The facts sufficiently appear in the opinion. This is an action of ejectment for the recovery of the possession of plaintiff's mine and damages for ore extracted. It was tried by the First Judicial District Court and a jury, and a verdict rendered in favor of plaintiff for the possession of the mine, and for damages in the sum of $48,000. A motion for a new trial was made and overruled, and from the order and judgment an appeal has been taken.
It was conceded at the trial that respondent was the owner of the Chief of the Hill claim, and appellant the owner of the Northern Belle, First Easterly Extension of the Northern Belle, and General Thomas No. 3, and that each of these claims of appellant was prior in location to that of respondent. Although the action was in ejectment for plaintiff's mine, the veal controversy was whether respondent or appellant *Page 140 was entitled to so much of the General Thomas No. 8 vein as is within the Chief of the Hill location.
Respondent contended that the General Thomas No. 8 and its Chief of the Hill claim are upon the same ledge; that the General Thomas No. 8 ledge crosses its easterly side line, and enters the Chief of the Hill ground at its westerly end line, and thence runs in an easterly direction in the Chief of the Hill ground; that there are two distinct ledges upon the surface — one the Northern Belle, the other the General Thomas No. 8; that the ledges are divided by a body of country rock of varying width, but sufficient to indicate separate fissures; that in the underground workings upon the eighth level of the Northern Belle mine — practically the first level of the General Thomas No. 8, owing to the slope of the hill — the mass of country rock separated the ledges by about 100 feet, and that the separation continued downward to the eleventh level, from which the disputed ore was taken.
The identity of the General Thomas No. 8 with that of the Chief of the Hill was shown in part by a drift through country rock from the Chief of the Hill tunnel, from which a winze was sunk 65 feet to stopes made by appellant upon the eleventh level within the ground of respondent, and was supplemented by expert testimony and that of practical miners to the effect that the ledges were the same, with the reasons upon which the conclusion was based. Appellant contended that the Holmes or Northern Belle ledge extended through each of its claims, to wit, Northern Belle, First Easterly Extension of Northern Belle, and the General Thomas No. 8: that the ledge at the surface is several hundred feet in width, and that there is only one vein in its mining ground; that the country rock between the General Thomas No. 8 and the Northern Belle is not a separation of the veins, but an intrusion within the walls of the ledge, commonly called a "horse" by miners; that there is no ore connection between the General Thomas No. 8 and the Chief of the Hill; that the latter is a separate vein, and either disappears or turns to its northerly side line before reaching the General Thomas No. 8.
It is claimed that the evidence is insufficient to support *Page 141 the verdict. The evidence was conflicting upon all material points. There was substantial evidence upon each side. The jury could have adopted the theories of respondent or those of appellant, according to the view they may have taken of the testimony, and upon appeal this court could not properly disturb the judgment upon the ground of insufficiency of evidence. The jury adopted the views of respondent. It was sanctioned by the district court in denying a motion for new trial, and for this court now to interfere upon the ground that the verdict is against the weight of evidence would be, in effect, to abolish the institution of juries.
Among the instructions given at the request of respondent are the following: "(5) The right of the owner of a mining location to follow a ledge beyond his side lines is limited to the right to follow the ledge downward — that is, on its dip; and he has not the right to follow it laterally, or along its strike. If, therefore, a ledge so bends or curves in its course or strike that vertical planes drawn through the end lines of that location will include a portion of the dip of the ledge which cannot be reached from that location without following laterally or along its strike, then the owner of the location has not the right to enter upon that portion of the ledge, or to extract any ore therefrom.
"((6) If the jury finds from the evidence that there is, within the lines of the General Thomas No. 3, the apex of a ledge, which leaves that location by crossing its easterly side line, and which enters the Chief of the Hill by crossing its westerly end line, and which thereafter continues easterly on its course or strike within the side lines of the latter location, and that the course of that ledge is so bent or curved that its dip within the Chief of the Hill makes a large angle with its dip within the General Thomas No. 3 so that a portion of the dip included within vertical planes drawn downward through the end lines of each of said locations cannot be reached from the General Thomas No. 3 without following the ledge laterally or along its strike, then the defendant, as the owner of the latter location, had not and has not the right to enter upon or extract ore from that portion of said ledge."
