By the Court,
Talbot, J.:
This action was brought to recover $7,000 damages for the extraction of ores by the individual defendants within the exterior lines, extended downward vertically, of the Table
Mountain mine, upon a part of which they held a lease from the owner, the Royal Mining Company, and for an injunction restraining them from further working upon the ledge which plaintiff claims has its apex in the Canyon mining claim owned by him. The ease was tried with a jury, and a verdict rendered in favor of the defendants. This appeal is upon an order granting a new trial on the ground that the verdict is not in accordance with the evidence. In the decision on the motion for a new trial the district judge states:
"The evidence further shows, without a substantial conflict, that a lode or vein exists in said Canyon mining claim, which extends from a point about 300 feet north of the southerly end line of said claim, northerly in its course from said point about 1,000 feet, and passes through the north end line of the said Canyon mining claim; and that the apex of said lode at the surface, for the distance of about a thousand feet, is within the exterior boundary lines of said Canyon mining claim described in the complaint. The evidence shows that the ore in dispute was extracted by Murphy and Beyers from a point within the exterior lines of the Table Mountain mining claim, extended downward vertically, and being that portion of the claim held by them under a lease. The evidence further shows that some time, within a few years, prior to the taking of the lease by Murphy and Beyers from the Table Mountain Mining Company, they had a lease from the plaintiff and his predecessors in interest of the Canyon mining claim, and extracted ore from a stope within a few feet of a point where the ore in dispute was extracted. The evidence further shows, without conflict, that communication in ore in place has been made from the point where the ore in dispute was extracted and the stopes worked by Murphy and Beyers under the lease of the Canyon mining claim.
"The testimony further shows, without any conflict, that the ledge upon the Canyon claim can be traced upon the surface from the point where it crosses the side line of the Canyon claim about 300 feet north of the southerly end line of said claim through said mining claim northerly in its course from said point about 1,000 feet, where it passes through the north end line of said mining claim. Themvi
dence shows, without any conflict, the matter having been testified to by practically all of the plaintiff's witnesses and a great number of the defendants' witnesses, that the ore body from where it apexes on the surface of the Canyon mining claim can be followed in drifts, tunnels, and inclines clear to the point where the ore in dispute was taken out, and that three different routes can be followed, all in ore, from the surface of the Canyon claim to the point where the ore in dispute was taken out. The evidence shows conclusively the continuity of the vein in the Canyon ground from the apex on the surface to the point where the ore was extracted by the defendants Murphy and Beyers. This proposition was practically admitted by the defendants and their witnesses upon the trial of the case.
"The defenses made by the defendants in this action were three in number, and, in the judgment of the court, absolutely antagonistical one to the other. One contention was that, running in a northerly direction, there existed a lode, the apex of which was wider than both claims. Another defense was that the vein testified to by the plaintiff's witnesses as existing within the lines of the Canyon claim split at a point near the northerly end line of the Canyon claim, a portion of the vein passing on through the northerly end line of the Canyon claim, the other passing through the side line of the Canyon claim into and across the Table Mountain claim, and that the ore in dispute was extracted from that portion of the split vein after it passed the side line of the Canyon claim into the Table Mountain claim. The other defense was that the strike of the vein was across the Table Mountain and Canyon ground. Witnesses of defendants testified in support of each one of these theories. * * *
"It is undoubtedly true that the surface of that portion of the Canyon mining claim on the slope of the hill below the apex of the Canyon vein, and the surface of the Table Mountain claim which is lower than the Canyon claim, contain more or less mineral. It may be, and probably is, such ground as would sustain a mineral location, but that is not the question that was to have been determined by the jury in this case. The question to be determined by the jury was as to whether the ore in dispute was in a vein whose apex
was within the Canyon claim or the Table Mountain claim, and the determination of that question, if it ever entered into the deliberation of the jury, was contrary to the great weight and preponderance of the evidence. * * * A careful inspection of that winze by the court, with the jury, convinced the court that no ledge or seam was followed by that winze continuously to the point from which the ore was taken, and that no seam exists, the top of which is in the Table Mountain claim, which continues to the ore body in question. The country passed through seems to be, as the court has before said, a mass of country rock, porphyry, which had been disintegrated, and 'small fissures formed in width from the thickness of a thin knife blade to two or three inches, these fissures being filled with gypsum and ore from that sloughed off from the Canyon vein.
