MONTANA MINING CO., Limited, v. ST. LOUIS MIN. & MILL CO. OF MONTANA, 183 F. 51

MORROW, Circuit Judge (after stating the facts as above). It is contended by the Montana Company that the St. Louis Company has no extralateral rights in the Drum Lummon vein underneath the Nine Hour claim. This contention is based upon two facts;

(1) That the Drum Lummon vein was not the discovery vein of the St. Louis claim, but is what is called a secondary vein.

(2) This secondary vein enters and departs from the St. Louis claim by a side line.

Section 2322 of the Revised Statutes (U¿ S. Comp.

St. 1901, p. 1425) provides that: “The locators of all mining locations * * * on any mineral vein, lode, or ledge, situated on the public domain * * * shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended 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 side lines of such surface locations.” The patents for the St.

Louis and Nine Hour claims, like all patents for mineral lands, conveyed to the grantees the respective claims and veins therein with the extralateral rights provided in the statute, with the express reservation in each patent: “That the premises hereby granted, with the exception of the surface, may be entered by the proprietor of any other vein, lode or ledge, the top or apex of which lies outside of the boundary of said granted premises, should the same in its dip be found to penetrate, intersect or extend into said premises, for the purpose of extracting or removing the ore from such other vein, lode, or ledge.” The evidence in this case on the last trial, as upon former trials, established the fact that the Drum Lummon vein apexes for a certain distance within the St.

Louis claim and dips underneath the Nine Hour claim. We are therefore of the opinion that the right of the St. Louis Company to extralateral rights in the Drum Lummon vein to the extent, that that vein apexes within the St. Louis claim has been previously determined by this court. (102 Fed. 430, 42 C. C. A. 415; 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725; 147 Fed. 897, 78 C. C. A. 33), and that this determination has been affirmed by the Supreme Court of the United States (204 U. S. 204, 27 Sup. Ct. 254, 51 L. Ed. 444), and that such has become the law of the case. To what extent the St.

Louis Company has extralateral rights in the Drum Lummon vein underneath the surface of the Nine Hour claim depends upon the extent to which that vein apexes within the St. Louis claim, and this question depends in turn upon the location of the boundary line between the St. Louis claim and the compromise ground, and the point where the Drum Lummon vein crosses that line. In the former trials of this case there had been no controversy about this fact.

The lines of the compromise ground have been placed on numerous plats and maps showing a strip of ground' 30 feet wide and containing about 12,844.5 square feet on the souths eastern boundary of the St.-Louis claim and parallel to the southeastern boundary line of that claim between corners Nos. 2 and 3, as described in the patent for that claim, and this description had been treated as correct by both parties. It had also been referred to in this court indifferently as either the “compromise ground,” or “30-foot strip,” and occasionally both terms have been used. 102 Fed. 130, 42 C. C.

A. 415; 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725; 147 Fed. 897, 78 C. C. A. 33; 168 Fed. 514, 93 C. C. A. 536. It was referred to in the Supreme Court in reciting the averments of the pleadings as the “30-foot strip or compromise ground.” 186 U. S. 24, 22 Sup. Ct. 744, 46 L. Ed. 1039. The calls of the description of the compromise ground in the bond and deed do in fact describe a strip of ground in the southeastern corner of the St. Louis claim with parallel sides 30 feet apart and containing about 12,844.5 square feet. But at the last trial the St. Louis Company called as a witness one John R.

Parks, a mining engineer, who produced a map prepared under his direction showing the surface and underground workings of the St. Louis and Nine Hour claims, and the location of the 30-foot strip or compromise ground.

The map was admitted in evidence and marked plaintiff’s “Exhibit 1.” When the witness had indicated on the map the courses and distances inclosing this strip of ground and particularly the location of the west side line of the compromise ground, the Montana Company objected to any further testimony with reference to this line as drawn upon the map for the reason that it was not drawn in accordance with the’description of the ground as contained in the deed. The objection was overruled, and the witness traced the lines of the compromise ground in detail as shown upon the map.

The objection was that the west side line of the compromise ground, which is also the east side line of the St. Louis claim after the compromise ground had been cut off, is not located as required by the initial call of the deed describing the compromise ground. That call is as follows: “Commencing at a point from which the center of the discovery shaft of the Nine Hour lode bears south 39 degrees 32 minutes east, said course being at right angles to the boundary line of the St.

Louis lode between corners 2 and 3, 50 feet distant.” The west side line of the compromise ground, as shown upon the map, plaintiff’s Exhibit 1, instead of being 50 feet distant from the present discovery shaft of the Nine Hour claim, is 40 feet distant. To sustain the correctness of the lines of the compromise ground as shown on the map, the St.

