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"the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case." Close v. Samm, 27 Iowa, 508; Wright v. Carpenter, 49 Cal. 609. If the model is intended to establish any independent fact, and is introduced in evidence and used in the court below for that purpose, provision should be made to have it brought before the appellate court. In the present case the model, was not intended to establish any fact, and was not used for any such purpose. If the maps and diagrams had been offered in evidence, they should have been embodied in the statement on appeal; but the fact is that they, like the model, were only used for the purpose of illustrating the testimony of the witnesses, and as they were not intended to establish any fact in the case it was unnecessary to offer them in evidence. In People v. Cochran the court said:
"A diagram is not a public nor private writing, nor is it made by law primary or secondary or prima facie evidence of any fact or object represented by it. When used in the trial of a case it is not used as evidence; it does not prove nor tend to prove, in the sense of evidence, any fact; it is simply a figure drawn to suggest to the minds of the jurors the relation between objects about which a witness is testifying, and may be drawn on paper or on a stationary blackboard, which cannot be removed. The very construction of the figure itself is defined by the testimony of the witness, and as illustratory of his testimony; it partakes of it in the same way that the clearness of the expression of the witness partakes of his evidence." 61 Cal. 552.
The statement recites the fact that "the defendant offered in evidence, for the purpose of showing its good faith in its entry and removal of the ore in controversy, patents from the United States to the Victoria and St. George mining claims, which patents were issued by the government of the United States to the defendant before the ore in controversy was taken out, and were upon the same ledge and lode as the Uncle Sam claim, and covered the ground from which the ore in controversy was taken;" that the "plaintiff introduced in evidence notices of location of Uncle Sam, Albion, Nos. 1, 2, 3, and Albion Consolidated, and introduced mesne conveyances to show it was vested with the title of the original locators of said mining claims.' The plaintiff also offered in evidence the judgment roll in Rose v. Richmond Min. Co. of Nevada. This judgment roll does not contain the original judgment of the district court, which was reversed by this court, upon appeal.
Appellant argues that because the patents, the notices of location and mesne conveyances, and the reversed judgment were not set out in full, the statement does not contain all the evidence. This position is purely technical and without merit. The omissions complained of are wholly immaterial. It was unnecessary to incumber the statement by copying the language of the patents, even if they had been offered to prove title, unless there was an objection made to their
being admitted in evidence, which required an inspection of their contents. No objection was made to the notices of location or mesne conveyances. The substance of the documents, as recited in the statement, is all that was necessary to be inserted in the record on appeal. "Instead of copying into a statement for a new trial, or on an appeal, deeds and transcripts of records, when no point is made on the construction of the language, a brief statement of the instrument answers every purpose." Knowles v. Inches, 12 Cal. 214. The judgment of the district court, which was omitted from the judgment roll, had been reversed by this court, and was without force or effect, and if had been included would not have added anything of value to the statement.
3. Appellant argues that the evidence is insufficient to justify any verdict in favor of respondent in this: that the statement fails to show any title in respondent to the mining ground at the time of the alleged trespass. This position cannot be maintained upon any sensible view of the evidence contained in the statement. The question of title was in issue under the averments in the complaint and answer; but when the cause was tried there was no controversy as to the ownership of the ground. The question had been settled by the decision of this court in Rose v. Richmond Min. Co. True, the decision of the supreme court of the United States had not been rendered at the time of the trial of this case. The pendency of that appeal might have been sufficient cause for a continuance of this case; but until that decision was rendered it was certainly the duty of the district court to follow the decision of this court. The St. George and Victoria patents having been declared absolutely null and void, would not have furnished any muniment of title in favor of appellant, even if they had been offered or considered in evidence for that purpose.
