Southern Nevada Gold & Silver Mining Co. v. Holmes Mining Co.

REPORTS CASES OF IN DETERMINED

SupremeCourt STATEOF NEVADA TERM,

OCTOBER 1637. ] [No. SOUTHERN NEVADA GOLD AND SILVER MINING

COMPANY, Respondent, v. HOLMES MINING COMPANY, Appellant. Mining Veins—Right Locations — to Follow —Trial—Harmless Error- Impeachment—Affidavit Appeal. Verdict — Jurors — side, 1. there Where was substantial on evidence each so that the adopted theory party, according could have they may of either to the view testimony, appeal have taken of the court not will judgment insufficiency disturb the of the evidence. Comp. 1901,p. 1425],provides

2. Rev. St. U. S. sec.2322 S. St. [U. locators mining right have the all the claims surface included within location, veins; lodes, ledges throughout of their lines and of all the depth, top apex their entire or of which lie inside such lines surface although vertically, veins, lodes, ledges extended downward such may depart perpendicular far so from the in their course downward location; as to extend outside vertical side lines of said surface right possession parts but veins, lodes, that their of such outside of such ledges portions shall be confined to such lie thereof as planes between vertical drawn downward described above the end lines of their location so continued their own direction that planes parts ledges.” will intersect such exterior of such veins or Held, right hiining lodge that the of an a owner of location to a follow beyond right ledge his side is limited line to follow the down- is, laterally ward—that on its he has not the to follow it —and along strike; apex its and if there was defendant’s location the ledge easterly crossing lino, his left location its side plaintiff’s bj' erossilig westerly line, entered location its end and the ledge plaintiff’s turned from defendant’s location and entered at such angle portion an that the there could not be reached from defendant’s following ledge laterally, strike, location W’ithout or on portion. defendant could extract ore from So. Nev. M. Co. M. Co. Apjjellant. tor having 8. It defendant entered the exterior its within plaintiff's location, boundaries of therefrom extracted ore between planes vertically through drawn downward the end lines of said right plaintiff location, damages the for such acts recover ' by proof merely place be affected would not that fi'om which continuously by going such ore was extracted could be reached through ledge ledge having apex matter from a its within the exterior prior belonging defendant, a boundaries of location to the but it must appear passage further that such from the of defendant’s continuously dip’of ledge; any is made on the and if downward portion jiassago necessarily upward, of such must be made either laterally along right strike, plaintiff’s then the is not recover affected. taking plaintiff’s In an 4. action for ore from location the evidence showed profit $60,000, twenty-nine that defendant had made a net and that plaintiff’s ground. thirtieths of ore mined was taken from The ver- $48,000. Held, any for dict for error in an instruc- damages tion on measure of was harmless. necessary apexing mining pass r>. It is -not in a veins location through both end lines of the location order to entitle the owner to dip. follow the contrary error, question An

6. instruction to was harmless where touching right possession follow vein or to the ore depended qualification deposit pass on the that the should claim, controlling both end lines of the but w'here the Issue was parties ledge, the claims of the were on the and that whether same clearly jury. had been defined issue jurors by 7. The affidavits of to the effect that the verdict was reached juror averaging impendí estimates each could not bo received the verdict. ,T., dissenting. Fitzgerald, Appeal from the District Court of the First Judicial Dis- Nevada, County; Mach, trict of the State of Esmeralda O.B. udge. J

Ejectment by the Nevada Southern Hold and Min- Silver against ing Company Mining Company. the Holmes From plaintiff, judgment appeals. Affirmed. for defendant sufficiently appear opinion. The facts Bowler, Jr., Appellant: B. F. Beal and P. M. W. for I. The of cross-examination was denied defendant Plaintiff, case, trial court. to maintain called and witness, who, being duly examined Fred Corkhill sworn, testified to the defendant; extraction "of ore that he Mining was familiar with the work which Com pany, action, defendant in this did in that mine after it took possession October, of it in 1884; that it extracted ore from So. Nev. M. Co. v. Holmes M. Co. Appellant. level, stope, stope, the first shaft north old northwest snlphnret winze, stope, stope, foot-wall the Yankee stope, big' level, Corkhill winze on the intermediate eighth levels, between the tenth and above the eleventh level seventh, part mine, and above the in the eastern above level, level, the little tenth on the ninth at the round house level, places on the seventh and from other the Holmes mine, giving tonnage approxi the estimated taken and its value; capacity mate that he worked of shift boss and superintendent being foreman and extracted; while the ore was shipped that the ore was to the mill and reduced. This evi given in dence was the direct examination of said witness. Thereupon following propounded questions were cross- jrou examination Mr. "I Deal: will whether ask you tlio ore have mentioned was taken out of a from any ledge top apex the of Hill or or Chief the claim whose boundary the within exterior the Chief lines of of Hill claim at dip the surface extended or from the downward of ledge? your you of Hill Chief In direct examination places have testified from this model as to these different pointed questions. them to out Mr. Treadwell answer to his you "Q. Do I understand this model? A. do.” Are the workings out, of the mine ore from which this was taken to you testified, correctly upon which have laid down the model? Q. "Q. taken a It Was this ore from vein? A. was.” From Q. Corkhill, you vein it taken? what was Mr. testified that five hundred tons of of ore were taken out the Holmes mine level, stope, you the Corkhill from below the first shaft did "Q. any I not? A. did.” Was that taken ore from vein top apex boundary or whose within surface lines of the Chief the Hill claim at the extended surface downward vertically any dip ledge? Q. from sxich From what stope? vein was Q. the ore taken at the Corkhill Was the you places your ore taken from different mentioned direct examination, Q. a in vein? What is the Holmes mine about you Q. you say which have testified? When the ore was mine, you from taken the Holmes do what mean Q. you Holmes mine? ore Was the have testified to which having taken Company, as been out the Holmes taken veins, boundary a vein from within surface lines of So. Net. Co. Holmes Appellant. for Easterly Thomas, Northern Belle Extension General upon Belle, them, or or either of Northern objected questions to All were vein?” of said such upon ground that were not cross- plaintiff's counsel objections sustained; rul examination, were to which duly exceptions, and the ings defendant reserved of the court justifying judg assigned error, a are reversal same granting a trial. The contention ment and defendant new entered into and was and is defendant having within the surface boundaries of a vein mining and extracted ore therefrom of the Hill claim Chief subject $2,000,000. The plaintiff’s damage in the sum of witness was the acts of direct examination of this of ore from the Holmes relative to the extraction defendant taken, locality mine, particular from whence this ore was etc.; naming stopes, levels, that it taken from a mine and model, identify and made to the ledge; reference was attending the locality explain places, and circumstance open taking thus thrown of that ore. The door was inquiry, and the witness since extended exhaustive most truth, truth, testify the whole defendant was sworn cross-examination, and to benefit of was entitled to full thorough and exhaustive make examination necessary. object leading questions, if of cross-exami truth, truth, whole to ascertain the nation is to elicit may every be in the direct examina strip there concealment party produces According English rule, when a to the tion. opposing party examined, the and a witness who is sworn upon to the matters in his cross-examination confined may in He cross- examined chief. which the witness was every and is in the case. This was him issue examine English law, is the rule which common and the rule of the many of America. in of the United States obtains of the states statutory adoption in Nevada the rule which obtains It is 1900, England. (Comp. Laws sec. of the common law of England, 3095.) By statutory adoption the common law of of by legislative enactment contrary appearing nothing to of wit subject or cross-examination of examination on the being subject, not nesses, law ‘ture that the rule at common laws of constitution and repugnant in conflict with the to or M. Nev. M. Co. Holbies Ill v. Appellant. statutory language, States, in tlie "sliall be the tlie United questions in the courts of this state.” The rule of decision all propounded were in line with and on cross-examination subject evidence; matter of the direct related questions inquiry but an into the facts and circum were in connected with the matters stated the direct exami stances French, witness, v. 1 Ariz. {Iiush nation of the Corkhill. y. Ferguson Butherford, 386; 316; 25 Pac. 7 Nev. Wach State, Wager, 290; 452; sfetter v. 99 Ind. v. 26 Mich. Wilson Beinigoo, Thompson Trials, Iowa, 510; v. Glarli secs. 405-475.) permitting Sclilessinger, in Mr.

II. The court erred one counsel, plaintiff's concluding argument of the jury question delaying case, to discuss the the trial of this reading papers upon, trial, and not introduced evidence permitting and counsel to discuss the matter of defendant’s challenge juror, peremptory exercise McNamara. got objection jury (notwithstanding Counsel before the wras made) seasonably byway supposition, facts which had not proved, jury, been also matters calculated mislead the impanelment jury. which occurred on the The defend peremptorily challenge ant had the absolute Mr. giving any therefor, McNamara without reason exercised not, right, ought against the court defendant’s objections, to have allowed discussion of such exercise jury. Berry before the conduct in the case Similar v. State, 511, 522, "highly reprehensible,” 10 Ga. was held saying ought every court further that "it instance to be (Willis 474.) promptly McNeil, repressed.” v. 57 Tex. court, duty It motion, was the of its own to have interposed improper preju checked counsel his argument. People, 123; dicial line of {Farl v. 99 111. For syth Cothran, 278; Swineford, 61 Ga. Brown v. 44 Wis. 232.) closing conduct counsel his address to the jury have this case should been controlled the court. prejudice What he said was well calculated to and mislead so that a fair consideration of the evidence was not given by jury, thereby depriving defendant of a fair trial. upheld against objection He was in this the trial court defendant, thereby error reversible was committed. So. Nev. M. Co. v. Holmes M. Co. [27tli Appellant. All upon courts the conclusion that counsel, where unit§ argument jury, prejudicial make statements of evidence, matters ground which are not in it affords for new trial.

III. Plaintiff’s .1 instruction No. does not state the law. That instruction told the mining that the owner of a following ledge location is limited to his downward: that he right has not the laterally along follow its strike. This is manifest error. The miner right has the undoubted to follow his vein in its downward earth, course into the while in that depart course his vein perpen- should from a dicular and extend outside of the vertical side lines of his claim, right he still pursuit has a of extralateral thereof to apex the extent he has plane the vein within the of his end lines vertically drawn downward and extended in their own direction. He is not restricted or limited in the manner working, following pursuit may or in thereof; pursue he strike; it on its for what ais drift or level on a vein but an opening along of the vein and on its course or strike!

