The facts sufficiently appear in the opinion. This action was brought to recover damages of the defendant for refusing to permit the plaintiff to enter into the possession of a certain mining claim and work the same, and for excluding him therefrom. The plaintiff based his right to enter into possession and work said claim upon a written lease, executed to him, for an undivided one-third interest in said claim by the owners of said interest, the defendant owning an undivided two-thirds interest therein. The trial resulted in a verdict of the jury in favor of the plaintiff for $2,287 50, and a judgment accordingly. This appeal is from an order denying defendant's motion for a new trial.
The respondent moves the court to strike out each of twenty-three papers, designated by name, which are found in a package of papers certified to be the whole record on appeal. This motion is granted. These papers constitute no part of the record on appeal. The practice of gathering up all the papers and documents filed in a case in the trial court, and sending them up on appeal, mixed with or attached to the record, when they constitute no part of it, should be discontinued. The statute clearly specifies what papers shall constitute the record on appeal in every appealable case. There is no authority for withdrawing any other papers from the files of the trial court for the purposes of an appeal. A party may be subjected to unnecessary costs by filing useless papers on appeal, as the fee of the clerk of the supreme court is 30 cents for filing each paper, and for entering each order of the court $1 50.
In the notice of appeal it is recited that the defendant hereby appeals to the supreme court "from the order overruling and denying defendant's motion for a new trial in said action, which said order was made and entered on the 11th day of May, 1899." The record shows that the order denying defendant's motion for a new trial was made and entered on the 10th day of May, 1899, instead of the 11th day of said month. Respondent moves for a dismissal of the appeal upon certain grounds named. One ground is to the effect that no appeal has been taken from the order made *Page 310 and entered on the 10th day of May denying the defendant's said motion.
In Weyl v. Sonoma Valley Railroad Co.,69 Cal. 202, 10 Pac. 510, the respondent made objection to the notice of appeal for the reason that the notice did not give the correct date of the entry of the judgment and order denying a new trial from which the appeal was sought to be prosecuted. The court held, in substance, that, as the record showed that there had been but one judgment and order of the kind appealed from entered in the case, the notice was sufficient, and that the mistake of dates merely should be regarded as a clerical misprision.
In Anderson v. Goff, 72 Cal. 65, 13. Pac. 73, the judgment appealed from was rendered on the 29th day of March, 1884, and entered on the 30th day of April following. The notice of appeal referred to the judgment as having been entered on the 29th of March, 1884.Held, that the notice was sufficient.
In McAllep v. The Latona (Wash.),19 Pac. 131, the notice of appeal described the decree appealed from, which was rendered October 7th, as of October 1st. It not appearing that there was any other decree in the cause, the error as to the date was held not to be material.
It will be observed that the appeal is taken "from the order overruling and denying defendant's motion for new trial in said action." The date in the clause following, "which said order was made and entered on the 11th day of May, 1899," clearly appears to be a clerical mistake, as the record shows that the order in said case overruling the motion was made and entered on the 10th day of May, 1899. It does not appear, nor is it claimed, that there was more than one order made on the motion. We are of opinion that said notice of appeal is sufficient.
Another ground alleged for the motion to dismiss is that no undertaking was filed on an appeal from said order of May 10th. We do not think this contention is tenable. The undertaking refers to the order appealed from as "the order of said district court denying and overruling defendant's motion for a new trial, which said order was made and entered on the 11th day of May, 1899." There being but one *Page 311 order made and entered overruling and denying defendant's said motion by the district court, it is evident that the reference to the date thereof as the 11th day of May, 1899, instead of the 10th day of said month, was and is simply a clerical mistake, and does not vitiate the undertaking. We do not think that the mistake could avail the sureties as a defense in an action against them on said undertaking. (Sweeney v. Karsky, 25 Nev. 197,58 Pac. 813.)
The third ground given for the motion to dismiss is that the undertaking was executed before the notice of appeal was filed. The statute requires that, to render an appeal effectual for any purpose, a written undertaking shall be executed on the part of the appellant, by at least two sureties * * *; that such undertaking shall be filed with the clerk within five days after the notice of appeal is filed. It is true that the undertaking was executed, in one sense, before the notice of appeal was filed — that is, it was prepared and completed ready for filing before said notice was filed — and, had it been filed before said notice, it would have been nugatory. But it is not required that the undertaking shall be thus executed within five days after the notice of appeal is filed, but simply that the filing thereof shall be made within that time. The execution of the undertaking was not completed until delivered. Its delivery was effected by filing it with the clerk.