The objections to the instructions appears to be in the limitation contained in the following words: "And he has *Page 142 not the right to follow it laterally or along its strike." Under the provisions of section 2322, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1425], locators of mining claims "have the exclusive right of possession and enjoyment of all the surface included within the lines of their location and of all veins, lodes and ledges throughout their entire depth the top or apex of which lie inside such surface lines extended downward vertically, although such veins, lodes and ledges may so far depart from the perpendicular in their course downward as to extend outside the vertical side lines of said surface location. But their right to the possession of such outside parts of such veins, lodes or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described through the end lines of their location so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges."
Respondent contended that the General Thomas No. 3 vein, as it enters the Chief of the Hill ground, runs crosswise to the General Thomas No. 3 location within planes drawn through its end lines.
The relative position of the claims and the strike of the General Thomas No. 3, as contended for by respondent, will be understood by reference to the diagram:
It was held in the Flagstaff Case, 98 U.S. 463,25 L. Ed. 253, that under these provisions the location of a mining claim should be made lengthwise in the course of the vein. *Page 143 "It was not the intent of the law," said the court, "to allow a person to make his location crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein inside of his side lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way, his right must be subordinated to the right of those who have property located on the lode. Their right to follow the dip outside of their side lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim crosses. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hundred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins." Applying these principles, the jury were, in effect, told that the easterly side lines of the General Thomas No. 3 claim was in fact its end line, and that appellant could not follow the strike of the ledge beyond that line. The subject of instruction was the ownership of the miner on the vein within his side lines, and could not have been mistaken, as appellant suggests, to the method by which work could be prosecuted within the limits of the claim either by upraising or drifting.
Respondent's instruction No. 8 was as follows: "(8) If you find from the evidence that the defendant entered upon a ledge having its apex within the exterior boundaries of plaintiff's location, and extracted ore therefrom between the planes drawn vertically downward through the end lines of said location, the right of the plaintiff to recover damages for such acts would not be affected by proof merely that the place from which such ore was extracted could be reached by going continuously through ledge matter from a ledge having its apex within the exterior boundaries of a prior location belonging to the defendant. In order that such proof should avail the defendant, it must further appear that such passage from the apex of defendant's ledge is made continuously downward on the dip of that ledge; and, if any portion of such passage must necessarily be made either upward or laterally along the strike, then the plaintiff's right to recover is not affected." Appellant's evidence was to the effect that at a point called "Crowfoot" on the apex of the First Easterly *Page 144 Extension of the Northern Belle a passage could be made in ore to the thirteenth level, and from thence in ore to the point from which the ore was taken. It was argued that these facts showed but one ledge. Respondent's evidence was that the Northern Belle and General Thomas No. 3 were separate ledges, but that they united somewhere below the eleventh and above the thirteenth level. Assuming that the ledges had so united, the fact that one ledge could be reached in ore or ledge matter from the other below the point of union does not prove they are one ledge above that point.
Respondent's instruction No. 3 was upon the subject of the measure of damages. The testimony of the secretary of defendant and appellant showed that net profits amounting to $60,000 have been paid in dividends to its stockholders, and the testimony of the superintendent showed that twenty-nine thirtieths of the ore extracted was taken from respondent's ground. The testimony of these officers was entirely undisputed. As the verdict was for $48,000, and under the most favorable rule respondent was entitled to recover $58,000, appellant could not have been prejudiced by the instruction.
Appellant requested the court to instruct the jury as follows: "(3) You are instructed that the Holmes Mining Company, the defendant in this action, is, and was at and before 1st day of May, 1884, the time of the alleged trespass, the owner, in the possession, and entitled to the possession of the Northern Belle claim, the First Easterly Extension of the Northern Belle, and the General Thomas No. 3 claim; and that each of said claims was located prior to the location of the Chief of the Hill claim, and that the defendant is now the owner in fee by United States patents of all of said claims, and that at all times prior to May 1, 1884, and ever since has been and now is the owner in the possession of all veins, lodes, and ledges of quartz, or other rock in place bearing gold and silver or other metals, throughout their entire depth, the top or apexes of which lie inside the surface boundary lines of said claims extended downward vertically, and also of the dips of such vein or veins, and all the ore of such veins on their dip, between planes extending through the end lines of such claims in their own direction." *Page 145
The court modified the instruction by inserting after the words "and also of the dip of such vein or veins" the words "as pass through both end lines of each of said claims:"
The requirement that the mineral veins should pass through both end lines is erroneous. It must be conceded, as decided in the Del Monte Case, 171 U.S. 67, 18 Sup. Ct. 895,43 L. Ed. 72, that the miner has the right to follow his vein on its dip outside of his vertical side lines, whether the vein ever, in its course, reaches its end lines or not. The modification was immaterial to any issue, and could not have misled the jury. No question touching the right to follow the vein or the right to the possession of ore depended upon the qualification that the mineral deposit should pass through both end lines of a claim. The controlling question, and upon which the case was tried, was whether the General Thomas No. 3 and the Chief of the Hill were upon the same ledge. If they were not, plaintiff had no cause of action. This is shown by instruction No. 6, given at the request of appellant. It is as follows: "It is entirely immaterial what is the course or dip of any vein in the Northern Belle, First Easterly Extension, and General Thomas No. 3 claims, unless you believe from a preponderance of the evidence that the ore here in dispute was taken from the Chief of the Hill vein from the dip thereof."
