MONTANA MINING CO. v. ST. LOUIS MIN. & MILL. CO. OF MONTANA, 147 F. 897

MORROW, Circuit Judge (after stating the facts). It is contended by the plaintiff in error that the judgment of this court entered October 8, 1902, set the entire case at large, and upon the second trial relieved it from the rule prevailing in the United States courts that whatever has been decided on one appeal or writ of error cannot be re-examined on a second appeal or writ of error brought in the same suit. In appellate proceedings the rule ivas stated by the Supreme Court in Browder v. McArthur, 7 Wheat. 58, 5 L.

Ed. 397, as follows: “It was too lato to grant a rehearing in a cause, after it had been remitted to the court below, to carry into effect the- decree of This court, according to its mandate; and that a subsequent appeal from ihe Circuit Court, for supposed error in carrying into effect such mandate, brought up only the proceedings subsequent to the mandate, and did not authorize an inquiry into the merits of the original decree.” In Sibbald v. United States, 12 Pet. 488, 492, 9 L.

Ed. 1167, a motion was made to reform a mandate issued by the court at a previous term so as to conform the same to the opinion given by the court at that time. In granting the motion the court,stated its opinion of the course prescribed by law for it to take after final action upon a case brought within its appellate jurisdiction. The court said: “Whatever was before the court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate.

They cannot vary it, or examine it for any other purpose than execution; nor give any other or further relief; nor review it upon any matter decided on appeal for error apparent; nor intermeddle with it, further than to settle so much as has been remanded.” In Supervisors v. Kennicott, 94 U. S. 498, 24 L.

Ed. 260, the Supreme Court, on a former appeal from the Circuit Court for the Southern District of Illinois, had decided that the mortgage in contro' versy in the case was valid in favor of bona fide holders of the bonds it was given to secure, and that the complainants were entitled to a -decree for the amount of the bonds held by them. The direction of the Supreme Court, as stated in the opinion in that case, was that the judgment of the Circuit Court must be reversed and a new trial had.

In accordance with this direction the Circuit Court upon the new tria appears to have opened up the case for a further hearing upon issues presented and decided upon the first appeal.

On the sécond appeal the Supreme Court refused to consider these questions, referring to the fact that technically there could be no “new trial” in a suit in -equity, and holding that the mandate of the court was to be interpreted according to the subject-matter of the proceedings before the Supreme Court, and if possible so as not to cause injustice; that it was proper to inquire what must have been intended by the use of the term “new trial” in the decree, since it could not have its ordinary meaning, and for the purpose resort might be "had to the opinion delivered at the time of the decree, citing the case of West v.

Brashear, 14 Pet. 51, 10 L. Ed. 350. In refusing, on the second appeal, to consider questions decided on the first appeal, the court said: “These questions are, therefore, no longer open; for it is settled in this court that whatever has been decided here upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Such subsequent appeal brings up fór consideration only the proceedings of the Circuit Court, after the mandate of this court.” In Roberts v. Cooper, 20 How. 481, 15 L. Ed. 969, the case was at law, and was in the Supreme Court on a writ of error.

On a previous writ of error the case had been remanded for a new trial (Cooper v. Roberts, 18 How. 173, 15 L. Ed. 338), and it was contended there, as it is, here, that on a review of the case the party is to be heard at large both as to the law and fact. With respect to this contention the court said: “On the last trial the Circuit Court was requested to give instructions to the jury contrary to the principles established by this court on the first trial, and nearly all the exceptions now urged against the charge are founded on such refusal.

But we cannot be compelled, on a second writ of error in the -same case, to review our own decision on the first. It has been settled by the decisions of this court that, after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second.

To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first, would lead to endless litigation. In chancery, a bill of review is sometimes allowed on petition to the court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes in its members.” In Republican Min. Co. v. Tyler Min. Co., 79 Fed. 733, 25 C. C.

A. 178, this court had before it the question whether the owner of a mining claim was deprived of the extralateral right pertaining to a vein apexing within the boundaries of his claim because the vein, although entering the claim through an end line and running its course lengthwise nearly parallel with the side lines for the greater part of the length of the claim, passes out of the claim across a side line before it reaches the other end line.