IV. Plaintiff’s instruction No. Cis not law. This instruc- absolutely ignores tion apex, for, the law of if it be the fact ledge that the in the Thomas its course should so curve or bend as to Thomas, cross side line of the and that the course of that dip so bent or curved that its within large the Chief angle of the Hill dip makes with its portion General Thomas No. so that a of the included planes within vertical drawn downward the end lines locations, except by of each of following said laterally along strike, necessarily it does not follow that because right defendant has no to enter or extract ore there- plaintiff right from that has a thereto. Nor does it follow complain, has a if on account of a curve or bend a vein it portion crosses side line and a apex is without lines either the Thomas or Neither, legal Chief of the Hill. contemplation, strict apexing entitled to so much of the vein thus without either claim. The instruction misleading, is therefore and serves jury, for, though to confuse the defendant be not entitled vein, which, so much of the on account of curvature, plaintiff’s claims, is without both and defendant’s So. Nrcv.M. M. Co. Holmes Oo.

Argument for Appellant. plaintiff! extracted, cannot the of recover value ore because place places defendant extracted ore from a or it had right do; plaintiff so does facto entitle to dam- ipso ages taking plaintiff therefor. It a must be from the gives right. the

V. Plaintiff's opposed instruction No. 8 is not It law. is spirit, intent, purpose to the and of the law. It is mislead- ing confusing. defendant, having apex The the the of vein, ledge throughout or claim, lode its extracted there- ore plane from lines, within the of its end drawn downward vertically direction, and, being and extended in their own prior location, the certainly rights be would entitled to all the by grant the of section Stat. Rev. IT. The S. measure of right length defendant's would be with commensurate the apex of materially of vein. This right would of affect plaintiff damage. Having prior location, to recover coupled apex, being with the continuous, the vein as the assumes, instruction admits and the words "could be by going continuously through ledge reached matter from having apex a within the exterior boundaries prior of belonging defendant,” a location would most certainly right affect the in this action to damage. Priority recover location, It would it. defeat of covering apex, required is all that is entitle locator to right possession enjoyment exclusive of of the sur- face, vein, principal as well all other have veins which top apex through- or within the surface lines the location depth, although veins, ledges out their entire lodes or such may depart perpendicular so far from their course down- ward as to extend outside vertical side lines of such sur- location; right face possession such shall be confined portions planes to such thereof as lie between vertical drawn downward as above described the end lines of Obviously, location so continued their own if direction. right possession granted, enjoyment exclusive is and that without restriction or limit as to the manner entirely enjoyment, passage it immaterial how For, being lot, made. the owner of a entitled to the exclu- right possession could, enjoyment, sive the owner right, by crawling through exercise enter

Vor,. XXVII—Í3 Nev. Co. [27tli v. Appellant. jump might, desired, over gate, or

fence, through the if right granted veins, So with exercise fence. laterally by working may ledges; be exercised lodes dip, upward; the manner of strike, on the downward right, wholly Being the owner of the immaterial. exercise is extent of within the sur- right measured exercising is not The manner of face lines. were told that instruc- statute. controlled that, extracted place from which said ore was if tion lodge continuously through going by the reached could ledge) <?., the walls of the from matter between matter {i. having apex within the of ledge its exterior boundaries defendant, right the belonging the of to prior location proof. to be affected such That is plaintiff would not to in favor say, plaintiff be entitled a verdict its would passage continuously was made downward unless such emphasize passage; dip. wish to the fact that We its nothing continuously do downward has whatever to made top apex right; with or if it be defendant’s with prior location, of lines defendant’s which the surface within admits, proof right further our is of the instruction priority apex proof of location and of con- necessary, for granted by right mining law; right; it veys the is right enjoy may our in whatever manner we exercise we projected lines, plane of our with but the within choose single exception concluding paragraph in contained one nothing "And in to wit: this section shall of section possessor or of a vein or lode the locator which authorize beyond the vertical of his its downward course lines extends upon possessed claim to the surface of a claim enter admitted, disputed It is a fact and which was not another.” trial, mining claims, the three Northern Belle, Easterly Belle, of Northern and Gen- First Extension property defendant. holds No. are It eral Thomas simple absolute, comprising title fee the usual com- surface; patented right included within the mon-law upon it with one and all is and beneath addition lines only corresponding one reservation. The addition is veins, right to follow which have their the extralateral boundaries, exterior of such claims apex within Oet. So. Neal Co. Appellant. vertically planes

extended downward within the of the end vertically lines drawn clown and continued in their own direc- adjoining ground; into tion reservation its counter- part, namely, right others exercise of same right. Anjr top lode which has its or within claims belongs or either of the claims of defendant to the Holmes Company, right has extract ore therefrom following strike, such vein either on its course or or its dip, downward course manner as suits its con- jury that, venience. That instruction tells the notwith- standing apexing prior the defendant the vein has its location, right plaintiff. this does not affect the discovery, priority locations, together that of apex doctrine, significance; with the has lost none its all-important, absolutely and this was such instruction totally ignored. VI. applicable Plaintiff’s No. instruction 9 is at all the case. There upon was no evidence base comparison instruction. None A whatever. of all the evi- conclusively dence shows that defendant entered mining operations good faith, guilty was not of fraud or negligence, throughout honestly fairly but has acted and in the full it belief had the to do what defendant years constantly It did. steadily, has been'in court for persistently, contending rights, for its the evidence which clearly belonged given shows to to it. That the instruction jury inapplicable. assuming But, evi- that there was case, in given dence the instruction The is erroneous. damages measure of in cases where the the defendant acts of through mistake, were done negligence, mere without fraud or wrongdoer loss, beyond is that the good shall make that he shall not wrong suffer a not for committed but intended; injured party to his shall be restored former conditions, compensation or The shall be made. of compensation measure in is the this class of cases proceeds "net of proceeds ore extracted.” The net ore compensation; extracted it furnishes correct of basis ’ necessary is not injured party that the should have more may order that belongs he him, for, have what is if more given, plaintiff profit by would be allowed a of reason an So. Nev. Nov. [27tli Co. v. Appellant. for of Tlie of defendant. . actual costs misadventure

innocent necessary mining, transportation, and all other reduction money product to expenditures reducing the incidental profits of the mine would be legitimate. "The net would plaintiff’s property, for the amount the measure of this plaintiff be liable for taxation on.” Yet instruc- would assumption pertinent all, at did tion, that was law, it the were told that not state “ gross extracted the value of ore deduct from should mining bringing it to the surface.” cost of the same and damages down that instruction was The of laid measure or tort committed without fraud not law. Where the is through of negligence, mistake and without notice mere damages rights plaintiff, of is of a the true measure necessary gross proceeds extracted, of the ore less costs assaying, mill- assorting, sampling, transporting, mining, expense necessary ing and other incidental order all money. object law is to do The of tlie reduce the ore right, duty for and do justice. of courts is search wrongful injury, but there been no willful or and where has faith, good without has been done is so done that which mistake, through negligence, and mere the true fraud proceeds damages in this net kind measure of cases (Waters Stevenson, 157.) The the ore. estate enters, not, one thus on account of who negligence, notice, fraud or without without wrongful mistake, willful, pur- without intent and mere being mining damaged, impaired property, pose, whose only value metalliferous ores therein. consists court, upon objection plaintiff’s attorneys, VII. The . give 10, requested Nos. 3 and refused to instructions By giving defendant, but modified tlie same. by the court said instructions so instructions modified given do law did not state the and are modified contrary law, authorizing a to and therefore error reversal judgment. Upon objection of counsel for of refused, requested not were instructions were modi- objection objection to made. No thereto was fied cover modified, plaintiff’s made counsel as but defendant and, objection thereto, from the exception reserved Oet. 117 So. Co. v. Holmes M. Co. Appellant. for made, regarded only record thus the instruction can be as given Orr, by the court of its own motion. 4. v. [O’Weil 1; Morgan Peet, 288; Scam. 111. v. 32 111. Town of JEarville Garter, 34; HStriblen, App. Iowa, 191; v. 111. Abbott v. Inst, Juries, Gibbons, Iowa, 117; Hítate .10 to Blashfield’s 156.) sec.

VIII. The modification the court of defendant’s by inserting instructions Nos. 3 and 10 therein the words pass through claims,” "as both end lines each of said was depriving plaintiff By error of a fair inserting trial. absolutely destroyed above court the instruction as requested. thereby jury that, The court told the in order to right pursuit entitle defendant to the extralateral of a having apex ,its vein or lode claims, an within either of necessary only that it should apex, but, not have the thereto, pass addition through, vein should on its course, impos- end of each claims, thereby both lines of said ing an right unwarranted unlawful to condition following the earth, vein in its downward into course beyond side lines the claim drawn downward verti- (Rev. cally. requires The law no such condition. Stat. U. 2322.) >S., right pursuit sec. The extralateral not dependent on the condition that the vein shall extend throughout "pass through the claim and both-end In lines.” 67) p. Del Monte tb M. U. Go.{case S. the court said: "Hence, party acquired ground whenever a has the title to vein, within area whose surface is the of a with few or many along strike, feet its course or to follow dip length ought vein same on its to awarded him done”; page continuing, if it can be and at the court speaking lines, places end said: "This a limit length beyond may go, of the vein he which but it does not say go that he shall not outside vertical unless side lines planes the vein in its course reaches the vertical of the end lines.” Nowhere is it said that he must have vein which either on or below the surface extends from end end line to pursue line in order the vein on its outside the vertical Naming beyond grant go side limits lines. which a does not equivalent saying nothing granted is Suppose does not extend those limits. a vein at air enters M. Nev. Nev. M. Go. Go. Holmes 118 v. Argument Appellant. for length way lialf line, across end but terminates dip beyond on location; right that vein follow his though given by plainly as is as statute vertical side lines had,extended to farther end line. in its course by A ver- jury at their verdict chance. IX. The arrived promptly illegal void, and and should thus obtained is dict apparent contained in from the affidavits set aside. It is by record, jury agreed upon the method which that they verdict; at that and should arrive a should would themselves to abide the result without further and did bind vicious; a verdict it should not be consideration. Such intelligent an discussion tolerated. It is the result of jurors, and, of the conviction of one when reasonable jury agree to abide the result a and bind themselves obtained by case, adopted in have the means this we in the manner and justice right supposed that fountain of is cor- a to claim substituting by methods, rupted resort to such vicious a disregard hazards, gambling, speculative, a reckless uncertain parties in lieu of deliberative conclu- for the opinions beliefs, upon the sions, founded conscientious upon upon they solemnly trial evidence adduced which sanctity promised truly try, of an oath to.well and under accordingly. jurors render Affidavits of and a true verdict been this state and other states to show have received (Lee Glute, chance. v. have been obtained verdicts TIindley, 275; v. Hendrickson 152; lloare 49 Cal. v. 10 Nev. Iowa, Kingsbury, 379; Go., Iowa, 379; li. 11. 11 21 Steiuartv. 361.) Supreme 12 U. first How. The case considered S. admissibility upon of Nevada Court of the State jurors themselves was the case of v. affidavits State Stewart, Judge Hawley recognized and the case at distinction between that case bar. provide The of the State of Nevada X. statutes upon ground irregularity in motion for a new trial bjr proceedings party which a to a suit was prevented trial, having a fair from' shall be made 3290-3291.) (Comp. only secs. affidavit. Laws parties irregularities knowledge who could have jurors complained appears of are the It are here themselves. jurors from the affidavits filed and used the motion So. Nev. Co. Respondent. trial, part for a appellant respondent, new on the of both that the chance, verdict was arrived at reason of adopted the method appellant prevented from having a fair trial. Treadwell, Respondent: B. for

