The defendant petitions for a rehearing, and suggests that the court overlooked certain points involved in the appeal. We considered all such points, but thought that it was not worth while to notice them in the written opinion. If we understand the petitioner's contention, it is, substantially, that the court below struck out all testimony of ore mined prior and subsequent to plaintiff's lease; that then nothing was left in the case on which the jury could base a verdict *Page 324 for the plaintiff, and therefore the court below erred in denying defendant's motion for a nonsuit. In our opinion, the record does not show that all such testimony was stricken out, but that it shows to the contrary. Besides, in the defendant's statement on motion for new trial he assigns as error, to wit: "(14) The court erred in denying defendant's motion to strike out all testimony of the witness Lanni concerning ores mined on leases prior or subsequent to plaintiff's lease."
We were of opinion, and still entertain it, that, if all the testimony of ore mined prior and subsequent to the term of plaintiff's lease had been stricken out, the court would not have been justified in granting a non-suit. For the undisputed testimony is that, in the month of April of the plaintiff's term under his lease, the defendant extracted about one hundred tons from one body of ore and about eighty tons of ore from another body in said mine; that at that time the market price of lead was $3 30, and it appears from the evidence that when lead was at that price said mine could be worked at great profit. And it is alleged in the complaint that during the year between June 13, 1896, and June 13, 1897, being the term of plaintiff's lease, that the "defendant extracted from said mining claim, and sold, gold, silver, lead ore, of the value of $10,000." The allegation that "defendant extracted from said mining claim gold, silver, lead ore, of the value of $10,000," between said dates, is not denied by the answer; and, when the motion for non-suit was made and denied, the fact alleged as aforesaid stood admitted, and still stands so.
Second Ground for Rehearing: The petitioner says: "The point made by the appellant in his opening brief, at page 18, and which seems to have been overlooked, is that there is a material and recognized distinction between profits to an established business and a prospective one, and that actual loss by interruption of anestablished business may be recovered, while prospective loss for a business to be entered into is denied." The petitioner cites authorities and argues in support of the above contention through several pages of typewriting. We are of opinion that the business of mining on the Homestake mine was pretty well established, and that *Page 325 the evidence shows that the profits thereof prior, during, and subsequent to plaintiff's lease were very great.
The uncontradicted evidence is that the defendant mined 7,000 tons of ore prior to plaintiff's lease; that the mine was profitably worked by lessees in 1893, 1894, and up to August, 1895; that, during the year next after plaintiff's lease expired, there were extracted by defendant's lessees 1,215 tons from the ore body, which the plaintiff proposed and intended to work, and which was of great net value. And it is shown by the pleadings that the defendant mined ore of the value of $10,000 during the plaintiff's said term. Oscar J. Smith testified: "This is the most desirable smelting ore in the world. High percentage of lead, and no undesirable ingredients." We think that the contention of the petitioner that mining on said mining claim was not an established business, and the conclusions he draws therefrom, are without merit.
Third Ground: Petitioner says the appellant did except to the oral charge of the court, for the reason that it did not correctly state the law applicable to the case; and he submits "that, as far as the oral charge of the court is concerned, the rule of McGurn v. McInnis ought not to be applied, and the objection heretofore presented to that charge should be considered." The oral charge contained several propositions, and it was excepted to as a whole or in gross. We think the rule is well established that in such case, if any portion excepted to is sound, the exception cannot be sustained. (Morrill v.Palmer, 33 L.R.A. 411, and cases cited.) "Exceptions should be specific, and should be directed, not to the charge as a whole, but to the portion or portions thereof which are considered objectionable. It is only where the charge is erroneous in its whole scope and meaning, or where the charge, in effect, asserts but a single proposition, that a general exception will be available." (8 Enc. Pl. Prac. 257. See citations given of many cases in 25 state courts, and numerous cases in the federal courts.)
"If an exception is taken to an entire charge, containing several distinct and separate propositions, or in gross to a series of instructions, the exception will be unavailable if any one of the propositions in the charge or any of the instructions is correct." (8 Enc. Pl. Prac. 259, and cases *Page 326 cited from 27 states, and 20 cases from the United States courts.)