In the statement of the facts presented by the record on appeal in Rose v. Richmond Min. Co., it was stated by this court, in its opinion, "that at the time of the trial of this action the Albion Consolidated Mining Company was the owner of the Uncle Sam claim, and this action is prosecuted for its benefit by the consent of the plaintiffs." But the question did not depend alone upon the title as settled in that case. The statement, independent of the judgment roll in Rose v. Richmond, affirmatively shows that respondent was the owner of the mining ground during the time of the alleged trespass. Respondent introduced in evidence the notices of location and mesne conveyances, hereinbefore mentioned, "to show it was vested with the title of the original locators of said mining claims." At what time was respondent vested with the title to this property? There is but one answer to this question. The issue as raised by the pleadings related to the ownership of the ground at the time of the alleged trespass, to-wit, between the twenty-ninth day of December, 1879, and the twenty-seventh of May, 1882. The evidence offered, not having been objected to, must be considered as relevant and material to the issues presented by the pleadings. The statement that the locations and
conveyances were introduced to show that respondent was vested with the title, has reference to the period of time mentioned in the pleadings. The case was tried upon the theory that respondent was the real owner of the ground. The court so instructed the jury in explicit terms:
"You are instructed that the documentary evidence produced by plaintifi is sufficient, and does establish its ownership of the mining premises described in the complaint, lying westerly of the line A C, and you are instructed to consider the plaintiff is such owner, so far as this trial is concerned, and was such owner at all times between the twenty-ninth day of December, 1879, and the twenty-seventh day of May, 1882."
If the notices and conveyances offered were considered insufficient for the purpose of showing title at this time, objections should, and doubtless would, have been made in the court below. In the absence of any objection to their sufficiency it was, as before stated, unnecessary to copy the entire documents. "It is seldom necessary to insert an entire deed in a statement. When a conveyance is regular, and no question is made on it, it is sufficient to say in the statement that a deed of such a date, conveying the land from A. to B., was introduced, or that conveyances were introduced showing that the title of A. had become vested in B." Kimball v. Semple, 31 Cal. 664.
4. Did the court err in granting a new trial upon the ground of insufficiency of the evidence to justify the verdict? There was a decided conflict of evidence both as to the quantity and value of the ore extracted and removed by appellant. The jury were primarily the judges of the credibility and weight of the testimony of the respective witnesses. The district judge, however, "has jurisdiction, on motion for a new trial, to decide, as a question of fact, whether the scale of evidence which leans against the verdict very strongly predominates," (Phillpotts v. Blasdel, 8 Nev. 76;) and if there is, in his opinion, a 'clear preponderance of evidence against it," he “should not hesitate to set aside the verdict." (State v. Yellow Jacket Silver Min. Co., 5 Nev. 422;) but in the exercise of this power he "should be careful not to invade the legitimate province of the jury, when they have manifested a fair and intelligent consideration of the evidence submitted to them." Solen v. Virginia & T. R. Co., 13 Nev. 135. The district court "ought not to grant a new trial when there is conflicting evidence, except the weight of evidence clearly preponderates against the verdict." If the district court grants a new trial upon this ground, "the appellate court will not interfere unless the weight of evidence clearly preponderates against the ruling of the district court." Treadway v. Wilder, 9 Nev. 70.
With these well-settled principles we will proceed to review such portions of the evidence as is deemed necessary for a determination of the question under consideration. It is admitted that the ore
does not work as high as the assays; that the assay value of the ore is not the true value; that silver is assayed "at the rate of $1.29
29-100, an arbitrary standard, although the actual value of silver is very much below that." The answer denies the quantity and value of the ore as alleged in the complaint; but admits that the defendant dug down, mined, and removed from the mining ground 2,100 tons of ore of the value of $4 dollars per ton, and that said mining claim was thereby damaged in the sum of $8,400, and that other damage was committed, as alleged in the complaint, to the extent of $500. The ore was taken from different places in the mine, designated by the witnesses as ore body "B," "South-east Upraise," "Fire Drift, "Gooseneck," "Fort Probert," "Leadville," and "Jumbo Cave;" the greatest quantity being taken from ore body "B." "All the ore taken out by the Richmond Company," says the witness Wescoatt, "was between December, 1879, and December, 1881, except Jumbo Cave. The ore was taken from Jumbo Cave in the summer or fall of 1882." There is a variance in the testimony of the respective witnesses as to the proportion of waste to be deducted from the amount extracted. For the purposes of this opinion, we shall adopt, without discussion, the evidence as offered by appellant, that from the gross amount there should be deducted one-third for waste, and 14 per cent. for moisture.