IF sustaining I. The court objections did not err in- of plaintiff questions propounded to the witness Corkhill on cross-examination. It is the law this state that eross-_ subject examination must be confined to the matter of the chief, any range examination in and that outside of that is {Bueldey Bueldey, 423, error. v. 440-441, 12 Nev. and 14 263.) good example Nev. That case furnishes a of the rule. There, that, driving portion a witness had testified while sheep dispute, there in he had lost some 550 of them. The court held it permit that was error to him to be asked on sheep. cross-examination what was the value of those 550 opinion, cites, among correctly In cases, the court other laying Landsberger Gorham, 452; down the rule: v. 5 Cal. Bunn, v. Wetherbee 32 Cal. 106. different Two rules on this subject courts; one, have been laid down known as rule, English allowing any cross-examination as to mat- plaintiff's case, other, ter in the and the known as the Ameri- rule, confining brought can it to matters out in examination (8 102-104.) Ency. in chief. PI. & Pr. Counsel are mis- supposing Ferguson taken in Rutherford, that the case of v. 385, anything contrary 7 Nev. contains to our contention. The court that case declined to decide which of these two adopt, for, it would it shown, rules as was there the result would have been the under either same rule. But the later Bueldey Bueldey, 423, 263, case v. 12 Nev. and 14 Nev. cited, expressly adopt which we have did the American rule, and such is now the law this state. rulings But,

II. even if admitted these should be to be erroneous, they prejudice caused no nevertheless defendant; and, course, can be for error no reversal had permitted which worked no harm. Defendant was to call own, him the witness as his and obtain from the evidence sought cross-examination; this, had on this familiar any {Hemming principles, error, er cured the if there was. Co. 120 Nev. v. Nev. Respondent. lor State, 355, 359; v. (Jo., Grubb 95 Mich. v. Assurance Western 404; Whitesides, 23 Cal. ScJmur 277, 284; Wicks v. 117 Ind. Eneje 562; Pat- PL & Pr. Bodenbach, 85, 881; 133 Cal. v. Fulstone, 20 404, 408; v. JCeeley, Nev. Winter cben v. any 268.) guilty not for were Counsel refusing argument; err nor did court misconduct argument particulars complained of. In to check occurring dur- brief, matters as counsel refer to certain Sehlessinger plain- concluding argument of ing Mr. indeed, correctly facts; they tiff; have not stated but read were them at all. The affidavits have stated Sehlessinger; and, to the and Bert W. E. F. Deal those of the trial them, the decision of conflict between extent (State appeal. this to the facts is conclusive on court as 213.) made Glair, The remarks which were 16 Nev. St. themselves, improper in and were were not counsel arguments made to the legitimate replies and statements on one side jury for defendant. Where counsel counsel or other- refers, argument, to matters not in evidence in his may reply other as to improper, the counsel on the side wise granted and a trial on account matters; new cannot cited.) (2 Ency. & there reply. Pl. Pr. and cases of such exception giving an to the or refusal of instruc- III. No trial, appeal, it taken at the tion available on unless was is (Me v. point particularly stated. Gum thereof 370.) now Defendant must therefore be Melnnis, 24 Nev. objections It is made in the court belowc to the confined separate need rule that each instruction a well-settled also applicable point therein all the law stated. not contain given together, are to be read entire series of instructions they if, read, cor- whole; and so state the law as a when error, although of them omit some rectly, there is no some qualifications, proper limitations or elsewhere stated Go., 265, 273-4; (Gaples v. P. B. li. 6 Nev. G. instructions. 38-60; V. T. B. B. Hagan, 12 Nev. v. <6 Allison v. Solen 106-138.) Lastly, judge it error for a Go., 13 Nev. fact; charge jury a matter of and it is therefore as to (Const: requested. proper an instruction when to refuse such 12.) Nev., VI, art. sec. 4No. does do not contend that instruction

IV. Counsel So. Co. Holmes Respondent. for law; they correctly obviously state the could not successfully All make such a contention. claim is it immaterial whether or not defendant had the was beyond right go Thomas, the side lines of the General appeared apex that that vein had unless also objection obviously unfounded; the Hill. That Chief of for, read, when the-whole instruction is it will be seen recovery gave plaintiff, except upon proof But, quali- the latter fact. if that even additional given instruction, had not been in that ñeation defendant injured. not have In would been instructions 6 and given defendant, request expressly at the were in accordance with instructed defendant's contention. Those entirely instructions were as follows: "6. It is immaterial dip Belle, the course or vein in the what is Northern Easterly claim, First and General Extension Thomas No. 3 you preponderance believe from a unless of the evidence dispute that the ore here in taken from the was Chief of the Hill vein or from the thereof.” "9. In order to entitle any damages plaintiff defendant, plaintiff to recover from the by preponderance is, was, must show a of evidence that it ledge, body the owner of a vein or ore out of which the ore controversy taken, necessary and to do this it is plaintiff preponderance to establish of evidence that of the vein from which such was, ore was taken is, within the boundaries of the Chief of the Hill vein at the surface, vertically, and, extended downward if the this, your has failed to do verdict must be for the Holmes Mining Company, defendant.” given 6, request

V. Instructions at plaintiff, right are as follows: "5. The of an of mining owner a loca ledge beyond lines, a tion to follow its side limited right ledge downward, is, to follow the that dip; on its right laterally along he not the has follow it or its strike. If, therefore, ledge a so or bends curves its or course planes that vertical strike drawn downward to the end linos portion dip that a ledge location will include of the reached, location, cannot be that falling which from without laterally along strike, or then the owner of that location right upon portion ledge, has not the to enter that of or Nev. v. Holmes M. Co. .122 Responden!. lor find extract ore therefrom.” "6. If from evidence that there is within the lines of the General Thomas ledge No. 3 the of a location which leaves crossing easterly line, its and which enters the Chief of side by crossing westerly line, and there the Ilill its end easterly after continues on its course or strike within the location, side lines of the latter and that the of that course dip ledge bent or that its is so curved within the Chief large angle dip the Iiill with its within the General makes portion that a Thomas No. so included within planes through the vertical drawn downward end lines said locations cannot be reached from the General each of following ledge laterally along Thomas No. without or defendant, strike, as the latter then owner of the location, to enter had not has not ledge.” although portion But, extract ore from of said present has, perhaps, precisely like the one never a ease been Judge court, genius him presented to a Field enabled dispose great of it. In the to foresee case Eureka Go., Sawy. 302; v. Richmond Con. M. Oon. Oo. {Eureka 4548) jurist that learned said: "What Fed. Cas. No. by allowing ledge a certain number of feet on a miners meant might locator follow his vein for that distance was each ledge any depth and to within that dis on the course of the permitted he to hold as much of tance. So planes through the lay drawn down end lines within vertical anywhere by location, the feet and could be measured of his so, might by he the bend of on the If this were .surface. along hold, under the surface the course of the his vein ledge, and treble the amount he could take on the double being Indeed, limited the number of surface. instead of bjr rules, might in prescribed lie some cases oust all feet ledge. neighbors and take the whole No instruction is his substantially permissible defeat the limitation which would ledge, important quantity which was the most system provision in the whole of rules. Similar rules have mining districts, adopted and the been numerous con uniformly everywhere given thus has been struction that no other construction has We are confident followed. any mining adopted district been California ever v. H. So. Nev. Co. Holmes Co. for Respondent. Nevada. And the construction is one which the law would require any in the absence of construction miners.”

VI. Section 2336 of the Revised Statutes reads as fol- lows: "Where two or more intersect veins or cross each other, priority govern, prior of title shall and such location shall be entitled to all ore mineral contained within the space intersection; subsequent of but the location shall have right way through space of intersection for the purpose working of the convenient of the mine. And where unite, prior two or more veins the oldest or location shall point take the vein union, including below the all the space of intersection.” The instruction inis exact accord- ance with that (Lindley statute as construed the courts. 614.) Mines, par. 557, Counsel are saying mistaken in only that the statute relates to a union of dip; veins on the and the cases cited them do not sustain them. On the contrary, they show that section refers two kinds of union, intersection or one on the strike and one dip; on the and such is the They undoubted construction of the section. say "space intersection,” also that the words used in that section, are meaning, of doubtful and should have been explained by the so, court. If that were defendant should requested an explanatory have instruction words; of those and, having so, (joinplain not done ground. cannot on 38.) Hagan, Allison v. 12 Nev.

VII. Plaintiff’s instruction No. 8 was as follows: If "8. you find from the evidence that the defendant entered ledge having apex an within the exterior boundaries of plaintiff’s location, and extracted ore therefrom between planes vertically drawn downward the end lines of location, damages said to recover by proof merely for such acts would be affected that the place from which ore such was extracted could reached be going continuously through ledge ledge matter from a hav- ing apex prior within exterior boundaries of a location belonging proofs to "thedefendant. In order that such should defendant, appear avail the must further passage that such from the continuously defendant’s is made ledge, portion downward on the and if made, necessarily passage upward, must either Co. Holmes M. Nev. M.

