. W. 369.
That the tunnel was driven on the intervening claim with the intention to benefit the lodes in controversy by facilitating the extraction of ore therefrom is undisputed, and appellant is in no position to effectively urge that a trespass was committed by the corporation doing the work. Consistent with what appears to be the prevailing rule, money expended in the construction of a "wagon • road across territory some distance from a mining claim sought to be developed was held to be a sufficient compliance with the law relative to the annual work required upon such claim, and the court say: “The parties substantially agree that no ordinary development work was actually done within the surface boundaries of the claim. It is, however, strenuously contended that the law in this particular was complied with by the construction of a wagon road up Cotton
It being shown by competent and undisputed evidence, admitted without objection, that the tunnel through the Gustin property, costing $1,145, was made with reference to nothing but the development of the Dave and Faust lodes, and is not claimed as an improvement for any other purpose, it may be assumed, without deciding, that it was error to admit testimony relative to the Minerva mill site and the employment of the watchmen to protect such property. The granting of this rehearing enables us to correct an inadvertent expression in our former opinion, to the effect that the admission of incompetent testimony is no ground for reversal, unless it appears, after disregarding the same, that there is a preponderance of evidence against the findings of the trial court. In the case of Yankton B. & L. Ass’n v. Dowling, 10 S. D. 540, 74 N. W. 438, we say: “It is unnecessary to decide whether or not the court erred in receiving in evidence the judgment roll in the case of Yank-ton Building & Loan Association v. Dowling, for the reason that
Applying such rule to this case, the record of which discloses no prejudicial error, the judgment'appealed from is affirmed.
Concurrence Opinion
(concurring specially.) I concur in the conclusion reached by the Presiding Judge, except as to that portion of his opinion in which he says: “The granting of this rehearing enables us to correct an inadvertent expression in our former opinion, to the effect that the admission of incompetent testimony is no ground for reversal, unless it appears, after disregarding the same, that there is a preponderance of evidence against the finding of the court.” In my opinion this is a correct and accurate statement of the law, applicable to the admission of incompetent evidence in a case tried by the court without a jury. The great weight of authority is that in such a case the appellate court will presume that the incompetent evidence was disregarded by the court in making its findings of fact. This being so, the incompetent evidence is, in the consideration of the case by the appellate court eliminated, and in contemplation of law is expunged from the record, and is no longer in the case for any purpose whatever. The case, then, is to be disposed of by the appellate court precisely as any other case tried by the court without a jury, in which none but competent evidence had been admitted, and the rule in such a case has been so often laid down by this court as to scarcely require the citation of authorities, and it is thus stated in Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4: “On such review of the evidence this court will presume that the decision of the trial court or referee upon the weight of
Concurrence Opinion
I concur in. the views expressed by Mr. Justice CORSON.