Louis Company introduced in evidence, over the objection of.the Montana Company, evidence tending to show that the collar of the. discovery shaft of the Nine Hour claim is not at the same point it was at the time of the compromise agreement; that the original shaft was perpendicular, such as a prospector usually sinks; that the shaft was afterwards sunk on an incline, corresponding with the dip of the vein, and the collar of that shaft was brought about 10 feet further west and nearer to the original eastern side line of the St. Louis claim.

This evidence, if true, accounted for the fact that, if the commencement point were taken from the middle of the present shaft, it would make the width of the strip of compromise ground at the point of commencement 40 feet instead of 30 feet, as called for in the deed. Presumably for this reason the witness Parks in tracing the boundary of the compromise ground did not commence with the initial call of the deed, but commenced at corner No. 2 of the St.

Louis claim as described in the patent; that is to say, he measured north from corner No. 2 of the patent, along the line in the direction of corner No. 1, 60.5 feet.

This line followed in reverse direction the third call of the deed: “Thence south 20 degrees 28 minutes west along the line of said boundary between corners one and two, ,60.5 feet to corner 2.” He then commenced at corner No. 3 of the patent and measured along the line between corners 3 and 4, 30.34 feet to a point on that line; then by a survey connecting those lines and by mathematical calculations he found he had a line parallel to the east side line of the southern portion of. the St.

Louis claim inclosing a strip of ground 30 feet wide, but this strip of ground contains 12,929.8 square feet, instead of 12,844.5 square feet mentioned in the deed, a difference of 85.30 square feet. This difference is easily accounted for. In the original survey and plat for the adverse claim, the length of the side line of the St. Louis claim between corners Nos. 2 and 3 was determined by the surveyor as being 400.31 feet, and this was the length of the line subsequently incorporated into the bond.

This line with the other calls in the bond described an area containing 12,844.5 square feet, the area of the compromise strip stated in the bond and deed. The deed erroneously gave the length of this line as 103 feet, instead of 400.31 feet, as stated in the bond. The survey for the map, plaintiff’s Exhibit 1, makes the length of this line 402.34 feet, and the surface of the area, as before stated, 12,-929.8 square feet.

It appears that, if the point of commencement described in the deed is taken as 50 feet from the center of the discovery shaft as now located, the strip of compromise ground would be 40 feet wide at the point of commencement, but with the further calls of the deed the side lines would not be parallel, and the area of the surface would contain 16,095.4 square feet instead of 12,844.5 square feet; or if, commencing at the same point, the side lines of the strip are made parallel and 40 feet apart, disregarding the other calls of the deed, the area included would be 17,356.7 square feet, instead of 12,844.5 square feet, as called for by the bond and deed.

It thus appears that, if the west side line of the compromise ground is located 50 feet from the discovery shaft of the Nine Hour claim as required by the first call of the bond and deed, no other call of the bond and deed is followed in describing the compromise ground, and the call for quantity is wholly disregarded. “Where there is uncertainty in specific description, the quantity named may be of decisive weight.” Ainsa v. United States, 161 U. S. 208, 229, 16 Sup. Ct. 544, 552, 40 L. Ed. 673.

It is' contended by the Montana Company that there was no controversy as to the description of the compromise ground; that it was described in the bond and deed and set forth in the amended complaint and admitted in the answer; that the west side line of the compromise ground was 50 feet distant from the center of the discovery shaft of the Nine Hour claim and was the dividing line between the St. Louis claim and the compromise ground. It is admitted by the St.

Louis Company that prior to the last trial there had been no controversy upon the subject; that the compromise ground was described in the bond and deed as 30 feet wide with its west side line parallel to the east side line of the St. Louis claim, between corners numbered 2 and 3; that the courts had uniformly held as a matter of law that such was a description of the compromise ground, and the ground so described contained an area of 12.-844.5 square feet In other words, the primary contention of both parties is,that the question at issue was one of law for the court.

The court below treated it as a mixed question of law and fact. There was ambiguity in the description as contained in the deed, and the court was compelled to resort to extraneous evidence to identify and fix- the lines of the survey on the ground, and this .identification was a question of fact for the jury, as held by the Supreme Court in Ayers v. Watson, 137 U. S. 584, 590, 11 Sup. Ct. 201, 34 L. Ed. 803, where a similar question was before the court relating to the identification of the lines of a grant of land in Texas.

The only question then arises: Did the court submit this question to the jury with proper instructions? The court instructed the jury upon this question as follows: “You have heard, a great deal about the boundaries of what was spoken of as the compromise strip, an'd, as the matter is important, I will direct your attention to it. The bond and the deed with respect to it are in evidence before you.