The motion to dismiss is denied.
Counsel for appellant, in his brief, points out certain portions of several instructions given to the jury, makes certain specific points of objections to the same, and contends that the court erred in giving the said instructions. But the statement of the case does not show that any of said points of objections or exceptions were stated at the trial. The alleged errors cannot be considered on appeal. (McInnis v. McGurn, 24 Nev. 370;55 Pac. 304, and cases cited.)
The defendant interposed a demurrer to plaintiff's complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the ruling is assigned as error.
We do not think said ruling was error, but that the facts alleged are sufficient.
The facts, as shown by the complaint, stated in brief, are *Page 312 that on the 13th day of June, 1896, the defendant and Irene Robinson, Eugene Howell and R. M. Clarke were the owners of a certain mining claim described therein, the defendant owning an undivided two-thirds interest, and the said Robinson, Howell, and Clarke owning among them an undivided one-third interest in said mining claim; that on said day the said owners of said one-third interest leased to the plaintiff their said interest for one year from said date upon the terms and conditions expressed in said lease; that the plaintiff on the 18th day of June exhibited said lease to the defendant, and offered to pay him any sum due from plaintiff's lessors as their proportion of the expenses incurred in the development of said mine; that defendant at said time, and at divers other times about said date, refused to give any statement of such expenses, refused to permit the plaintiff to enter into possession and work said mining claim, and excluded him therefrom; that the value of the rents, issues, and profits of said one-third interest in said mine for the said term of said lease is $3,000. It is alleged that by reason of the refusal of the defendant to let plaintiff into possession of said one-third interest in said mining claim under said lease, plaintiff was damaged in the sum of $2,500. A copy of said lease is attached to the complaint, and made a part thereof.
Counsel's first contention with respect to the facts alleged is that the writing called a "lease" is not a lease, but simply a license to plaintiff to extract and work ore at his option for the period of one year at a specified royalty on ores that he might perchance extract. The instrument in question, after giving the names of the parties thereto, respectively, as the party of the first part and the party of the second part, recites that they "do by these presents covenant and agree, and the said party of the first part hereby leases unto the said party of the second part one-third interest in and to that certain mine known as and called the `Homestake Mine,' situated," etc.; "this lease to take effect and go in force from this day, and to continue for a period of one year up to and including June 13, 1897. The provisions of this lease to be as follows: The party of the second part hereby agrees to work said mine in a workmanlike manner, and *Page 313 leave the same in as good condition as it is at this time. The said party of the second part agrees to pay to the said party of the first part or to * * *, as shall be directed by the party of the first part, royalty from all ores taken out, extracted, and shipped from said Homestake mine by the party of the second part during the continuance of this lease."
After specifying the amount of the royalty on each ton taken out, etc., it is recited, `Said royalty to be paid upon the first day of each month to the party or parties as hereinbefore named." The instrument is dated the 13th day of June, 1896, and signed by the parties thereto.
"No particular form of words is requisite to make a lease. Any words that show an intention on the part of the lessor to divest himself of the possession of the premises, and confer it upon the lessee for a term, whether long or short, is sufficient; but the lessee should sign the lease, or in some manner become bound by such covenants as it is agreed that he shall perform." (1 Wood, Landl. Ten. 206.)
"A lease is a species of contract for the possession and profits of lands and tenements, either for life, or a certain term of years, or during the pleasure of the parties." (12 Am. Eng. Enc. Law, p. 976.)
"No particular form of expression or technical words are necessary to constitute a lease, but whatever expressions explain the intention of the parties to be that one shall divest himself of the possession of his property and the other shall take it for a certain space of time are sufficient, and will amount to a lease for years as effectually as if the most proper and permanent form of words had been made use of for the purpose." (12 Am. Eng. Enc. Law, p. 977.) In reference to leases of mines Lindley says: "As to whether an instrument is or is not a lease depends upon the intent of the parties, and not upon the mere form in which it is prepared." (2 Lindl. Mines, 861.)