Appellant produced the affidavits of two of the jurors tending to show that the jury agreed that each juror should write upon a separate slip of paper the amount of damages he desired to award plaintiff, and that the sum of the several estimates should be divided by 11, the number comprising the jury, and the quotient should be the amount of the verdict. Counter affidavits were filed, but the conclusion we have reached renders their consideration unnecessary.
At common law, affidavits of jurors could not be received to impeach their verdict, but could be admitted in its support. (Rex v. Alnun, Bur. 2686; Vaise v. Delaral, 1 Term R. 11; Owen v. Warburton, 4 Ros. Pul. 326;Turner v. Tuolumne, 25 Cal. 397; Davis v. Taylor, 2 Chitty, 268.)
In Dalrymple v. Williams, 63 N.Y. 361, 20 Am. Rep. 544, it is said: "There are reasons of public policy why jurors should not be heard to impeach their verdict, whether by *Page 146 showing their mistakes or their misconduct. Neither can they properly be permitted to declare, with a view to affect their verdict, an intent different from that actually expressed by their verdict as rendered in open court. In early times the pains and penalties visited upon the jurors for false verdicts furnished an additional reason why they should not be allowed to impeach them. (Watts v. Brains, Cro. Eliz. 778.) But the rule is well established, and at this day rests upon well-understood reasons of public policy as connected with the administration of justice, that the court will not receive the affidavits of jurymen to prove misconduct on their part, or any act done by them, which could tend to impeach or overthrow their verdict. This rule excludes affidavits to show mistake or error of the jurors in respect to the merits, or irregularity or misconduct, or that they mistook the effect of their verdict or intended something different."
"It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England, and, with the exception of Tennessee, perhaps in every state of this confederacy, that such affidavit cannot be received; and, we believe, upon correct reasoning. If it were otherwise, but few verdicts could stand. It would open the widest door for endless litigation, fraud, and perjury, and is condemned by the clearest principles of justice and public policy." (3 Graham Waterman on New Trial, 1429.)
The following reasons are given by the same authors why affidavits of jurors should not be received: "(1) Because they would tend to defeat their own solemn acts under oath. (2) Because their admission would open a door to tamper with jurymen after they had given their verdict. (3) Because they would be the means, in the hands of the dissatisfied juror, to destroy a verdict at any time after he had assented to it." (Page 1428.)
In a learned note to Crawford v. State, 2 Yer. 60, 24 Am. Dec. 467, the author says: "These reasons, considered in connection with the fact it has always been the policy of the law to keep the deliberations of jurors secret, and to allow jurors to arrive at their own conclusions without the fear of being afterwards compelled to disclose or to have disclosed the reasons upon which such conclusions were based, are *Page 147 generally advanced by the latter cases to show that such affidavits should not be received." The common-law rule has been modified by statute in the State of California in this respect: "Whenever any one or more of the jurors shall have been induced to assent to any general or special verdict or to a finding by a resort to the determination of chance, such misconduct may be proven by the affidavits of any one or more of the jurors." (Turner v. Tuolumne, 25 Cal. 400.) South Dakota (Murphy v. Murphy, 47 N.W. 142, 9 L.R.A. 820), Idaho (Flood v. McClure, 32 P. 254), and Montana (Gordon v. Trevarthan, 13 Mont. 387, 34 P. 185, 40 Am. St. Rep. 452) have similar statutes. See, also,Grinnell v. Phillips, 1 Mass. 530; Farrer v. State,2 Ohio St. 54. Aside from the Tennessee cases, contrary decisions can be found in Iowa (Wright v. Illinois M.Tel. Co., 20 Iowa, 195), and one in Kansas (Perry v. Bailey, 12 Kan. 539.) Judgment and order affirmed.
FITZGERALD, J.: I dissent. ON PETITION FOR REHEARING. Per Curiam: Rehearing denied.