The question had been decided by the court, upon a previous writ of error, in favor of the extralateral right claimed by the owner of the vein, and accordingly the court held that, where a case lias been brought before an appellate court and there decided, a second writ of error brings up nothing for review but the proceedings subsequent to the mandate; that the appellate Court is not bound to consider any of the questions which were before the court on the first writ of error. In the case of the Mutual Reserve Fund Life Ass’n v. Beatty, 93 Fed. 747, 35 C. C.

A. 573, this court again referred to this rule in the following language: “It is clear that the decision of the Circuit Court of Appeals upon the former writ of error is the law of the case, and, so far as the court has considered the questions at issue, they must be deemed to be res judicata, and not open for review at this time.” In Thompson v. Maxwell Land Grant Co., 168 U. S. 451, 456, 18 Sup. Ct. 121, 42 L.

Ed. 539, the Supreme Court stated the rule with respect to prior decisions and the authority of the opinion of the court in determining what has been decided, as follows: “It is the settled law of this court, as of others, that whatever has been decided on one appeal or writ of error cannot be re-examined on a second appeal or writ of error brought in the same suit.

The first decision has become the settled law of the case. * * * We take judicial notice of our own opinions, and although the judgment and the mandate express the decision of the court, yet we may properly examine the opinion in order to determine what ¡natters were considered, upon what grounds the judgment was entered, and' wliat has become settled for further disposition of the case.” In the present case this court, on May 14, 3900, entered a judgment of affirmance in accordance with the opinion of the court-in the case entitled, in this court, “Montana Min. Co. v. St. Louis Min. & Mill.

Co.” (102 Fed. 430, 42 C. C. A. 415), and on October 8, 1900, it entered a judgment of reversal in accordance with the opinion of the court in the case entitled, in this court, “St. Louis Min. & Mill. Co. v. Montana Min. Co.” (104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725), both cases being writs of error from the same judgment in, the court below. The Supreme Court of the United States was of the opinion that the judgment in the last case operated to reverse the prior judgment of affirmance in the first case (186 U. S. 24, 22 Sup. Ct. 744, 46 L. Ed. 1039).

In accordance with this opinion this court entered a single judgment of reversal on October 8, 1902, and directed that a new trial be had. The mandate directed “that such new trial and further proceedings be had in said cause in accordance, with the judgment of this court * * * and according to right and justice and the law of the United States ought to be had.” There is certainly nothing in this judgment to indicate a purpose on the part of the court to set aside its decisions rendered in the case.

On the contrary, the fact that these decisions were not withdrawn or recalled and the case set at large indicates that the court has no intention of doing so. The decisions were allowed to stand as the opinions of this court upon the issues presented by the writs of error, and hence becarfie the law of the case. The fact that the mandate does not contain a reference to these opinions does not determine that they are without authority. In the case of Empire State-Idaho Min. & Dev. Co. v. Hanley, 136 Fed. 99, 66 C. C.

A. 87, this court answered a similar objection in the following language: “The fact that the views of the court so expressed in the opinion are not contained in the mandate which issued to the lower court renders them no less conclusive as the law of the case” — citing Thompson v. Maxwell Land Grant Co., 168 U. S. 451, 18 Sup. Ct. 121, 42 L. Ed. 539.

We think that all questions considered and determined in our former decisions upon prior writs of error have become the law of the case; that the lower court was right in refusing to disregard such decisions; and that this court is without authority, upon this last writ of error, to reconsider the questions so determined. We, therefore, pass over the assignments of error relating to questions which appear to have been determined in our previous decisions and come to the new questions raised upon the last trial.

After the taking of testimony had been concluded, the plaintiff moved the court for leave to amend the ad damnum clause of the complaint so as to change the allegation claiming $50,000 damages to an allegation claiming $400,000 damages. To this amendment the defendant objected, and the court overruled the objection. The ruling is assigned as error. Amendments to pleadings are within the discretion of the court, and error will not lie to the granting or refusal thereof.

Section 954, Rev. St. [U. S. Comp. St. 1901, p. 696]; Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800. The remaining assignments of error relate to the charge of the court to the jury. It appears from the transcript of record that, during the argument of respective counsel, the court directed the attention of counsel on both sides to rule 58 of the court and the decision of this court in Mountain Copper Company v. Van Buren, 133 Fed. 1, 66 C. C. A. 151, and Harvey v. Tyler, 2 Wall. 328, 17 L. Ed. 871. concerning instructions to juries.