Argument Respondent. laterally, along strike, plaintiff’s right then the to recover Now, very is not affected.” ledges evident that if two any manner, always possible passage 'unite it is to make a any point any point from other, in one of them to in the con- tinuously ledge matter, but that not make does them one ledge rights parties respectively or affect the to those parts ledges separate. If, which are as this instruction assumes, plaintiff’s far, claim, then, there is an so are ledges; and, there says, proof two as this instruction in such merely a case other, that one can be reached from the leaving ledge, only ledges without proves that the two united, prove ledge. have not does are one objects VIII. Defendant to instruction No. and claims in its brief that correctly this instruction does not state the damages. objection measure of That was not taken below, But, court and therefore is not now available. even point if that raised, could now be it is not well founded. In place, paragraph the first the first of this instruction is jury counsel as state it. The were told that the measure willful, damages, trespass if the was was the value of extracted, not, say, gross ore as counsel value. The might stopped court Surely, well have there. if defendant ore, out value; took we were entitled to recover its and if defendant wished to have the instructed as to how that value at, requested was to be arrived it should have an such instruction, Moreover, did not do. there can be no question paragraph correctly of the instruction (Patchen 404.) Kee.ley, stated the law. v. 19 Nev. Counsel paragraph claim that the second of the instruction was erroneous, becaxxse,they say, it was held in v. Waters Steven- son, 157, 167, that, 13 Nev. trespass accidental, if the was mistake, mere milling, the cost of as well min- ing, only should be But deducted. this instruction told the jury that the would, case, defendant in such a be entitled to mining a deduction for the bringing cost of the ore and it say the surface. It did not that defendant was not entitled any deduction, further and defendant did not ask instruction that it was so entitled. But the case of Waters say. does not only Stevenson decide what counsel It was defendant, held in. that case that innocent, if was So. Nev. M. Co. v. Oct. 1903] Respondent. tor mining and, though deducted; entitled to have the cost of language might supposed justify was there used which milling, point a further deduction of the cost of Keeley, have decided. The case of Patchen v. or could been swpra, that no shows such deduction is allowable. objection

IS. made under last counsel this head is to the modification the court of the third and requested tenth instructions defendant. As these instruc- point, tions were to same the modification was in same, it each case the will be sufficient to set out the third. by defendant, requested As that instruction read as follows: Mining Company, "3. You are that the instructed Holmes action, is, was, the defendant in this at and before the day May, 1884, alleged trespass, of 1st time of the owner, possession, in possession,, and entitled to the of claim, Easterly the Northern Belle the First Extension Belle the Northern claim and the General Thomas No. 3 claim; prior and that each of said claims was located to the claim, location of the the Hill Chief of and the defendant is patents the owner in fee now United States all of said claims, prior May 1, three and that at all times since, owner, possession, ever is the in the and entitled to possession veins, ledges all quartz lodes and or place bearing gold metals, other rock in and silver or other throughout depth, tops apexes their entire of which boundary lie inside the surface lines of said three claims vertically, dips extended downward also of the of such veins, vein or with exclusive to follow such vein or dip, veins and all the ore of such veins on their between planes through extended the end lines such claims own direction.” The court modified this instruction " inserting dips after words and also of the of such vein veins,” pass through words "as both end lines of each very instruction, of said claims.” It clear this as requested, erroneous, was and that the court have would justified refusing toto, and, indeed, been it in counsel do given not claim otherwise. The instruction modified and nothing prejudicial not, contains It defendant. does assume, jury as counsel tell the that the not defendant is passes through vein entitled to follow a unless both end Bo. Nev. M. v.Co. [27th Nev. Respondent. tor merely lines. It tells them that the defendant is entitled to follow all pass through veins which do both end lines. It was, therefore, went, entirely so far as in defendant’s and, favor; if any defendant more, was entitled to it would requested have a correct instruction. Under no circum- complain stances then can defendant of this modification. Supreme (a Illinois, Court of 71 111.100 case later than cited court), counsel from that held that "where a party asks an instruction given which should not have been all, at but the same given, is modified and he will not be position complain But, fact, the modification.” instruction, this modified, gave even as the defendant much to, more than it was entitled erroneous, was therefore but it an error favor defendant, and, therefore, of the ground appeal. reversal on defendant’s' As we discussing plaintiff’s showed in instructions 5 and portion defendant is not entitled to that of the ledge, General any, Thomas if planes which lies within drawn the end lines of the Chief of Hill. It province was the to determine whether or not the course of that was such as was described instructions; present instruction, given, and the invaded that province, and wholly should have been refused. The judge below, learned of the court in his laudable desire to defendant, be fair mistake, to the made the too common trial, being haste of a party of too favorable to the requesting the instruction —a of mistake which-the defendant advantage. cannot ruling now take This what illustrates we long believed, have judge, it is safer for a trial who can- give not on such an occasion the matter sufficient considera- tion, entirely an instruction, than, refuse erroneous rather by attempting it, expose party to correct the adverse to dis- advantage any event, however, and risk. In the court did prejudice not err to the of the defendant. (if such) may

X. The discussion be called counsel clearly of the ignored rule, evidence shows that have court, that, so often laid down this where there ais sub stantial conflict in evidence, inquire this court will not on preponderance Questions which side the lies. weight preponderance evidence, credibility of of Co. v. Holmes Nev. (or Respondent. motion jury court on witnesses, and for the trial are for trial; questions will not be considered for new and such effect, to that Among the host of cases appeal. this on court Co., 13 T. B. enough refer v. lr. tC B. it is for to Solen us 135; Molnn-is, 370. 106, v. 24 Nev. Me6urn contrary, the to the In the of direct statute XI. absence of general well-nigh that affidavits universal rule is and, in verdict, jurors impeach their are not admissible to prove relied matter here particular, are not admissible to 905-909.) (14 But bjr Ency. pp. PI. & on Pr. defendant. state, and deny is the rule this counsel for defendant Chite, authority in favor. 10 Nev. as cite Lee v. case, in that question presented But or decided no such expressly it. Affidavits the court declined to decide were, jurors true, case; as the considered these affidavits not disclose court decided that did necessary grounds trial, a new it held that it was not gen go question. But, hand, the into this on the other Stewart, 120, with v. 9 Nev. eral rule was laid down State CrutcMey, qualification; out and in the later v. case of State 368, it no doubt 19 Nev. was stated in such terms as to leave application Though the there relied here. affidavit point pz’esezztcase, the cozzrt was not to same as saying it, and, gezzeralrtzle, laid down the we have stated exceptiozzs stated, "If are rule this not one of there cases, number which it was tlzezn,”it cited a some of directly here are ruled that such affidavits as offered were Among any exceptiozz general zzot this rule. withizr . Boyce Co., Stage there 25 Cal. cases cited was Cal. jurors expressly particzzlar holds affidavits to this poizit to be admissible. considered, But, if

III. even these affidavits could part appears on the there zzevertlzeless no zniscozzdzzct jury, verdict is zzot affected. Under such oircuzn- objeotiozi it is is ziot tezzable. stanees clear counsel’s agree to Whether the did or did zzotozzee be bouzrd balloting taken, or not result to be azid whether solely way vicious, a verdict reached izz that would they freely if, balloting, agreed well settled that after that amonizt, zzot, zzpozz whether the same reached or tlze azz so Iíoijm So. Nnv. M. Co. v. íes M. Co. Nov.

Argument, lor in Appellant, Reply. verdict cannot be disturbed. That rule laid down in Olute, .149, Lee v. Moreover, cited counsel. jury if previously agree even it be certain that the did to be bound averaging ballot, result of such an the fact finally agreed upon differed, any the amount extent, substantial at, from the amount arrived thus con- clusively previous shows that did not abide (Pruitt agreement. State, App. 156; 30 Tex. Barton v. 613.) State, App. 34 Tex. Grim. But, any event,

XIII. in jury the action of the in this regard injure did defendants, not is therefore ground possible for a place, reversal. In the first possibly defendant could prejudiced by have been juror, Webster, putting action of the in nothing on his only ballot. The effect of an such act would be to reduce quotient, the amount of the damages and thus make the surely smaller; and complain defendant cannot of that. But, this, verdict, besides argu- as we showed our plaintiff’s instruction, ment as to ninth very was for a sum than much less the smallest amount to which conclusively proved entitled, anything. to be if entitled to complained As the matter now of did not affect the unani- finding plaintiff, only mous in favor of damages, jury, amount of prejudicial these acts of the if (cid:127) any one, injury plaintiff, were to the and not of course, defendant. Of the defendant can not be entitled to ground. reversal Bowler, Jr., Appellant, F. F. Deal and P. M. reply: W. I. justify The evidence is insufficient the verdict of jury. boundary While is true that the surface lines correctly four plat, of these claims are laid down on the it is line, not true that plat, the dotted red which is on the respondent’s brief, commences the Northern Belle claim easterly claim, extends to the side line of that thence across the General through Thomas No. 3 claim and the east side line of through that claim and thence the western end line of the Chief of the Hill length claim and claim, is warranted the testimony, or that it finds support substantial dispute the record. There is no Nev. 129 Co. Holmes Argument Appellant, Reply. for in ledge, by as to the existence of the Holmes it is called witnesses, boundary within the lines the three claims of appellant, ledge nor of the existence of the Chief of the Hill boundary within the lines of the Chief of the Hill claim at surface, ledges the but the evidence that shows these two entirely separate are distinct and from each other. The Hill, underground, Chief of the at the and surface exists entirely serpentine in hanging the rock which is the wall of ledge. hanging Holmes and foot-wall of Chief ledge serpentine of the Hill are rock, both and there is ledge any vein or opening formation matter shown in or working underground, either on the surface or shown upon any map by evidence, testimony or model in any ledge witness which in connects the the Chief of the Hill ledge; contrary, every with the mechanical ledges through country connection' between the two run is opening country brief, rock. As we have said in our this rock, separates ledges, the two over feet wide is surface, underground, at the and 250 feet-wide between points ledges in nearest the two where there con- is " by ledge peters nection work. The Chief of the Hill either out” on surface its course towards the west end line claim, or it turns toward the north side line of that claim. Its limitation on the surface toward east end line claim, workings of the Chief of the Hill and in the near the surface, plainly seen, is to be and is testified to all the every witnesses, and, opening going dip, down the ledge "peters out,” that, map fades so away clearly appears testimony, model and that clearly Chief of the Hill within the end lines of the claim, disappears, Chief of the Hill and that on its openings underground connecting ledges the two separation by country there is a division or 250 feet of rock. appellant respondent II. The witnesses for do not actually materially developed differ as to what They agree the Hill all works Chief of claim. tunnel, following of the Hill Chief lower after Chief quite distance, the Hill Hill vein leaves the Chief of the point westerly at a No. vein about 43 feet from winze tunnel then runs towards the Holmes vein a distance Vyi, XXVII-i) So. Nev. M. Co. v. I-Iolmes M. Co. Appellant, Reply. for going feet, feet about 200 to vertical winze down about GO and that a drift connects bottom of that winze with the They agree Holmes eleventh level. tun- also this lower country rock, ledge, nel is all after it leaves the as is also part winze, the winze and of the drift from the bottom of the respondent say country witnesses that this rock vein, is a "horse” in the Chief of the Hill and that this separation "horse” does not constitute a between the Chief " of the Hill vein and the at 12” on the eleventh level miné, point they say of the Holmes at which "12” the Chief Hill vein unites with the Northern Belle vein. The however, by facts, appear testimony, as their show that the vein, by workings, just Chief of the Hill as shown exists represented in by appellant’s as model as testified to limitations, dip witnesses. The direction and of the Chief vein, by of the Hill as showm the and in works the model maps, testimony, prove beyond and on the almost a doubt that the Chief of the Hill vein has no connection whatever, except a mechanical tunnel, one means of drift, winze and with dispute the vein from which in the ore course, dip, was taken. The and limitation of the two veins controversy being facts, positively established as there is theory secondary no room for being evidence. There (dear separation country rock between the two veins estab- positive testimony lished the direct of all the witnesses on sides, opinions expert both earthly witnesses are of no force, though appeal. the case is here on