"Whether an instrument is a license or a lease will depend upon the manifest intent of the parties, gleaned from a consideration of its entire contents." (2 Lindl. Mines, 860.)
We are of opinion that the writing in question, from a consideration of its entire contents, clearly and legally expresses *Page 314 the parties' meaning, and shows an intention on the part of the lessors to divest themselves of the possession of the premises, and to confer it upon the lessee, the plaintiff, for the term therein named, and to obligate the lessee thereby to work said mine in a workmanlike manner during said term, and to pay the royalty monthly as therein specified. We are of opinion that said writing was a grant to the lessee of the lessor's undivided one-third interest in said mining claim for said term of one year, being their share of the whole of said mining claim or mine.
Counsel's further contention is that, whatever may be the nature of the instrument, it cannot limit or restrict the estate, rights, or possession of the defendant in his own property, and he cites several authorities to support this contention.
The answer to this is that said lease does not limit or restrict the defendant in any of his rights with respect to said mine or mining claim, his estate therein, or right of possession thereof.
The authorities cited are to the effect that it is not in the power of a tenant in common to convey the whole of the estate or the whole of a distinct portion by metes and bounds; that such conveyance is void as against the cotenants, but that the respective cotenants may convey their shares of the whole estate to one or many grantees, as they please, so the share be of the entire estate. As an illustration in one of the said cases cited, it is said: "I have a moiety. My cotenant has a moiety. He may convey a quarter of the whole estate to one, an eighth to another, a sixteenth to another, and so indefinitely, letting in other cotenants with me. But, all being seized of aliquot parts in the same estate, and of like kind and quality, my right to partition is not disturbed by the number of cotenants." (Adam v. Briggs Iron Co., 7 Cush. 368.)
The lease in question is not a lease of the whole estate, nor the whole of a distinct portion by metes and bounds, but it is a lease from the three cotenants of their undivided one-third interest, being their share of the whole mining claim.
Counsel contends, as we understand, that if the defendant had excluded Howell, et al., from the mine as he did the *Page 315 plaintiff, they could not have sued for damages, but would have been confined to an action for partition of the common property, or an accounting of the rents and profits received by the defendant from third parties; and that, plaintiff having no greater rights than his lessors, he is confined to said remedies.
In Carpentier v. Webster, 27 Cal. 550, the court say: "Partition would afford no redress for the dispossession, whether total or partial. In the first place, the tenant expelled might not desire a partition, and it is possible that a partition would be equally unwelcome to the cotenant who expelled him. In the second place, partition does not lie between tenants in common at common law (2 Bl. Comm. 182, 191), and we are now treating the subject on common-law conditions only. And, in the third place, partition in equity is not for the purposes of redress for ouster, nor for any description of wrongs previously committed, but for the sole purpose of terminating the common tenancy. By the common law the ejected tenant was not only entitled to be restored to his moiety, but to damages also. (1 Coke, Litt., vol. 1, p. 906.) In chancery in partition cases there is no account taken of damages, but of mesne profits only. (1 Story, Eq. 466.)"
"In case of lodes and veins, it would seem impossible to effect a fair, actual division. It is a matter of common knowledge that the metallic substances occurring in veins are not distributed uniformly, either as to quantity or quality. They are found in `shoots' or vuggs, kidneys, and other irregular bodies, making it impracticable to segregate the interests without great injury to the owners." (2 Lindl. Mines, 792.)
"It has been said that the only partition that can be made of this class of property is to order a sale, and divide the proceeds." (2 Lindl. Mines, 792.)
A sale in most instances would doubtless be equally as injurious to the owners as partition of the property, if not more so, on account of the scarcity of bidders and the smallness of the amount bid.
Partition being impracticable in most cases, and affording no redress for damages sustained by a cotenant by reason of *Page 316 being ejected or excluded from the common property, if an accounting for the rents and profits received from third parties by a cotenant who did the ousting is the only remedy left the ousted cotenant for such redress, then a tenant in common, if he so elect, whether his moiety be great or small, may exclude all of his cotenants, to their great damage, from a mine, let the mine lie idle, or only work it himself, and incur no liability to his cotenants; for whether he let the mine remain idle, or only worked it himself, there would be no rents or profits to be received from third parties, and thus he may appropriate the whole profits, however great, to his own use.