In applying the description set forth in the bond for, and conveyance of, the ground, you are permitted to reverse the calls and trace the lines the other way, and should do so whenever by so doing the lands embraced would more nearly harmonize with the calls and objects of the grant. If an insurmountable difficulty is met with in running the lines in one direction, yet is entirely obviated by running them in the reverse direction, and all the known calls of the survey are harmonized by the latter course, it is only a dictate of common sense to follow it.

The beginning point of a survey does not control more than any other point actually well ascertained, and you are not bound to follow the calls of a grant in the way said calls stand in the words of description. Therefore, if you can take the description, as specified in the bond and deed, by beginning at any point mentioned therein, and thus apply said description to the ground more nearly than in commencing at the beginning point of said survey as mentioned in said description, then you should so apply said description.” This instruction followed the rule laid down in Ayers v. Watson, 137 U. S. 584, 31 Sup.

Ct. 201, 34 L. Ed. 803, where the Supreme Court, referring to an instruction given the jury by the trial court, said: “The Judge was entirely right in charging that the footsteps of the original surveyor might be traced backward as well as forward; and that any ascertained monument in the survey might be adopted as a starting point for its recovery.” The court said further, at page 598 of 137 U. S., at page 208 of 11 Sup. Ct. (34 L.

Ed. 803) : “The ‘beginning’ corner does not control more than any other corner actually well ascertained, nor are we constrained to follow the calls of the grant in the order said calls stand in the field notes there recorded, but are permitted to reverse the calls and trace the lines the other way, and should do so whenever by so doing the land embraced would most nearly harmonize with the objects of the grant.” The court said further, at page 604 of 137 U. S., at page 208 of 11 Sup. Ct. (34 L.

Ed. 803) : “If an insurmountable difficulty is met with in running the lines in one direction, and is entirely obviated by running them in the reverse direction, and all the known calls of the survey are harmonized by the latter course, it is only a dictate of common sense to follow it.” In Burge v. Poindexter (Tex. Civ. App.) 56 S. W. 81, 82, the court said; “It is not absolutely necessary, in locating a survey, to follow the calls of the grant in the order given.

If, by reversing the calls, a more accurate result can be obtained in locating the land surveyed than by following the order of the field notes, then that method should bo pursued.” For the purpose of further identifying the location of the boundary lines between the St. Louis claim and the compromise ground as agreed upon by the parties in interest, testimony was introduced by the St.

Louis Company, over the objection of the Montana Company, tending to show that the compromise ground was staked off and marked upon the ground; that the width of the ground by such staking was 30 feet; the acquiescence of the party to the correctness of such stakings; that the Montana Company went into possession of the compromise ground as staked and built a shafthouse immediately east of the line so staked; that the St.

Louis Company started a shaft immediately to the west of such line, the line being the dividing line between the two. shafts; the building of brattices or board partitions across the workings beneath the surface of the compromise ground at or near the vertical plane so staked off; the fact that the brattices or partitions had the effect of preventing any one from entering the workings of the compromise ground from the St. Louis side; the fact that the St.

Louis Company extracted ore from the apex of the vein down to the vertical line as established by projecting the west side line of the 30-foot strip as staked vertically downward; that the Montana Company made no claim for any ore taken by the St. Louis Company from the west side of this line. The admission of this and other testimony relating to the west side line of the compromise strip is assigned as error, as is also the instruction of the court to the jury with respect to such testimony. The testimony was clearly admissible.

It was for the jury to ascertain and locate the line in controversy, and to enable it to perform that duty intelligently, any evidence, whether parol or written, that had any natural or reasonable tendency to show its location, was admissible. Washington Rock Co. v. Young, 29 Utah, 108, 80 Pac. 382. In a note to this case as reported in 110 Am. St. Rep. 666, 682, the rule relating to the location of a boundary line is stated as follows: “When questions arise as to the true location of a boundary line, a practical location thereof by the persons interested becomes of the highest importance.

It is a well-settled, rule of law, resting upon public policy, that a practical location of boundaries which has been acquiesced in for a long period of years will not be disturbed. It is binding on the parties thereto and their privies in estate. This doctrine has been adopted as a rule of repose with a view of quieting titles and preventing litigation” — citing the cases of McGee v. Stone, 9 Cal. 600; Dupont v. Starring, 42 Mich. 492, 4 N. W. 190; Smith v. State, 23 N. J. Law, 130; Laverty v. Moore, 33 N. Y. 658; Sherman v. Kane, 86 N. Y. 57; Katz v. Kaiser, 154 N. Y. 294, 48 N. E. 532; O’Donnell v.