The charge in question contained these propositions, among others: "Coöwners of mining claims each have the right to work the mine. One is not liable for the expenses of the others' work. If either extracts valuable ore, he is liable to share the profits with the other. He is entitled to retain his costs and expenses out, but the profit after that must be divided with his coöwner in proportion to the interest of each."
We thought, and still think, the above propositions are correct. Counsel in their brief pointed out some other propositions embraced in said charge, and contended that they were erroneous. Whether they were erroneous or not, we did not consider material. If error was committed in giving them, the exception being taken to the whole charge, or in gross, it could not be sustained.
Fourth Ground: Petitioner says: "In our original brief we tried to make it clear to the court that Paul's so-called lease was void, because it would prejudice the rights of the cotenant, Cragnaz, to a partition; but a careful perusal of the majority opinion fails to show us wherein the court has taken notice of this view of the case, and hence we assume that it may have been overlooked. The court did consider Paul's rights to a partition, but does not seem to have looked at the possible rights that Cragnaz might have had." What we said about partition was in reply to the defendant's contention that Paul's only remedy was an action for partition, or for an accounting of rents and profits. We did not notice the contention, in our former opinion, that the plaintiff's lease was void because it would prejudice the rights of the cotenant, Cragnaz, to a partition, because his right in that respect was not involved in the case. The defendant did not seek a partition of the mine, and when he does so in a proper action, and his right thereto is properly brought before the court for adjudication, it will be time to pass upon that question. His "possible" right was not in issue.
In the case of Boston Franklinite Co. v.Condit and Torrey, 19 N. J. Eq. 394, on which petitioner seems to rely, we find *Page 327 nothing to support said contention. In that case it was held that a tenant in common could not, as against his cotenant, convey his right to any specific portion of the common property, to the prejudice of his cotenant. The court said: "The reason is that it would prejudice the right of the cotenant to a partition. Each tenant in common of an undivided moiety has a right to partition by having one-half of the whole premises set off to him. He must not be compelled to partition one part with one cotenant, and another with another cotenant, as he would if such conveyance were good." That was a suit in equity for partition. The complainant claimed title to "one equal moiety or one-half part of the iron, zinc, and other ores in a tract of land in Sussex county." He claimed no title to any other part of said tract. His right to said ores was based on the following chain of title: E and F being the owners of said tract of land as tenants in common, F, by deed, conveyed to W and A, in terms, "all the iron, zinc, and other ores on or within any lands of F in the county of Sussex." This title of W and A by several mesne conveyances was vested in the complainant, and subsequently F conveyed to his son the undivided half of this tract, and the son conveyed this undivided half to E. The title of E in the tract was by several mesne conveyances vested in the defendants. The court held that the complainant was not entitled to partition as against the defendants, or to any relief as against them. And why? (1) Because the title to said tract having become vested in E, the other cotenant, in severalty, and through him in the defendants, there could be no partition. (2) Because the said conveyance of said ores by F was a conveyance of a specific part of said tract of land held by E and F in common, and was void as to E, and his grantees.
Under the act of congress of May 10, 1872, a lode-mining claim consists of a tract of land with defined surface boundaries, including all lodes, veins, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extending downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical *Page 328 side lines of such surface location. (Congressional Act;Gleeson v. Martin White M. Co.,13 Nev. 442.)
"The location is of a piece of land, including the vein." (13 Nev. 442, supra.)
The lease in question was not a lease simply of the ores (a particular part of the common property), but a lease of an undivided one-third of a tract of land (the Homestake mining claim), including an undivided one-third of the ores therein. We find nothing in the New Jersey case that in any degree supports petitioner's contention.
Prospective Damages: Petitioner cites several authorities to support his contention that the plaintiff could not recover damages sustained by loss of future prospective profits. The answer to this is that the plaintiff's action was not brought to recover damages for loss of profits which he might at some future time sustain by reason of being excluded from working said mine by defendant, but to recover damages for the loss of profits which he had sustained by being prevented from working said mine during the term of his lease, which was then past. That he could have made large profits by working said mine during said term we think was clearly shown by the evidence, as we pointed out in the former opinion.
The petition for rehearing is denied.
*Page 329MASSEY, J.: I concur.