These decisions require that exceptions to instructions, to be available on writ of error, must be taken to each instruction specifically, and not to the instructions as a whole, and that the record must show that they were taken and the points of exception designated while the jury were at the bar; that it is improper practice to permit formal exceptions to be then noted and the specifications of objections to be supplied in the record later, the object of the rule being that the attention of the trial court shall be called to the precise point to which exception is taken while it may be remedied by the court and before the case is finally submitted to the jury.

Rule 58 of the Circuit Court for the District of Montana appears to be the same as rule 58 of the Circuit Court for the Northern District of California, which permits exceptions to the charge or a refusal to give, as a part of such charge, instructions requested in writing, to be taken by any party by stating to the court, after the jury have retired to consider their verdict, and if practicable before the verdict has been returned, that such party excepts to the same, specifying by numbers of paragraphs, or in any other convenient manner, the parts of the charge excepted to and the requested instruction, the refusal to which is excepted to.

The record of the proceedings of the court with respect to instructions to the jury is as follows: “After delivering the charge, the court, before the going out of the jury for the considering of their verdict, requested counsel to submit any exceptions they might have to the charge, and to the instructions requested and given or refused.

Thereupon, before the jury retired, counsel for both parties retired to the judge’s room with the charge of the court, which was in writing, in their possession, and prepared in writing such objections and exceptions to the charge and the several parts thereof, and to the refusals to charge, as they desired, and thereafter in court the defendant presented the following exceptions and none other, which were then and there received by the court, and signed and allowed before the jury retired.” The exceptions were as follows: “The defendant, immediately after the court had charged the jury and before they had left their seats or retired to consider of their verdict, submitted in writing to the court its objections and exceptions to the said charge, and portions thereof, which objections were then and there severally overruled, and defendant then and there duly excepted.

The defendant also submitted in writing herein its objections and exceptions to the charges offered by the defendant and refused, which objections were likewise severally overruled, and defendant then and there duly excepted. “Said objections and exceptions are respectively as follows, to wit.” Then follow 40 exceptions to the refusal of the court to give instructions as requested, and 16 exceptions to instructions given by the court.

This bill of exceptions concludes as follows: “Notice of the foregoing exceptions are given by the defendant and are received and considered by the court before the going out of the jury on this 6th day of July, 1905. “[Signed]; William TI. Hunt, Judge.” The verdict of the jury was returned July 7, 1905.

The record contains a second bill of exceptions relating to instructions to the jury, proposed after the trial had closed, as follows: “In defendant's proposed bill of exceptions, upon July 31, 1905, the defendant stated its exceptions to the charge given by the court, in the following language.” Then follow 10 objections to specific instructions of the court and a statement with respect to each objection that the court overruled the objection and gave the instruction.

This part of the bill of exceptions concludes as follows: “The court declined to allow the exceptions as stated in the proposed bill of defendant, and directed that the bill incorporate the exceptions and objections made and allowed before the jury retired, to which ruling of the court the defendant then and there duly excepted.” Then follows 11 instructions which the defendant requested the court to charge the jury and which the court refused, and the defendant excepted. This second bill of exceptions was signed by the judge and made a part of the record August 14, 1905.

The plaintiff in error contends that this second bill of exceptions, proposed after the close of the trial, may be taken and considered as a part of the bill of exceptions in the case, under rule 58 of the Circuit Court. In United States v. Carey, 110 U. S. 51, 3 Sup. Ct. 424, 28 L. Ed. 67, the Supreme Court said: “The rule is well established and of long standing that an exception, to be of any avail, must be taken at the trial.

It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise.” In Beaver v. Taylor, 93 U. S. 46, 55, 23 L. Ed. 797, 798, the court said: - “One object of an exception is to call the attention of the circuit judge to the precise point as to which it is supposed he has erred, that he may then and there consider it and give new and different instructions to the jury, if, in his judgment, it should be proper to do so.” In Thiede v. Utah Territory, 159 U. S. 510, 522, 16 Sup. Ct. 62, 40 L.

Ed. 237, the verdict in the lower court was returned on October 2lst. On November 2d counsel for defendant came into court and sought to save other exceptions to the charge. The court noted those exceptions but declined to make any ruling on them. The Supreme Court said: “Obviously, they were too late.” It has been found that the proceedings connected with the taking of exceptions to the charge of the court in the hearing of the jury has sometimes caused the jury to form a wrong impression of the charge and its purpose.