Ore Body B. Testimony upon the part of respondent: E. N. Robinson, who is a civil and mining engineer and surveyor, and was superintendent of respondent's mine, testified that there had been 6,069 tons of ore taken out by the Richmond Company, of the value of $60 per ton gold and silver, and 26 per cent. lead. N. Wescoatt, who is a civil and mining engineer and surveyor, and who was in the employ of the Richmond Company from 1877 to 1882, and was assistant superintendent of the mine during the last three years of his employment, testified that he was "very familiar with the ore taken from ore body B. * * I think it would average from fifty to fiftyfive dollars in gold and silver, and a considerable percentage in lead." Thomas J. Reed, a civil engineer and superintendent of mines, estimates the value at from fifty to sixty dollars per ton. J. N. Williams, who had been a foreman in the mine of the Albion Company, and was well acquainted with the character of this ore, testified that from his experience as a miner the ore taken out "would average $50 per ton; it was a good grade of ore." Other testimony was offered tending to show that the value of this ore was from fifty to sixty dollars per ton.
Testimony upon the part of appellant: R. Rickard, who was the superintendent of the Richmond Company when the ore was extracted and removed, testified that he had "a good idea of the quality of all the ore taken out by the Richmond Company west of the A C line. I think it would assay in gold and silver about $35 or $40 per ton; that is, the ore taken from ore body B;" that "the grade of Richmond ores smelted was about $50 on an average. We have lots of ore from the Richmond mine of a higher grade than ore body B;" that "the average assay of the ore from the Richmond mine is from $45 to $55 per ton.
Ore bodies vary considerably; generally lower grade near the edges. I think $35 to $40 a fair average; that "the profit on $35 ore was $2.98 per ton, and the average of $35 and $40 ore was $5.12 per ton. I made a mistake; it is $3.61 per ton. He then made the following
"Take 100 tons of ore of the value of $35 per ton, $23 silver and $12 gold, contains 1,778 ounces of silver and 58 ounces of gold, and 25 tons of lead; after deducting smelting losses leaves 1,635 76-100 ounces of silver, 51 4-100 ounces of gold, and 21 25-100 tons of lead. Value of the lead at New York prices, $1,749.93; silver, $1,713.05; gold, $1,112.58; total, $4,475.56; further deductions, freight, $30.57 per ton to San Francisco on the total weight, separating, $35 per ton, equals $65.57 per ton; deductions, $1,336.93, and commissions, $44.75; total, $1,438.11. Total value net crude bullion, $3,037.45, or $30.37 per ton; mining and smelting, $24.94 per ton; deduct from the net yield, leaves $5.43 per ton net profit on $35 ore."
Upon his cross-examination he testified that the market value of $50 ore would be $24.85 per ton; of $55 ore it would be $28.72; and of $60 ore it would be $32.20. Upon his redirect examination he testified as follows:
"I stated yesterday that the market value of ore that assayed $50 per ton was $24.98; 27 per cent. lead, deductions for mining and transporting $9.36, leaves $15.62, which is the market value of $50 ore. Forty dollars ore, with the deductions, $8.53 per ton, and $35 per ton ore, with the deductions, would leave $5.05 per ton as the market value."
In relation to the amount of ore taken out he testified as follows:
"I have heard the testimony in relation to the sets of timber in ore body B. I have heard it stated that there were 272 sets of timbers taken out by the Richmond Company. As I calculate it, 15 cubic feet of ore to the ton, there would be in ore body B 3,427 tons. After deducting one-third for waste there would be 2,285 tons; after deducting 14 per cent. for moisture, there would be 1,965 tons; there would be a still further reduction if all the sets were not full sets."
Testimony was offered by appellant to show that the sets of timber in ore body B were not full sets, and it is claimed that a still further reduction of the number of tons testified to by Mr. Rickard should be made upon this account. The numbers of the timber sets were taken from the testimony of Mr. Wescoatt, who testified that while in the employ of the Richmond Company he "went into that portion of the mine whenever it was necessary to survey for the sets of timbers. I went into the mine once or twice a month and made a record of all the sets I could find. I had charge of the underground workings." Appellant introduced a letter from Mr. Wescoatt, written on the eighteenth of January, 1885, in reply to a letter from Mr. Rickard, in which he stated that in the summer of 1882 he spent several months compiling maps for the geological survey of the Eureka district, and that during this time he made a horizontal sectional map "showing all the timber sets that had been put in the Richmond ground" between certain points, and that "this map showed