There is no rule of law which grants a tenant in common such rights or privileges against a cotenant whom he ousts. The authorities are to the contrary. (Gage v.Gage (N. H.), 28 L.R.A. 829, note a.)
"If A disseize his cotenant, B, it is no defense in an action against him to recover rents and profits that in fact he has received or realized nothing from the lands during the dispossession, and B may recover what the rents and profits are worth, without regard to the inquiry as to whether A in fact collected rents or received profits." (Sears v.Sellew, 28 Iowa, 501.)
The said lessors, as tenants in common with the defendant, might have lawfully entered and worked said mine themselves if the lease had not been made.
"There can be no doubt that one, as a tenant in common, may authorize another to do what he himself could do with the common property." (Alford v. Bradeen,1 Nev. 228.)
It is denied by the answer that the defendant refused to permit the plaintiff to enter into the possession of said mining claim and to work the same; denied that he excluded the plaintiff therefrom; denied that he refused to give to the plaintiff a statement of the expenses of the development of said claim; denied that the plaintiff offered to pay the defendant any amount due from his said lessors, or either of them, for their proportion of said expenses; denied that the value of the rents and profits of said one-third interest was any sum of money whatever; and denied that plaintiff was damaged in any sum by reason of defendant's refusal to let *Page 317 plaintiff into the possession of said one-third interest under said lease, or for excluding him therefrom. But, in our opinion, there was sufficient evidence to support a finding of the jury in favor of the plaintiff on each of the above controverted points.
There was evidence to the effect that the plaintiff repeatedly requested of the defendant to be let into the possession of the mine, to work the same, and that defendant refused every request; that defendant threatened the plaintiff with personal violence if he entered and mined the ore; that he refused to permit the plaintiff to work on ore then accessible in the drifts, and on which no work was being done by any one; that the plaintiff requested that he be permitted to sink a shaft from the surface to the bodies of ore on their dip, below, outside, and away from the level on which defendant was working, and that he might extract the ore therefrom, and that defendant refused to permit him to do so; that there was no way of reaching the ore bodies then developed except through a tunnel from the surface and connecting incline; that the defendant locked the door that was at and in the mouth of the tunnel every night after the plaintiff got his lease, and that he threatened to scatter the plaintiff's brains if he entered there; that the defendant applied to the plaintiff insulting language and opprobrious epithets, and that the plaintiff did not enter and work the mine for fear that one or the other of them might get killed if he did so. The evidence was certainly sufficient to support a finding of the jury of an ouster of the plaintiff by defendant.
There was evidence sufficient to support a finding that the plaintiff offered to pay the defendant the lessor's proportion of all expense incurred by the defendant in any developments of the mine that he may have made. There was evidence, also, tending to show that the defendant had been fully reimbursed for all such expenses by the proceeds of ores extracted by the defendant from said mine. It appears that all of the work in developing the mine in that part where the defendant was working and from which the plaintiff was excluded as aforesaid was done by lessees of the mine, and that all the bodies of ore found there were found by such lessees. *Page 318
It appears that the first lease was given by Eugene Howell for a term commencing on the 14th day of January, 1894, and ending on the 14th day of January, 1895 (Record, folio 137); that the lessees worked eleven months under ground (folio 129); that they had ten or eleven men at work from January to November, 1894, and then three men (folio 122); that then a lease was given from January to August, 1895 (folio 120); that on this lease three men worked up to July and five men during that month (folio 122); that during the term of this latter lease the lessees discovered and developed the ore body that defendant was working on when plaintiff was refused possession; and that all the work defendant did afterwards was on that body of ore (folio 126). If there be any rule of law relating to the rights of tenants in common with respect to the common property that would justify the defendant in excluding the plaintiff from entering into possession and working said mine, it has not been cited, and we know of no such rule.
The contention of appellant that the damages awarded by the jury are excessive and vindictive, and wholly without evidence to support them, is the only remaining contention that we regard requires special consideration in this opinion. Counsel asserts "that there was no proof of the amount of ore that Paul would have mined, the number of tons that he could have removed, the number of men that he would have employed or could have employed profitably, the cost of removal at that time, the value of the ore then known to exist, or the profit per ton or in gross."