It has also frequently happened that after the jury has retired to deliberate upon their verdict they have returned into court and requested further instructions, and the court, in the absence of counsel, has given such instructions. Merchants’ Exchange Bank v. McGraw, 76 Fed. 930, 936, 22 C. C. A. 622. Rule 58 of the Circuit Court was intended to provide for those two situations and cannot be construed as establishing a method of procedure in conflict with the long line of decisions of the Supreme Court of the United States, from Walton v. United States, 9 Wheat. 651, 6 L. Ed. 182, to Thiede v.

Utah, supra; besides, the language of the rule does not justify such a construction. It was manifestly intended to permit exceptions 'to be taken to the instructions or the refusal to give instructions after the jury had retired to consider their verdict where such a course would he in the interest of justice, and where instructions were given by the court, in the absence of counsel, to permit exceptions to be taken as soon as practicable thereafter.

In the present case, after the judge had instructed the jury, instead of sending the jury out, the judge retired to his chambers and there heard the exceptions to the charge out of the hearing of the jury. This action was in accordance with the spirit and purpose of the rule.

It gave the parties ample opportunity to take exceptions without confusing the jury with the proceedings connected with the action of the court in ruling upon a multitude of exceptions; but it was not intended by this permission, and the further provision that exceptions should be taken to the charge if practicable before the verdict had been returned, to give counsel the general permission to take exceptions to the charge after the close of the trial. Such permission would be contrary to the rule of procedure declared by the Supreme Court and by this court in numerous cases.

But, conceding that this rule was.subject to the construction contended for by plaintiff in error, it was subject to another well-established rule, that it is always in the power of a court to suspend its own rules or to except a particular case from their operation whenever the purpose of justice .requires it. United States v. Breitling, 20 How. 252, 15 L. Ed. 900. This was manifestly such a case, and the action of the court is to be commended rather than made a subject of criticism. This second bill of exceptions cannot, therefore, be considered.

It was not submitted in accordance with the instructions nor in accordance with the rule of the court. In the first bill of exceptions many of the objections to the instructions of the court were noted in general terms, as, for example, that the instruction “does not correctly state the law,” or is “contrary to law,” or is “not sufficiently guarded,” or is “misleading,” or “inapplicable.” These objections were not sufficiently specific and direct to call the attention of the court to the specific point claimed to be erroneous.

They did not furnish the court with the information necessary to enable it to correct inaccurate, inadvertent or misleading expressions, if any such there were. Merchants’ Exchange Bank v. McGraw, 76 Fed. 930, 936, 22 C. C. A. 622. Objections are also now urged to instructions which were not noted or presented to the court below in any form. None of these objections can now be considered. In paragraph 5 of the instructions the court instructed the jury as follows: “Tlie plaintiff must show a right oí recovery.

This applies as well to the question of extralateral rights on the Drmnlummon vein in dispute and upon its discovery vein, as the question of damages.

But if the plaintiff makes a prima facie case by its evidence, and the presumptions of law applicable to the situation, that it has extralateral rights to its discovery vein, between the 520 and 133 loot planes, and therefore to that part of the Drumlummon vein in dispuie. then the defendant must overcome this prima facie case and these presumptions by showing, to the satisfaction of the jury, that plaintiff has no extralateral rights.” To this instruction the plaintiff in error interposed the objection (1) that the burden of proof never shifts as to'extralateral rights for a discovery vein, and (3) that whoever has the burden is only required to establish the fact by a fair preponderance of the evidence, and (3) that this charge does not correctly state the law.

The court afterward instructed the jury, in paragraph 7, as follows: “It is conceded on this trial that the vein from which the ore was extracted has its apex within the surface boundaries of the St. Louis quartz lode mining claim, between the 520-foot plane and the 133-foot plane, which have been described to you in the evidence; but the defendant insists that the St. Louis quartz lode mining claim is not entitled to extralateral rights on the Drumlummon vein from which the ore was taken, and therefore, that plaintiff is not the owner of the ore extracted by defendant.