III. The error of the refusing district court in to allow witness, Oorkhill, Fred pointed to be cross-examined, as opening out in brief, our testimony was not cured appellant. witness when called for the The cross-exam- upon any ination was not new matter. The witness was a disinterested employment appel- witness not in the lant, right and the away by cross-examination was taken the district court. duty

IV. It was the of the court to construe the certified copies of the patents notices of jury. locations and to the province "It is both the duty of the court in civil cases expound jury to all written instruments and state effect,” (Am. Eng. Law, ed., 2d Ency, 23, vol. p. & v. Co. in Reply. Appellant, notes.) The constitu- and authorities cited respect charge in judges shall provisions that tional testimony fact, may and declare but state matters of juries charging as to matters law, prohibits from courts mean, controversy, nor was does not fact that are admitted, an that, or when mean, a fact is when intended to in evi- writing patent'is introduced as a such instrument jury the effect of dence, not state that courts shall court, by its modi- or instrument. admitted facts incorrectly, and the law declared fication of instruction right appellant had only extralateral told passed veins as patents of such under the appellant’s We claims. of each of both end lines asked; that it was was correct claim that the instruction meaning- make it erroneously changed by so as to the court proved so facts and to those applied to the admitted less as them, question conclusively that no court had law entirely a matter of as to instruction was and that this controversy. a matter of fact and not as to affidavits material conflict between V. was no There - the action The vice of Schlessinger Mr. Deal. of Mr. respondent to dis- permitting counsel for the court was part record. So jury that were matters to cuss by the concerned, as shown part of the trial was far as this a had before might have been here, trial as well record airy man had meeting observed no rules were mass where but, understand say pleased, as we he a what argu- jury, their counsel, addressing must confine law, by the evidence. the facts as shown ment to Go., Tel. Wright Illinois and Miss. v. In the case of VI. very fully discuss Supreme Court of Iowa Iowa, 20 admissibility question upon the the authorities a new trial jurors support of a motion for affidavits finally ques- resolved jury, and show misconduct admissibility for that principle in favor of upon tion subject. The any upon purpose in the absence of statute following sustaining the English eases court cites law: Par jurors common admissibility at of affidavits of Beamer, Fowler, Phillips 1 Seames, Beamer, 320; v. 1 v. Farthing, Yicary 189; v. Dean, 441; v. Oro. Eliz. Metcalf Hoijues 132 Nev. v. M. Co. Rehearing. Petitioner for ol 411; Hay Palm, Hall, 225; v. Cro. Eliz. lor v. Norman Beau- (in Wells, J., says mont, Wills, the settled 487 which O. Harcling jurors); Stewart, v. 8 rule to allow affidavits of 598; Moore, 455; Birch, P. Hindle v. 1 Milsam v. Dowl. C. Price, Kings- Hayward, 9 134. In the Hendrickson v. case of bury, Iowa, 379, jurors 21 it was held that the affidavits of upon principle show that the verdict was were admissible by juror marking by each obtained down sum desired adding altogether dividing him and them the amount by pursuant previous agreement. 12 of Bar- case Wade, Iowa, effect, land v.' is to the same as to an average by being proved jurors upon verdict the affidavits of (Warner principle. Robinson, Root, 194; v. Brad- Conn. ley’s Bradley, Blledge Todd, 112; Lesseev. 4 Dali. v. 20 Tenn. (1 (1 Humph.) 43; Baker, Humph.) 399; Bennett v. 20 Tenn. (1 157; Harvey Jones, Humph.) State, v. 22 Tenn. Crabtree v. Smeed) (3 (7 Baxt.) 302; Joyce State, 35 Tenn. 66 Tenn. (1 273; Go., Hast Tenn. v. N. Western G. R. R. 65 Tenn. 241.) Pickle, respectfully as, by It

VII. submitted that the statutes state, jury only by of this (cid:127)misconduct of the can be shown affidavit, and that as misconduct of the nature such as that only shown affidavits on both sides can be shown jurors themselves, affidavits and that those affida- proved beyond any question vits that the verdict of the it.is verdict, was not a fail’ was not result of consid- jurors, eration of the evidence but result of aggregation average, the verdict should be set aside and granted, only upon trial ground, new this all grounds appellant moved the district court. por Rehearing.

On Petition Beal, H. F. for Petitioner: IF. Appellant by surprise

I. is laken to the as conclusion by reached the court relative to instruction No. as the materiality question of the instruction in never in was suggested printed arguments, manner in or oral appellant by has not been heard It as this. was assumed argument material, both sides at the that the instruction was argu- and the contention of counsel for the respondent his So. Nev. M. Holmes M. Co. Argumeilt Rehearing. o£ Petitioner tor immaterial, ment and brief was not that the instruction was it, requested, erroneous, because, that as was as he claimed, first, solely fact; second, as to a matter of was ignored ledge because it the claims or that the issues passed through General Thomas No. 3 claim both side lines through lines; third, that claim and the end because Company reason of bend of that the Holmes had right beyond easterly it at all fallow side line claim, or, words, plaintiff that other had no extra- right ledge, because, by respond- lateral as to that as claimed ent, pass through lines, it did both side and that those side claim; fourth, end of that lines became lines because the and, instruction, requested, erroneous, modified, as was as tha,n charges rights, though that defendant has some less really has; fifth, that the given, instruction as modified and nothing prejudicial contains to the defendant and does not tell the that the defendant is not entitled to follow all pass through lines; and, sixth, do not veins which both end instruction, modified, gave that the the defendant much to, more than it was entitled and was therefore erroneous. This court hold instruction No. as modified given jury, erroneous, district court and to the was but that any issue, the modification was immaterial to and as to these " say: requirement that the vein matters mineral should pass It both end lines is erroneous. must be con- (171 ceded, 67), in the Del as decided Monte Case U. S. right the miner has the to follow his vein on its outside lines, ever, the vein course, of his vertical side whether reaches its end lines not.” The modification was imma- any issue, jury. terial to could have misled the No right question touching to follow vein or the depended upon possession qualification ore deposit pass through that the mineral should both end lines controlling question, upon of the claim. The tried, was whether the General Thomas No. 3 and case upon lodge. Chief of the Hill were the same If were not, had no cause of action. Whether an instruc- depends upon material or not the issues of fact made tion is prima pleadings facie case made part party evidence introduced suit which Nev. M. Go. v. Holmes So. Go. Rehearing. of 'Petitioner for posses- requests the The action was recover instruction. claim, therein, throughout the of the Hill sion Chief tops apexes the depth, entire the of which lie inside their or claim, damages boundary for lines that surface alleged by veins. taking the of ore such the defendant from dispute at the trial about II. There was whatever plaintiff claim, Hill title of Chief of the nor as Thomas title of defendant to the Belle General Northern claims, dispute as to the extralateral No. 3 but whole rights claims, belonging to these several as all of the ore dispute entirely of the bound- was taken out outside surface ary surface, extending claims down- lines all these at vertically. by it had Defendant its answer denied that ward plaintiff ejected the Hill ever ousted or from Chief of any claim, therein, any any or taken out ore from vein or therein, by supplemental alleged that it vein its answer any any having not extracted ore from vein had mined or claim, top all the in the Chief of the Hill that but from men- ore it had ever mined or extracted was the claims having apexes and from the veins tioned the answer in such There was no evidence that the defendant claims. ejected claim, Hill had ever from Chief therein, opinion plain- of the or from unless country rock, 700 feet wide at the tiff’s witnesses—-that underground, points at and 300 feet wide the nearest surface separating from the ore was from the the vein taken workings Hill under- vein found in the of the Chief "horse,” separation— ground is not constitute a does is such evidence. attempted Appellant upon argument