"The burden rested in the first instance upon the plaintiff to establish the existence of a vein whose top or apex was in the Canyon claim, and to demonstrate that that vein continued on its dip to the point from which the ore was taken out. That proposition, in the judgment of the court, was, by the workings of the plaintiff, absolutely and conclusively demonstrated; and not only was the continuity of the ore body established by the different workings of the plaintiff, but in numerous places that which was undoubtedly the hanging and footwall of the vein was exposed. The fact that, back of the hanging wall in this disintegrated mass of country rock, small seams or fissures could be found containing gypsum and ore, does not destroy the integrity and continuity of plaintiff’s vein. In the neighborhood of every large vein, particularly where much erosion has taken place, small seams and fissures of gypsum and quartz containing ore must necessarily exist, for if by disintegration crevices are formed, and the vein and ore body is sloughed off, by the processes of nature these crevices will be filled with the gangue of the vein, containing more or less mineral.”
On behalf of appellants it is urged that the order granting a new trial is error, because an invasion of the province of the jury, even if the evidence is conflicting; that the court was unwarranted in considering its own views gained from an inspection of the premises; and that under the testimony
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By the Court,
Talbot, J.:
This action was brought to recover $7,000 damages for the extraction of ores by the individual defendants within the exterior lines, extended downward vertically, of the Table
Mountain mine, upon a part of which they held a lease from the owner, the Royal Mining Company, and for an injunction restraining them from further working upon the ledge which plaintiff claims has its apex in the Canyon mining claim owned by him. The ease was tried with a jury, and a verdict rendered in favor of the defendants. This appeal is upon an order granting a new trial on the ground that the verdict is not in accordance with the evidence. In the decision on the motion for a new trial the district judge states:
"The evidence further shows, without a substantial conflict, that a lode or vein exists in said Canyon mining claim, which extends from a point about 300 feet north of the southerly end line of said claim, northerly in its course from said point about 1,000 feet, and passes through the north end line of the said Canyon mining claim; and that the apex of said lode at the surface, for the distance of about a thousand feet, is within the exterior boundary lines of said Canyon mining claim described in the complaint. The evidence shows that the ore in dispute was extracted by Murphy and Beyers from a point within the exterior lines of the Table Mountain mining claim, extended downward vertically, and being that portion of the claim held by them under a lease. The evidence further shows that some time, within a few years, prior to the taking of the lease by Murphy and Beyers from the Table Mountain Mining Company, they had a lease from the plaintiff and his predecessors in interest of the Canyon mining claim, and extracted ore from a stope within a few feet of a point where the ore in dispute was extracted. The evidence further shows, without conflict, that communication in ore in place has been made from the point where the ore in dispute was extracted and the stopes worked by Murphy and Beyers under the lease of the Canyon mining claim.
"The testimony further shows, without any conflict, that the ledge upon the Canyon claim can be traced upon the surface from the point where it crosses the side line of the Canyon claim about 300 feet north of the southerly end line of said claim through said mining claim northerly in its course from said point about 1,000 feet, where it passes through the north end line of said mining claim. Themvi
dence shows, without any conflict, the matter having been testified to by practically all of the plaintiff's witnesses and a great number of the defendants' witnesses, that the ore body from where it apexes on the surface of the Canyon mining claim can be followed in drifts, tunnels, and inclines clear to the point where the ore in dispute was taken out, and that three different routes can be followed, all in ore, from the surface of the Canyon claim to the point where the ore in dispute was taken out. The evidence shows conclusively the continuity of the vein in the Canyon ground from the apex on the surface to the point where the ore was extracted by the defendants Murphy and Beyers. This proposition was practically admitted by the defendants and their witnesses upon the trial of the case.
"The defenses made by the defendants in this action were three in number, and, in the judgment of the court, absolutely antagonistical one to the other. One contention was that, running in a northerly direction, there existed a lode, the apex of which was wider than both claims. Another defense was that the vein testified to by the plaintiff's witnesses as existing within the lines of the Canyon claim split at a point near the northerly end line of the Canyon claim, a portion of the vein passing on through the northerly end line of the Canyon claim, the other passing through the side line of the Canyon claim into and across the Table Mountain claim, and that the ore in dispute was extracted from that portion of the split vein after it passed the side line of the Canyon claim into the Table Mountain claim. The other defense was that the strike of the vein was across the Table Mountain and Canyon ground. Witnesses of defendants testified in support of each one of these theories. * * *
"It is undoubtedly true that the surface of that portion of the Canyon mining claim on the slope of the hill below the apex of the Canyon vein, and the surface of the Table Mountain claim which is lower than the Canyon claim, contain more or less mineral. It may be, and probably is, such ground as would sustain a mineral location, but that is not the question that was to have been determined by the jury in this case. The question to be determined by the jury was as to whether the ore in dispute was in a vein whose apex
was within the Canyon claim or the Table Mountain claim, and the determination of that question, if it ever entered into the deliberation of the jury, was contrary to the great weight and preponderance of the evidence. * * * A careful inspection of that winze by the court, with the jury, convinced the court that no ledge or seam was followed by that winze continuously to the point from which the ore was taken, and that no seam exists, the top of which is in the Table Mountain claim, which continues to the ore body in question. The country passed through seems to be, as the court has before said, a mass of country rock, porphyry, which had been disintegrated, and 'small fissures formed in width from the thickness of a thin knife blade to two or three inches, these fissures being filled with gypsum and ore from that sloughed off from the Canyon vein.