The vein from which said ore was extracted is admitted to be a secondary or incidental vein of the St. Louis claim.” There was no exception taken to this latter instruction. It was strictly in accordance with the pleadings and the facts stated were admitted facts in the case, and further than this, the previous decisions of this court had determined that the St.

Louis Company owned the mineral in this vein within the planes described, and such determination had become the law of the case. _ The fifth paragraph of the instructions of the court, to which objection is urged, could not, therefore, prejudice any right of the plaintiff in error. If the instruction is open to any criticism, it would seem to be that the extralateral fights of the discovery, vein were not in issue in the case. The only question in controversy under the pleadings was whether the St.

Louis Company had conveyed the extralateral rights of the Drumlummon vein to the Montana Company by the deed of July 1, 1895, and if it had not, the damages sustained by the St. Louis Company by reason of the trespass of the Montana Company upon that vein. The first of these questions had been determined by this court in favor of the St. Louis Company, and the second question was being determined in the trial then in progress. Whether the plaintiff had made a prima facie case of extralateral rights to either the discovery or Drumlummon veins was therefore immaterial.

It had been determined upon the admitted'facts in the case that the Drumlummon vein had such extralateral rights, and that that was all that was -necessary to be established to entitle the plaintiff tb recover. The instruction that “the defendant must overcome this prima facie case and these presumptions by showing to the satisfaction of the jury that plaintiff has no extralateral rights,” was also immaterial and did the plaintiff in error no injury, even if open to the objections urged against the instruction.

In paragraph 8 the court instructed the jury as follows: “If you find that the course or strike of the discovery vein in the St. Louis mining claim, as disclosed at-the point of discovery or elsewhere, is generally lengthwise of the location, the presumption arises that the discovery vein so located extends through the entire length of such location. “And I further charge you that the burden is upon the defendant to overcome this presumption to your satisfaction.

It is not'necessary, in order to give plaintiff; extralateral rights on that part of the Drumlummon vein which apexes within the surface boundaries of the St. Louis claim, between the 520 and 133 foot planes, that the discovery vein of the St. Louis claim should pass through either end line of said claim, but it is sufficient to give such rights if the discovery vein, in its course or strike, passes through the ground within the St.

Louis claim between such planes generally lengthwise of the claim.” To this instruction the defendant excepted, on the ground that it was contrary to the law in that no presumption whatever arises with reference to the course of the discovery vein. The answer to the objection urged against paragraph 5 of the instructions is a sufficient answer to this objection. If, however, the course, length, and dip of the discovery vein ift the St.

Louis claim were facts material to the question of the extralateral rights of the Drumlummon vein between the 520 and the 133 foot planes, then the court covered the entire subject in paragraph 9 of the instructions, as follows: “And if you find that the discovery vein (or veins so connected with it as to be part of the system of veins at the discovery point) runs lengthwise of file St.

Louis claim between its side lines, and extends from the 520 to the 133 foot plane, and dips easterly, then plaintiff would be entitled to extra-lateral rights for that vein (or those veins) and to the like extralateral rights for all other veins having their apexes within the same limits, and running in the same general direction.” To this instruction no exception was taken.

In paragraph 25 the court instructed the jury as follows: "When you are told in this charge that the burden of prraf upon any issue is upon either party to this action, you are to understand that such party must present evidence for your consideration which preponderates over the evidence of the other party upon that issue; and if, after due consideration of all the evidence introduced by the party having the burden of proof, it does not preponderate in his favor, hut that the evidence of each party upon the issue is equal in your judgment, it is your duty to find such issue against the party having the burden of proof, under the instructions.” To this instruction no exception was taken.

All these instructions must be taken together. They qualify each other, and, considered in that light, we do not think plaintiff in error was prejudiced by the instructions as to the burden of proof as given in paragraphs 5 and 8 under any view of the case, either as to the law or the facts on which the case was submitted to the jury. The use of the word “satisfaction” in paragraphs 5 and 8 of the instructions is specifically objected to on the ground that it required the plaintiff in error to furnish a higher degree of proof than the law demands.

What lias been said about the burden of proof is applicable to this objection. Assuming that the word is objectionable, it did not injure the plaintiff in error, as it related to a question not in issue on that trial. The plaintiff in error contends that the instructions concerning the measure of damages were erroneous! The instructions objected to are contained in paragraphs 11, 17, 18, 19, and 32 of the instructions of the court. To paragraph 31 no exception was taken at the trial.