III. to show not alone, testimony of that of the his witnesses country not a respondent’s, rock mentioned is "horse,” country rock because was not shown underneath, sides, at each end'or on both was surrounded apexes It is which the the Chief Hill claim. vein grave calamity, very matter, amounting to a if it be the (¡an rights mining in this claims law state away opinions. Whether the established or taken body country "horse,” rock is or mentioned susceptible demonstration, as was testified of absolute M. Nev. M. Co. Holmes Oct. 1903] Rehearing. Argument oí Petitioner ior being that evidence uncontradicted Mr. Anderson. The con- question taken was not in was vein from which the ore matter, sepa- working in but was any vein nected in actual country the rods: from by feet of rated the surface 700 country by Hill, feet of vein in the Chief of the two, in point between the underground at the nearest rock dispute, fact, there was the about which connection with dispute the ore was vein matter from which that all the inclines, tunnels, drifts, stopes, and by taken, as shown model, sides, the map and on the on both other marks on which, in by sides, from a vein both was witnesses on in the vein course, not run in the direction in its did under- upon and in all Hill claim the surface Chief of the run, by plaintiff the is shown to ground workings done right angles at to the course matter runs that such vein weight Hill, is of such as not the in the Chief of the vein contrary. any expert the by opinion the be overcome by plaintiff’s witnesses do estab- The facts testified country is a probability that the rock a remote lish even necessary that the walls of the should It "horse.” country rock, it and converge beneath the mass of about Hill, of the Chief of What are walls at both ends.' theyf in vain The court will look and where are placed for the find where the witnesses record to plain- for the of the witnesses None either of those walls. question here testify There is no were. tiff did where credibility witnesses, to the existence of but as as to upon necessary which alone a wit- facts evidence of country question saying rock justified in that the ness exactly what the has before This court is a "horse.” had, and this court would the district court had, and what refusing a the district court by reversing the order of not, uphold jury system, but would trial, interfere with new by upon the con- imposed them perform duties it and and laws of this state. stitution by plead the issues made what

IV. It has been shown evidence made Now, the case ings what are. was exam That ease must be f part of the defendant question the instruction whether alone to determine ined 220; Levigne, (Moresi v. Swift, 13 Nev. State v. material. So. Nev. Co. Holmes v. Rehearing. Argument of Petitioner 265; 442; People Taylor, Fozsr. Harvester 17 Nev. 36 Cal. 615.) Bussell, Works, 343; Davis v. 52 Cal. Each 83 Cal. applicable facts, party to the to have the law has trial, given evidence, admitted at the as shown his or as rule, jury by trial This is the even where court. conflicting. Defendant introduced evi the evidence is bjr patents of the United dence three issued Government Belle and the Thomas States to it for the Northern General claim, No. 3 as a matter of law defendant’s establish ownership at the trial that all the of them. It was admitted planes ore taken out the defendant was from between northerly made end lines of the Northern Belle and easterly line General Thomas No. 3 claims end Easterly claim, of the First Extension of the Northern Belle vertically through end and drawn down such line continued indefinitely easterly. northerly in their own direction The easterly end line of the Northern Belle and the end line of Easterly parallel the are to each other. It First Extension duty court, evidence, was the under this to instruct ¡jury a that the defendant the owner the as matter of law was possession claims, and the three entitled to exclusive of these veins, ledges throughout and all and lodes their entire depth, top apexes the or of which lie inside the surface boundary lines, and also of the to follow these veins between such surface boundaries of claims outside the verti upon patents The cal side lines. locations which the men prior tioned issued were to the location of the Chief of the applicable Hill. There no other is law to the facts stated except section 2322 of the Revised Statutes of the United States; that, alone, gives rights and that extralateral to the quartz mining claim, by owner of a lode and that section given by highest and the construction it the courts of the rights governed United States must such be and determined. respondent it true that While is the contended that the vein in the General Thomas No. 3 both the crossed side lines passed through that claim on its course and the east side westerly lines into the end line of the Chief of the Hill claim, respondent’s give and the did witnesses as opinion through that such was the course of the vein the claim, east line of the No. 3 side General Thomas M. Co. v.I-Iolmes Rehearing. Argument ol Petitioner £or opinions by plaintiff the the instructions asked by court, given were evidence contention of plaintiff nothing question have whatever to do with as materiality That must to the of instruction No. 3. be deter by by mined case as made the defendant. The court any in to find will look vain record instruction 2322, otherwise, in in either or which section substance was given requested given,-except jury, defend 10, given, nor instruction ant’s instructions 3 was except requested given, applicable to be those instructions ledge, by to a case a such as that testified to where witnesses, requested defendant’s exists. The instructions by charge plaintiff given court as to applicable plaintiff, the law to the ease made but in applicable them none of is the law case made given. argar question which most of defendant question ment whether the ore in was directed was was from plaintiff’s apex whose is in or from claim one whose apex claim, and the the defendant’s witnesses for plaintiff those for the defendant as differed from to whether Thomas No. 3 and that the Chief the vein the General same, followed, Hill means if was the same, had no cause were of action. vein from the ore taken was from vein If the claim, in the Chief of the Hill whose between planes and such vein was drawn described section separate No. vein from the General Thomas plaintiff just much entitled to a verdict if the was as same, the were and the ore taken veins two claims was yet dip vein, the was entitled to from of such passed if vein in its course out the north a verdict such erly line General Thomas No. as testified to end witnesses, through claim, line of and the side defendant’s plaintiff’s witnesses, point at the on its the as testified respondent’s brief, map, plaintiff’s and shown on course planes by defendant was between made if the ore taken out and northerly line of the General Thomas No. 3 the end through point parallel to such line plane drawn end a passes through the side ledge in its course east such where right angle to said side claim, and at a line. Sub Nev. M. Co. v. Holmes M. Co. Rehearing. of Petitioner stantially all the ore testified to was taken out between those (See model, planes. maps sides, and testi on both mony plaintiff.) appellant’s All of Fred Oorkhill for that, the vein in the Thomas No. witnesses testified General northerly claim, pass through line of that and does end they brought passes ore from the vein where it so with assays gold showing and No on value silver. witnesses dip either side testified that the of the vein the General northerly, No. 3 Thomas claim was or between side lines northerly in the direction of the end line that claim vertically, contrary, dip but, on the was extended down nearly easterly right angle shown to be at a with the side line of vein matter in of defendant’s the claim. No north, a toward the but that of the Chief of claims has everywhere surface, surface, Hill and on the beneath the dips until toward the north and continues in that direction respondent pinches plat in out. Take the the brief for parallel northerly a end line of the Gen line draw right angle 3 at a to the east side line of eral Thomas No. claim, passes through point line where the red see, by east, reference to the toward the and the court will testimony maps model, sides, and the on both plaintiff, question Fred Oorkhill for the that the ore belongs planes to the defendant taken between those " Where a vein crosses one end of under section 2322. departs designated end the lines the locator as an line through line the extralateral is defined to side plane parallel line. A direction of the crossed located indefinitely produced end line one drawn such crossed point dip applied at in the direction of the where segment of the vein lode crosses the side line will carve out belong throughout depth, to the locator.” its entire which will 1077.) (2 Lindley p. Mines, All the witnesses for 3d ed. defendant, Mining Company, that there testified mentioned, in the three claims which com was but one vein Easterly at the e:rd line of the First Extension menced east through westerly through end and extended that claim Belle and General Thomas No. 3 line into Northern northerly passed claims, to and end line, mentioned; of both of those claims last and this Nev. v. Co. O. oí Opinion Belknap, the J. Court — ledge surface, and, at the has in claims is a those two wide northerly stated, passed through the end lines of both. been any question this made the Can there that as to case witnesses, facts in with the admitted defendant’s connection title, to the that section 2322 of the Devised and evidence only issue, applica material and was law Statutes was ble No. as modified to that case! Instruction depended court, jury rights in that extralateral told effect running through claim, ledge end both lines of and, did not run if the believed that line Thomas No. 3 on its north end of the General rights course, had no extralateral even to that the defendant in it did in that claim on course extent that run line, in and that the defendant such case direction of rights If had extralateral whatever. the record shows no plaintiff’s petition, what stated this instruction No. 6 materiality bearing upon has instruction No. 3. No. 6 does manner relate to extralat Instruction rights, nor as to the which confers them. That eral law applicable part instruction was evidence on the defendants, the vein in Hill to the effect that the Chief of the entirely within claim at the surface was its exterior bound every working aries, disappeared below the and part workings. deepest at the of these surface Court, J.: C. By Belknap, ejectment recovery an action for the

This is damages possession plaintiff’s and mine for ore extracted. jury, District It tried First Judicial Court and a was posses- and verdict rendered in favor for the mine, damages $48,000. sion of the for sum overruled, made and A for a new trial was and from motion judgment appeal an has been taken. order respondent at It was conceded the trial was owner claim, appellant of the Hill the owner of the of the Chief Belle, Easterly First Extension of the Northern Northern 3, Belle, General Thomas No. that each of these appellant prior respond in location to that of claims of Avas ejectment Although plaintiff’s action was ent'. eontroArersy appel respondent real whether mine, M. Nev. M. Co. Holmes Co. 140 O. J. Belknap, of the Court — OiMiiion Thomas No. 3 much of the General entitled to so lant was of the Hill location. within the Chief vein as is No. 3 and Respondent that the General Thomas contended upon ledge; that the the same the Hill claim are its Chief of ledge easterly line, side crosses its Thomas No. 3 General westerly ground end Hill at its Chief of the and enters the of easterly in the Chief line, in an direction thence runs ledges upon the ground; are two distinct Hill that there Belle, other the General the Northern surface—one body by a of 3; ledges divided that the are Thomas No. width, indicate varying but country sufficient rock workings upon fissures; underground separate that practically the eighth level of the Northern Belle mine— owing slope Thomas No. level of the General first ledges country separated rock hill—the mass of of the separation down- feet, that the continued about level, disputed ore was from which the the eleventh ward to taken. with that of the identity Thomas No. 3 of the General

The through part by a drift Hill was shown Chief tunnel, Hill from which country the Chief of the rock from upon by appellant stopes made 65 feet to a winze was sunk ground respondent, and was level within the eleventh practical testimony by expert and that of supplemented same, ledges with were the effect that the miners to the Appellant upon was based. which the conclusion the reasons ledge Belle extended the Holmes or Northern contended claims, wit, Belle, Northern First of its each Belle, General Easterly Northern Extension is several hun- 3; at surface No. Thomas only one vein width, and that there feet dred country rock between the General mining ground; that the separation of Belle is not a 3 and the Northern Thomas No. ledge, the walls veins, an intrusion within by miners; there ore commonly is no a "horse” called and the Thomas No. 3 Chief between the General connection separate vein, Hill; and either dis- that the latter is northerly reaching side line before turns to its appears No. 3. Thomas General support that the evidence is insufficient

It is claimed So. Net. v. Holmes Co. Opinion Belknap, C. J. Court — conflicting upon all the verdict. The evidence material points. upon There evidence each side. was substantial respondent adopted The have the theories of could majr according appellant, to the view have those of upon appeal testimony, taken of the this court could not properly judgment upon ground of insuf disturb the ficiency jury adopted respond the views of evidence. denying ent. It the district court was sanctioned trial, motion for new and for this court now to interfere ground against weight the of evidence the that the verdict is juries. be, effect, would abolish institution Among given rerprest respondent at the instructions "(5) following: right are a min- The of the owner of ing ledge beyond location to follow a his lines is limited side right ledge is, to the on its follow downward—that dip; right laterally, along and he has to follow it or not If, ledge therefore, its strike. so bends or curves its planes through course or strike that vertical the end drawn dip portion of that location include a of the lines will ledge cannot be reached from that location without following laterally along strike, or its then the owner of right upon portion location has not the to enter ledge, or to extract ore therefrom.