"The burden rested in the first instance upon the plaintiff to establish the existence of a vein whose top or apex was in the Canyon claim, and to demonstrate that that vein continued on its dip to the point from which the ore was taken out. That proposition, in the judgment of the court, was, by the workings of the plaintiff, absolutely and conclusively demonstrated; and not only was the continuity of the ore body established by the different workings of the plaintiff, but in numerous places that which was undoubtedly the hanging and footwall of the vein was exposed. The fact that, back of the hanging wall in this disintegrated mass of country rock, small seams or fissures could be found containing gypsum and ore, does not destroy the integrity and continuity of plaintiff’s vein. In the neighborhood of every large vein, particularly where much erosion has taken place, small seams and fissures of gypsum and quartz containing ore must necessarily exist, for if by disintegration crevices are formed, and the vein and ore body is sloughed off, by the processes of nature these crevices will be filled with the gangue of the vein, containing more or less mineral.”
On behalf of appellants it is urged that the order granting a new trial is error, because an invasion of the province of the jury, even if the evidence is conflicting; that the court was unwarranted in considering its own views gained from an inspection of the premises; and that under the testimony
of the witnesses of the plaintiff, as well as of those for the defendants, the mass above the point of extraction of the ore in dispute contained seams of ore and impregnations of mineral sufficient to make it loeatable, and that therefore the owners of the Table Mountain are entitled to all ore within the boundaries of the claim, extended downward vertically. Several experts of long experience, and practical miners, testified for the plaintiff that the ore was taken from a place under the surface of the Table Mountain mine in a vein with well-defined walls which apexed on the Canyon claim. Others, for the defendants, testified that the ledge was wider than both claims, and in different ways contradicted the theory advanced for the plaintiff; and, if they agreed that the formation above the place of extraction contained small pieces of quartz and mineralized seams, they still disagreed regarding the important and controlling fact as to whether the ore was taken from a vein existing between defined walls apexing on the Canyon. If small pieces of quartz, narrow seams, and little pockets of ore embodied in porphyry be deemed sufficient to sustain a location, we do not understand that they give the owner any greater rights against veins apexing on other claims dipping under this ground than he would have if his location were based upon a substantial and well-defined ledge. In either ease he would be entitled to all veins which apexed within the boundaries of his claim, and in neither would he have any right to those existing between walls apexing in the locations of other claimants, on the theory applied to blanket ledges, and also prevailing in regard to others under the Civil Law. It is not difficult to discern between that which is essential to a valid location and the rights which it bears, and, if the witnesses substantially agree as to the former, they materially differ regarding the latter, which was essential, and was properly considered by the trial judge. We have quoted enough to show that his order may be considered as having been placed upon the two grounds that the verdict was contrary to the weight of the evidence and to his own observations in these mines. The former of these being sufficient to sustain the order, we need not determine regarding the latter.
It was held in
Worthing
v.
Cutts,
8 Nev. 121, that, when a
new trial is granted in the lower court upon the ground that the verdict is not warranted by the evidence, the rule invariably governing the appellate tribunal is not to disturb the action of the judge below if there is a material conflict in the evidence. In
Treadway
v.
Wilder,
9 Nev. 70, this court stated: " It must be borne in mind that the
nisi prius
courts, in reviewing the verdicts of juries, are not subject to the rules that govern appellate courts. They may weigh the evidence, and, if they think injustice has been done, grant a new trial, where appellate courts should not or could not interfere. The question under consideration has been so often presented that opinions have become stereotyped. Nothing heed be added to, or taken from, the rule, so well established, often declared, aud always followed.” The numerous eases in this state and California cited in respondent’s brief, and Hayne on New Trial and Appeal, sec. 97, and Hilliard on New Trials, p. 488, are to the same effect.
The order of the district court granting a new trial is affirmed, with costs in favor of respondent.
Belknap, O. J., and Fitzgerald, J., concur.