In paragraph 17 of the instructions, the court instructed the jury as follows: “If, from the evidence before you. it appears to your satisfaction that, since the commencement of this action and the service of summons upon the defendant, it has taken out and converted to its own use quartz, rock, and ore, within the planes described in the complaint, from said vein, lead, or lode, belonging to the plaintiff, under the instructions given you, then the acts o'f' said defendant, to the extent of said trespass, cannot be regarded as done without notice and knowledge of said plaintiff’s title and claim.

Under such circumstances the trespasser may not be permitted to benefit by its trespass, and if, by reason of such trespass, it has placed the evidence within its control, or left it so that the extent of the injury to the plaintiff is uncertain, then it is your duty to see that the real owner and innocent party does not suffer from the trespass, and award to it such damages as will afford it just compensation for the injuries it has sustained.” To this instruction the defendant excepted “for that it is contrary to law, is not sufficiently guarded, and is misleading to the jury.” Plaintiff in error contends, that in this instruction the court instructed the jury that, as to all ore dug after the commencement of the suit, it was charged with knowledge and notice of the plaintiff’s title, and therefore could not be an innocent or other than a willful trespasser.

The instruction does not appear to be open to such an

interpretation. It was plainly intended to direct the attention of the jury to a question of evidence and to instruct the jury that after the defendant had received notice and knowledge of plaintiff’s claim of title to the ore in the vein in controversy the defendant should riot be permitted to benefit by its trespass by placing or leaving evidence of the extent of such trespass uncertain.

In other words, after notice it was the duty of the defendant to keep a correct record of the quantity and value of the ore extracted, and, failing to do so, it was not to be benefited by this failure; the jury was to award just compensation for the damages sustained by the plaintiff by reason’ of the trespass. If this is not the correct

interpretation of the instruction, it was the duty of the plaintiff in error, in taking its exception at the trial, to point out the precise point of the objection, that the court might have made the instruction clear and direct with respect to the matter involved. Tailing to do this, the instruction is not now open to the objection urged against it.

Paragraph 18 of the instructions was as follows : “The defendant, -even if an innocent trespasser, is not entitled to claim any mitigation of damages for the money expended in the running of levels, sinking shafts, or development work, except to the extent actually necessary to the. extraction of the ore in controversy. It is held liable under the law for the actual value of the ore, if the trespass was innocent, less the reasonable cost of extracting the ore, raising it to the surface, transporting it to the mill, and reducing or milling it.

Defendant cannot charge, in making the amount of these deductions, any extraordinary expenses to its plant or any salaries paid to its officers, or any wages to any persons except those actually employed and engaged in extraction, transportation, and milling of the ores in question.” To this instruction defendant excepted, “for that it is" contrary to law and does not correctly define what mining and milling expenses ’ may be deducted.” Plaintiff in error now contends that instruction No. 11 (to which no exception was taken) and instruction No. 18 practically told the jury that a willful trespasser could have no credit either for extraction or for cost of treatment or handling, and that the court declined to advance the correct rule by refusing Its. requested instruction No. 43.

This last instruction is not in the record-and we are not advised as to its terms; and instruction No. 18 is not subject to the objection now urged against it.

Paragraph 19 of the instructions was as follows: “When one has the apex of a vein within the surface boundaries of his mining claim, and is entitled to extraía toral rights thereon, such vein belongs to such person, and the possession of such mining claim Is possession of such vein in its downward course to its uttermost depth, and the entire vein is treated and considered under ihe law the same as though it, in its entirety, was wholly within the surface boundaries of said mining claim, and a tres puss thereon by a third person is treated and considered the same as though it was a trespass upon said claim within its-surface boundaries.

And therefore L instruct you that, in order to show good faith and honest ini out in the trespass and extraction herein complained of, the defendant must satisfy you that its claim of good faith and honest, intent would have been sufficient to excuse the willfulness of the trespass, had it been committed upon and within the surface boundaries of the St.

Louis claim and the ore extracted therefrom.” To this instruction defendant excepted “for the reason that it does not correctly define the possession plaintiff must have in order to support an action for trespass, and is not applicable to the facts proven and conceded in this case.” In Montana Min. Company v. St. Louis Min. & Mill, Company, 102 Fed. 430, 435, 42 C. C.