".(6) is, If the finds from the that there evidence 3, apex within the lines No. of a General Thomas ledge, easterly by crossing which leaves that location its side line, by crossing Hill its which enters the Chief of the westerly easterly line, end and which thereafter continues the latter loca- its course or strike within the side lines of tion, and that the of that so or curved course bent dip large angle that its within the Chief of the Hill makes dip por- with the General Thomas No. 3 so thaí a its within planes tion of the included within vertical drawn down- ward end cannot lines of each of said locations following be reached from the General Thomas No. 3 without ledge laterally along strike, defendant, or their the as right location, the owner of the latter had not and has not the ledge.” portion to enter or extract ore from that of said objections appears The the instructions bo following contained in the "And limitation words: he has Hotjues Co. Nev. C. Belknap, ot J. Opinion Court — along right laterally Under its strike.” to follow Comp. provisions Rev. St. U. S. S. [U. of section mining 1901, p. 1425], "have the locators of claims St. possession enjoyment right of all the sur exclusive their of all the lines of location and included within face throughout depth veins, ledges top their entire lodes and lie inside such surface lines extended down of which veins, ledges may vertically, although lodes such ward depart perpendicular in down from the their course far so the vertical side lines of said sur as to extend outside ward possession their of such But face location. .to ledges veins, parts lodes or be confined of such shall outside portions planes as drawn thereof lie between vertical to such through the described end lines of as above downward pianos direction their own that such so continued location ledges.” parts exterior veins or intersect such will No. Respondent the General Thomas contended ground, Hill vein, the Chief of the runs cross- as enters planes No. 3 location within Thomas wise General through its end lines. drawn position of the and the relative claims strike respondent, will No. contended

General Thomas diagram: by reference to be understood L. Flagstaff Case, 463, 25 Ed. It was held in the 98 U. S. mining provisions 253, the location of a under these lengthwise -made in the course of vein. claim should be Nev. M. Go. 143 Go. Opinion Belknap, C. J. Court — law,” "It court, was the intent of the said the "to allow person to make his location crosswise of a vein that the so thereby it, give right lines side shall cross him the to fol- low the strike of the vein inside his That of side lines. would system sought by subvert the whole to be established the law. If he way, right does locate his claim in that his must be right property subordinated to the who those have located right on the lode. Their to follow the outside right side lines cannot be interfered with him. Iiis only the lode extends to so much of the lode as his claim If lode, crosses. he has located crosswise of the and his only claim is wide, one hundred feet that one hundred feet right is all he has a to. This we consider to be the law as to Applying locations on lodes or principles, veins.” these jury were, effect, easterly told side lines of the line, General Thomas No. claim fact its end appellant ledge beyond could not follow strike subject that line. The ownership instruction was the lines, miner on the within vein his side and could not mistaken, appellant have suggests, been to the method prosecuted which work could be within the limits of the by upraising drifting. claim either Respondent’s "(8) instruction No. was as follows: If you find from the evidence that defendant entered ledge having apex its within the exterior boundaries of plaintiff’s location, and ore extracted therefrom between the planes vertically drawn downward the end lines of location, damages said to recover merely proof such acts not be would affected that the place from which such ore was extracted could be reached continuously through going ledge ledge matter from a hav- ing apex prior within exterior boundaries of a loca- belonging proof tion In the defendant. order that such defendant, appear should avail the it must further that such passage from the defendant’s is made continu- ously and, any portion ledge; downward the of that if passage necessarily upward of such must made either or laterally along strike, plaintiff’s the then the to recover Appellant’s is not affected.” evidence was to the effect that " ” point Easterly at a on the called Crowfoot of the First So. Nev. Hormer Co. the C. oí J. Belknap,

Opinion Court — passage made in of Northern Belle could be Extension the level, and from thence ore to to the thirteenth ore argued point taken. It was that from which the ore was ledge. Respondent’s evidence facts showed but one these 3 were the Northern Belle and General Thomas No. was that they separate ledges, that united somewhere below Assuming level. that the and the thirteenth eleventh above ledges united, ledge had the fact that one could be reached so ledge point of matter from the other below in ore or point. that prove are one above union does subject upon the of Respondent’s No. 3 was instruction secretary damages. testimony of of The of measure amounting appellant and showed net defendant profits stockholders, $00,000 paid have been in dividends to its twenty- testimony superintendent and the showed that respond- from thirtieths of the ore extracted was taken nine entirely ground. testimony of these officers was ent’s $48,000, and under undisputed. the verdict was As respondent was entitled recover rule most favorable prejudiced appellant have been $58,000, could not instruction. as fol-

Appellant requested court instruct "(3) Mining You are instructed lows: is, and Company, action, in this was at defendant alleged day May, trespass, 1884, the time of the before 1st of possession owner, possession, and entitled Easterly claim, Belle the First Extension of the Northern Belle, claim; No. and the Thomas the Northern General prior located to the location each of said claims was claim, and that now of the Hill the defendant is of the Chief patents of all of said in fee United Htates owner prior May 1, and ever claims, at all and that times possession of all been now is the owner since has lodes, place ledges quartz, or rock in veins, other throughout metals, bearing gold or other and silver apexes depth, top of which lie inside surface entire vertically, boundary lines of claims extended downward said veins, all dips the ore and also such vein dip, planes extending such veins on their between direction,” claims in their own the end lines So. M. Co. v. M. Co. 145 _ Nev. Holmes Opinion Belknap, oí the C. J. Court — by inserting The court modified instruction after the " ” dip- words and also of of such vein or veins words " pass through end both lines of each of said claims.” requirement pass The the mineral veins should conceded, both end lines is erroneous. It must be Case, 67, Sup. as decided the Del Monte 171 U. S. 18 Ct. 895, right 72, 43 L. Ed. that the miner has the his follow dip lines, vein on its outside his vertical side whether the ever, course, vein reaches its end its lines or not. any issue, modification immaterial to and could have was jury. question touching right misled the No to follow possession upon depended the vein or the of ore qualification deposit pass through that -the mineral should controlling question, both end lines of a claim. The upon tried, which the ease was the General was whether upon Thomas No. 3 and the Chief of the Hill were the same ledge. not, plaintiff If were had no cause of action. 6, given request This is shown instruction No. at the appellant. entirely It is as follows: "It is immaterial what dip Belle, is the course or vein the Northern First Easterly Extension, claims, 3 and General Thomas No. unless you preponderance from a of the evidence that the believe dispute ore here in taken from the Chief of the Hill vein from the thereof.” jurors

Appellant produced the affidavits two jury agreed juror tending that each should to show that the damages separate slip paper amount of write plaintiff, of the several and that the sum he desired award comprising by 11, be divided the number estimates should the ver- jury, quotient be the amount of should filed, the conclusion we Counter affidavits were dict. unnecessary. their consideration have reached renders jurors law, could not be received At common affidavits of sup impeach verdict, admitted their but could be (Rex 2686; Delaral, 1 Term Alnun, Bur. v. port. v. Vaise 326; v. Warhurton, Turner 11; v. 4 Ros. & Pul. R. Owen 268.) Chitty, 397; Taylor, 2 Tuolumne, Davis v. Cal. Rep. Dalrymple Williams, 20 Am. 63 N. Y. In " why jurors public policy There are reasons is said: verdict, whether impeach their not be heard to should A-OL.XXVI1-10 Nev. M. v. Co. Belknap,

Opinion C. J. o£ Court — showing' Neither can their mistakes or their misconduct. declare, they properly permitted a view to affect with actually expressed verdict, from that an intent different early open In court. times their verdict as rendered jurors upon pains penalties for false ver visited why they reason should not be dicts furnished an additional 778.) (Watts Brains, Eliz. impeach v. Cro. allowed to them. established, day and at this rests But the rule well public policy with as connected well-understood reasons justice, that the court’will not receive the administration of prove part, jurymen on their the affidavits of to misconduct by them, impeach or any which could tend to or act done rule excludes affidavits to show overthrow their verdict. This merits, respect jurors in or mistake or error of the they irregularity misconduct, the effect of or that mistook something or intended different.” verdict notwithstanding adjudications to admitted, "It a few England, settled, in contrary, well both is now Tennessee, every exception perhaps in and, state with confederacy, received; such affidavit cannot be of this reasoning. and, believe, upon If were other- we correct open wise, It would the widest but few verdicts could stand. fraud, perjury, litigation, is con- door for endless justice public principles demned the clearest 1429.) Trial, (3 policy.” & on New Graham Waterman why given following the same authors reasons are "(1) jurors not be received: Because affidavits of should acts oath. they to defeat their own solemn under would tend (2) open tamper a door to Because their admission would (3) they jurymen given their verdict. Because with after had means, in the hands dissatisfied would be the any destroy time after he had assented juror, a verdict at to 1428.) (Page it.” 60, State, Yerg. 2 v. 24 Am. In a learned note Crawford reasons, says: considered 467, "These Dec. the author always policy it has been with the fact connection jurors secret, keep and to allow the deliberations of law to the fear of conclusions without jurors arrive at their own compelled to have disclosed being to disclose or afterwards based, are were upon which such conclusions the reasons So. Co. Holmes 147 v. Talbot, J., concurring. generally advanced tbe latter cases show that such affidavits should not be received.” The common-law rule has been modified statute the State of California this respect: any jurors "Whenever one or more of the shall any general have been special induced to assent to verdict finding by or to a chance, resort to the determination of may proven by such misconduct the affidavits of one (Turner jurors.” 400.) Tuolumne, or more of the v. 25 Cal. (Murphy Murphy, 142, Dakota v. South 47 N. W. 9 L. R. A. (Flood 820), McClure, 254), Idaho v. 32 aud Pac. Montana (Gordon v. Trevarthan, 13 Mont. 34 Pac. 40 Am. 452) Rep. See, also, St. have similar statutes. Grinnell v. 530; Phillips, State, 1 Mass. Farrer v. Ohio 54. St. Aside cases, contrary from Tennessee decisions can be found (Wright Co., Iowa, 195), Iowa v. Illinois & M. Tel. 539.) (Perry Bailey, one Kansas 12 Kan. Judgment and order affirmed.