There was evidence to the effect that the plaintiff was a practical miner of many years' experience in practical mining; that mining was his business; that at the time he took his lease the mine was in such condition, and such bodies of ore had been and were then exposed in the underground workings by other lessees, as to make it reasonably certain that a large amount of ore could be extracted therefrom; that it appeared to be reasonably certain from the extent of these ore bodies in said workings and their dip that they continued downward out and beyond where the defendant was working, and could be tapped by a perpendicular shaft if sunk forty or fifty feet deep from the surface; that the plaintiff *Page 319 intended and proposed to sink such a shaft, and work the said ore bodies below the level on which the defendant was working, and raise the ore through the shaft; that other practical miners secured a lease on the ____ day of June, 1897, on said mine for the term of one year, sunk a shaft fifty-two feet deep at the place where the plaintiff intended to sink one, struck the said ore bodies, and mined therefrom 1,150 tons of ore during the term of their lease, with five men working four or five months and six men working the balance of said term. Besides, they took out 65 tons from the level above, or 1,215 tons in the aggregate.
From the above facts the jury might reasonably have found that there was reasonable probability that the plaintiff could and would have mined from 1,000 to 1,200 tons of ore during the term of his lease if he had been permitted to work as he proposed and intended to do.
It appears that the ores of the mine were valuable only for the lead and silver they contained; that 66 per cent was lead, and that there were twelve or thirteen ounces of silver per ton of ore; that on the market price of lead depended mainly the value of the ore; that the plaintiff could have sold all the ore he could have mined in 1896 at the rate of $3 30 per 100 pounds of lead contained therein.
It was agreed between the parties at the trial that when the market price of lead was $3 30 the ore was worth $18 34 per ton over and above cost of shipping to market, less the expense of mining and sacking the ore; that it required fourteen sacks to sack a ton of ore, and that the sacks cost 7 cents apiece, and miner's wages were $3 per day.
If the lessees in 1897 prosecuted the work every day, the wages of their men would be $6,030. If it required sufficient sacks to sack all the ore before any shipments were made, their cost would be $1,190. It appears from the evidence that two men could sack ten tons per day. Their wages for sacking 1,215 tons would be $732. These three items of costs of mining and sacking of 1,215 tons are figured at the highest possible cost that could have been incurred according to the evidence. It is not probable that the men worked every day in the year, or that it was necessary to have on hand so great a number of sacks to sack the ore. But, taking these items *Page 320 as the necessary costs of extracting and sacking the 1,215 tons of ore from $22,283, the gross yield at $18 34 per ton, and a profit of $14,331 is shown.
We think the evidence would have justified the jury in finding that the plaintiff, as a practical miner of long experience in mining, whose business was that of mining, could, and would, probably, have extracted such quantities of ore from said ore bodies during his said term, if the defendant had not excluded him therefrom, and sold the same at such market price then existing as would have yielded him a net profit even greater than the sum allowed him for damages. The only value a mine has to a lessee thereof is the profits arising from his working the same, and, when he is wrongfully excluded and prevented from such working, his loss consists in the loss of profits that he would have made but for such exclusion.
"The adjudged cases very clearly show that in actions to recover for damages resulting from a tort a more liberal rule in favor of the plaintiff prevails than in actions to recover for a loss sustained from a breach of contract. Yet in the latter class of cases the overwhelming weight of authority supports the doctrine that profits, when not entirely speculative, may be taken into account (112 Ind. 555, supra); and it is only required that they be ascertained with a reasonable degree of certainty (Chapman v. Kirby, 49 Ill. 211).
"It is not to be forgotten that the law does not require absolute certainty in any case. * * * In a civil case all that is deemed requisite is a fair and reasonable degree of probability. Lord Mansfield says `that the only degree of certainty attainable in judicial proceedings is a probable one,' and this is the doctrine of logic as well as of law writers. It is, indeed, impossible to secure any higher degree of certainty in human affairs, although there may be degrees of probability. All that can be required in any case or upon any subject is that the evidence shall tend, with a fair degree of probability, to establish a basis for a relevant inference." (City of Terre Haute v.Hudnut, 112 Ind. 557.)
"A tenant in common, when ousted by his cotenant, may recover damages resulting from the ouster, as well as when *Page 321 ousted by an entire stranger to the land." (Carpentier v. Mitchell, 29 Cal. 330, and cases cited.)
The order appealed from is affirmed.
MASSEY, J.: I concur.