A. 415 (one of the former decisions of this court in this case), this court held that the possession of the surface of a mining claim is the. possession of a vein or lode having its apex within the surface lines of the claim, although extending downward such vein may pass beyond the vertical side lines of the claim, and will support an action of trespass for the removal of ore from such vein beneath the surface of an adjoining claim.

Plaintiff in error contends that the court was in error in instructing the jury that the good faith and honest intent of the defendant in trespassing upon the vein in controversy and in extracting ore therefrom must be sufficient to excuse a similar trespass committed upon and within the surface boundaries of the St.

Louis claim; that the instruction denied to the plaintiff the benefit of the inference resulting from the work being done within its own surface, and directed the jury in effect to disregard all the peculiar facts hearing on the title to the compromise strip and the present litigation with reference thereto in evidence in that case when considering the issue of honest belief of ownership. The instruction did not direct the jury to disregard any fact tending to show good faith and honest intent.

It simply stated that the evidence of good faith and honest intent must be the same in both cases, and this was clearly correct. There cannot be one measure of good faith and honest intent in one case and a different one in the other. The facts may be different, but good faith and honest intent remain the same. In paragraph 13 of the instructions, the court made it clear that all facts and circumstances were to be considered by the jury in determining the question of good faith.

The instruction of the court in that paragraph was as follows: “In determining the question of the good faith of defendant in extracting and removing the ore in question, you are entitled to consider all the facts and circumstances shown by the evidence.

If you find that the defendant acted under an honest belief that it was the owner of the ore in the disputed ground, and had good right and lawful authority to extract the same, and that such belief' was based upon such facts and circumstances as that you believe that an ordinary man, acting as you find the defendant acted, would have had the honest belief that he owned such ore and had a right to remove it, then the trespass was not willful.” In paragraph 32 of the instructions the court instructed the jury as follows: “In considering any ore extracted from block 8, part of which was removed under the authority of this court some time ago, and to which defendant asserted claim of title, you are charged that if the defendant desired to have the value of the ores so removed deducted from the amount of any verdict which may be rendered, it should have introduced evidence to show that the ores were offered to, or were left in the possession of, the plaintiff, and of their value; and if the evidence fails to disclose such facts to your satisfaction, defendant is not entitled to have any deduction therefor; on the other hand, if such facts are so disclosed, you should make a deduction in accordance with the general rule laid down in.the charge.” To this instruction the defendant excepted “for the reason that the same is contrary to law and would require the defendant to surrender its contention that such ore justly belongs to it.” It is urged, however, that the court charged the jury, in effect, that they should give no credit for ores,held by the defendant under injunction process secured by the plaintiff itself, because it told them that defendant must have offered or left the ores in the possession of the plaintiff and proved their value, and this in face of the fact that the injunction order directed the defendant not to give them to any one, and the further fact that such surrender would have been an abandonment of defendant’s claim of title, which formed the basis of its defense in the injunction suit.

It appears that this question was before this court in the case reported in 102 Fed. 436, 42 C. C. A. 415. Discussing this matter, the court said: “Error is assigned to the refusal of the court to instruct the jury not to inv,.

Je in their verdict the value of certain ores which had been- mined, but which had been stored by the defendant therein, under an injunction issued in the action enjoining it from ‘disposing of, treating, and reducing any ores heretofore removed or extracted from said premises,’ for the reason that such ores were held subject to the order of the court, and had not been converted to the use of the defendant.

There is nothing in the pleadings or in the bill of exceptions to show that such ores had been returned or tendered to the defendant in error, or in any way accounted for; nor was evidence offered for the purpose of definitely fixing the value of such ore so that the court could have properly instructed the jury to take the same into account.

It was for the plaintiff in error, if it desired to have the value of such ores deducted from the amount of the verdict, to have caused the record to show that the ores were offered to, or left in the possession of, the defendant in error, and to have submitted evidence of their value.” We think this is a sufficient answer to this objection. We have carefully examined the instructions as a whole, and we find them clear, direct, and in conformity with the law.

Where, upon the evidence before the court, they have referred to questions admitted by the pleadings or previously determined by this court, they have in no way prejudiced the rights of the plaintiff in error. Finding no error in the record, the judgment .of the court below is affirmed.