Fitzgerald, I J..- dissent. J., concurring:

Talbot, specially opinion I wish to concur of the Chief Jus- important practice relating quotient tice in the matters inadmissibility jurors and verdicts of the affidavits of existing under the circumstances this case. jurors "They

The affidavits of some of the state that: all agreed jurors by writing that each one of said should ballot separate slips upon paper damages the amount of he plaintiff, that, and desired award said after said amounts balloted, and should be so written that said several amounts together, should be added and the total sum so arrived at by 11, jurors should be divided the number of constitut- ing jury, and that the amount found and so arrived at and should control fix the amount of the verdict to be plaintiff.” to and in favor awarded juror Another makes affidavit: "That while it is true jurors agreed all that each one should ballot writing upon separate slips paper damages the amount of plaintiff, he desired to award and that said after said amount should be so written and balloted said several amounts together, be added and should the total sum so arrived at So. Nev. Co. v. Holmes M. Co.

Talbot, J., concurring. by 11, jurors constituting divided jury, number of and that the amount so found and arrived at should control and fix the amount of the verdict to be awarded to and in plaintiff, that, notwithstanding agreement, favor of said and after said ballot had been so written and balloted and the together by 11, sums added and divided and this affiant jurors freely fully agree each of the said case did fully case, verdict which was rendered in said and did freely agree upon plaintiff, the amount to be awarded to said irrespective balloting, freely fully agree of said and did $48,000.” award said the sum of

Considering allowed, variation, the sum $300 is small jurors, but especially sufficient to show that the those sum, entirely who favored a lesser were not controlled or quotient likely bound induced them to find for nearest amount even thousands. The had two important issues to determine. ownership One related to the extracted, from which the ore was and under the conflicting testimony they, requisite number, or the must plaintiff; they have found in favor of and after arrived at this conclusion it became incumbent on them to determine damages the amount against which should be awarded jurors put defendant. making One of the down nothing in up quotient. If unreasonably low, this be considered defendant, was favorable to the complain. and it cannot But privilege it was his to find for the defendant under the con- flicting regarding ownership ledge. evidence A few qualification quotient cases hold without verdicts should aside, be set validity, the better authorities sustain their jurors agree unless the in advance to be bound the amount. agree not, good Whether appears so reason reject quotient juror a puts verdict if each down a sum issue, supported by evidence, within the and the which he conscientiously believes should be awarded. Some able opinions Judge Sanderson, speaking as that of for the —such court, in v. support Turner these verdicts as Tuolumne— being average damages a mean and of the amount of which jurors varying judgments the different in their natural believe should be awarded. are

Other decisions to the effect that such verdicts should So. Nev. 149 Co. v. J.,

Talbot, concurring. jurors agreed advance, be vacated if tbe so because some juror might put high extravagantly an or down low amount. practiced by. If admitted that result of such a fraud when accepted by jurors one and the other vitiate the should ver varies, dict which it when this fact or reason for such rule apply, fails the rule itself should not and in cases where such juror perpetrated, put fraud is and it is shown that a down extravagant amount, an aside; verdict be set should but vacating this would be no for reason verdicts other cases juror guilty conduct, where is of such and where the ver average an dict is different amounts which the several jurors honestly believe should be If awarded. the affidavits jurors all, only were be considered at it be would where juror designates designedly unreasonably a sum high or low, supported by or it not within or where the issue or evidence, practiced fraud or and this mistake made jurors one of and vary allowed the others to returned, quotient average and amount not an so it is which, judgment the different estimates honest respective jurors, allowed, ought be should verdict elementary principles that, set aside. It is clear on place no such conduct is taken where shown to have on the part any juror, presumed by it not be should surmised court, ground overturning and considered for the ver dict, party complaining injury and that the show and must distinction, A error. number of decisions failed to make this plainly it is and the rule drawn correct announced Lee Clute, supports 152, controls and the ver admissibility here, regardless dict affidavits of jurors. Booth, jurors In Birchard v. Wis. each of marked thought damages ought be, what he and these down up, sums were added the amount divided several agree upon verdict, as their could not result process repeated, after further was discussion agree result, were still unable when was deducting ballot, found proposed the amount the first agreed. $16, adopted verdict, should be and was so gambling verdict, The court held that such was not $2,400. It for should not be set aside such cause. Nev. So. Nev. M. Co. v. Holmes M. Co. Talbot, J., concurring. try jurors have taken an oath to the case and To allow who according a verdict to the evidence to make affidavit render duty, they compliance in have returned one not with this general rule, least, not, at commend itself as the does only encourage jurors, practice. weak best Not would prejudice, stultify acting under influence or themselves jurors, open for the their fellow but would the door and litiga- overzealous, unscrupulous prolong powerful, and adversary, regardless tion, the weaker of the merits and crush hardships controversy, justice of the and entail more and than it would avoid. Crutchley, 19 Nev. 12 Pac.

As stated State exception, an if there are extreme cases which should be admissible, them. If the affidavits this is not one of were regarding the manner in there was a conflict in them and by judge reached, finding trial was which verdict denying supporting order for a new trial will his motion Union presumed. In about two score of the states this be jurors rule that not be the common-law affidavits will recognized, impeach few their verdicts is with received enforced, exceptions modified statute. It is save when running unnecessary opinions numerous, into to cite so many upholding hundreds. Reference to the doc cases Allen, to Houk v. 11 L. R. A. trine can be found note Hayne Appeal, 73, and 14 706, in Trial and sec. New Ency. p. Pl. & Pr. 905. The rule was enforced California there, practice prevailed when the act similar to ours has coming under the amend béen since is now cases code, part ment to that document and later enacted as affidavits that the ver which makes such admissible show comparison In dict reached a resort to chance. with was principle, exceptions supporting the mass of cases this are rare.

Regardless may given reasons which substantial for the and have advanced courts and text writers been regardless rejection jurors, of the affidavits of advisability receiving them views of this court as to that the verdict not reached the manner to show it, to render the fact that such affidavits were had sworn statutory law, inadmissible under common Oat. M. Go. v. Holmes M. Co. J., concurring.

Talbot, made the rule of enactment is decision all the courts state, against strongly, conclusively, tends if this not (Comp. 3095; Clark, 1900, 17 admission. Laws sec. v. Clark 217, 124, 238; Wuest, Pac. Nev. 28 Pac. v. 17 Nev. 30 Wuest 41.) Cronan, 437, 49 But 886; v. 23 Nev. Pac. this State long ago, Stewart, 120, v. court State v. Nev. State directly Crutchley, 19 Nev. 12 Pac. that such decided ought permitted If not to received. not to intro affidavits be losing protection them, party against duce the has some an verdict, judge for excessive the tidal will set it aside and order against weight trial if he it to be the of the new believes appellate evidence, and the court will the order if make same support plaintiff’s there no evidence to it. The demand is alleged complaint $2,000,000. secretary of the during period that a certain covered defendant testified which disputed ground the the operations in the defendant realized aggregating from amounts several hundred thousand dol ores paid $60,000 dividends, and lars, and it was stated on the argument twenty-nine not denied that thirtieths of this testimony superintendent the of the the ore was shown jury have come from the vein found defendant to which apparent belonged plaintiff. amount to the It is that small, verdict for was too and too favorable allowed defendant, have and that for this reason verdict should ought application plaintiff, been aside on the set not vacated on the motion of defendant. to be jurors that affidavits For the several reasons impeach ought their verdict under the not to be received to and the exist court circumstances former decisions this discussion, ing adopted different here; jury, after and, guided quotient, if influenced than amount average an latter, appear it to be excess of does respective jurors in their of the various amounts which judgments under the evidence believed individual honest plaintiff; that if the affidavits should be awarded considered, admitted that the and were jurors could bo quotient, the exact amount was for verdict agreed it—it would to be bound jurors in advance had promulgated by rule this good verdict under still a pre- showing Clute, and no there is in Lee v. court Kennedy Kennedy. Appellant. for sumption juror put beyond amount his down an and, further, judgment; honest that after the had found belonged that the vein taken from the ore plaintiff, appears that the amount named verdict small, too favorable to too the defendant. Rehearing.

On Petition Per Curiam:

Rehearing denied.

[No. ] 1640. KENNEDY, THOMAS v. MINNIE F. Respondent,

KENNEDY, Appellant. Hearsay Evidence. may give 1. Defendant not have witness evidence conversation between being physical day, her and hearsay. as to her on a witness condition certain Rehearing.

On Newly New Trial — Discovered Evidence. suit, judgment 1. In a in which the divorce evidence on which had mainly testimony, his own defendant is entitled oil to new trial newly ground evidence; being supported discovered her motion by plaintiff’s affidavit, stating testimony ho was mistaken he gave, specifying particulars, which embrace the essential facts the case. Appeal from the District Court of Second Judicial Nevada, Curler, County; District the State Washoe 7?.F. Judge. Kennedy against Kennedy.

Action Thomas Minnie P. judgment plaintiff, appeals. From a Affirmed. for defendant reliearing, judgment reversed, petition On for and a new trial of the ease ordered. sufficiently appear opinions. facts tbe Appellant: Orr,

Noreross eft I. moved grounds Tbe defendant for a trial new newly evidence, discovered occurring error in law at tbe trial, supported evidence, decision is not tbe against that the evidence law. Tbe motion was denied. confidently Appellant believes that an examination

Case Details

Case Name: Southern Nevada Gold & Silver Mining Co. v. Holmes Mining Co.

Court Name: Nevada Supreme Court

Date Published: Oct 5, 1903

Citation: 73 P. 759

Docket Number: No. 1637.

Court Abbreviation: Nev.