Penney, 17 R. I. 164, 20 Atl. 305. “It does not necessarily rest upon an actual agreement nor upon prescription or legal limitation. Haring v. Van Houten, 22 N. J. Law, 61.” The Montana Company contends that the ruling of the court in admitting testimony and in instructing the jury in accordance with this rule was error, and cites the case of Schraeder Mining Co. v. Packer, 129 U. S. 688, 699, 9 Sup. Ct. 385, 32 L. Ed. 760, as establishing a different rule.

In that case the court said: “Owners of adjacent tracts of land are not bound by consent to a boundary which has been defined under a mistaken apprehension that it is the true line, each claiming only the true line, wherever it may be found, and that in such ease neither party is precluded or estopped from claiming his own rights under the true one, when it is discovered.” The evidence in that case to which this instruction referred related' to an alleged assent by one of the parties to a boundary line between two tracts of land located in ignorance of both parties as to the existence of any conflict as to the true line.

That is not this case, and the court draws the distinction between the facts of that case and a case such as the one at bar in the following language, referring to the charge of the trial court to the jury (on page 698 of 129 U. S., on page 388 of 9 Sup. Ct. [32 L.

Ed. 760]) : “The assent was given, not to settle a dispute, but to acquiesce in the running of a line about which no dispute had then arisen, and' upon the supposition that the person engaged in running it knew where the true lines were; that it was an acquiescence resulting from a pure mistake and error, which should not bind the plaintiff or estop him from claiming his rights when he discovered the mistake.” The Supreme Court, commenting on this charge, said: “AVe think the court in its charge brought out clearly and fairly before the jury the distinction between a mutual undertaking to adjust and settle a doubtful and disputed dividing line, in -case of conflicting titles, on the one hand, and, on the other, the consent of parties to mark a boundary supposed to run between undisputed tracts, but in ignorance and mistake of both as to the existence of any conflict.” The law of that case is clearly not applicable here, where there was a controversy for many years as to the ownership of a vein in the compromise ground; 'but no controversy with respect to the dividing line bettveen that ground and the St.

Louis claim, but evidence of a knowledge of all the facts by the parties and a mutual assent and agreement as to its location. The court in'its instructions-to the jury concerning the acts and conduct of the parties to the controversy and their declarations said: ‘•Consider whether for many years the parties thereto and each of their predecessors in interest acquiesced and recognized that the compromise ground was a strip 30 feet wide along the above-mentioned east boundary line of the St.

Louis claim, as surveyed for patent, and, as I have said, any and all other evidence that was introduced by the plaintiff and the defendant in the trial of the case, showing or indicating, or tending to show, what the intention of the parties to the bond was, and the acts of the parties thereto, and their successors in interest.

If you believe that the parties hereto and their predecessors in interest applied the description in said bond, by markings on the ground, and occupied it with reference to said markings, and, for many years, acceiJted a strip of ground 30' feet in width as conforming to the description in said bond, as shown by plaintiff’s Exhibit 1, then and in that event the defendant here would be and is estopped from claiming that a strip of ground 30 feet wide along the east boundary line of the St.

Louis claim, as surveyed for patent, between corners numbered 2 and 3, does not comply with the description of said compromise strip in said bond and deed, and from claiming or asserting that any other different or further ground was included in the description set forth in said bond and deed.” To these instructions the Montana Company objected in the following language: “The defendant objects and excepts to so much, of the court’s Instructions as referred to the drafting ol' the description of the compromise ground, and as to the acts of aciruiescenee and estoppel with reference to the compromise ground.” This objection was indefinite; it simply identifies the part of the instruction with which the Montana Company was not satisfied without in any manner apprising the court of the ground of the objection.

The attention of the court was not called to the specific proposition which the Montana Company desired modified or withdrawn, and for that reason might well be disregarded. But it is not necessary to dispose of the objection in that way. The court showed by its instructions that it understood the case in all its bearing and was fully advised as to the law applicable thereto. The objection that there was no plea of estoppel on the part of the St. Touis Company is answered by the fact that the position of the St. Touis Company did not require that it should make such a plea. It alleged the ownership of the St.

Touis claim and the vein in question, save as to the compromise ground. The line dividing the compromise ground from the St. Touis claim was not in controversy until the last trial, when the map of the St. Touis Company showing the location of the compromise ground was offered in evidence and was then objected to by the Montana Company on the ground that the witness had not drawn the line in accordance with the description of the compromise ground contained in the deed and complaint. There'was no place for a plea of estoppel in such a proceeding.

The objection that the court did not instruct the jury tliat, if the line in question had been fixed by acquiescence and agreement between the parties, such acquiescence must have been continued lor a period of time at least equal to the statute of limitations, to be binding upon the Montana Company, cannot be sustained. The evidence was not introduced for the purpose of establishing adverse possession, but for the purpose of showing that the line had been drawn by the parties and marked upon the ground as the true line agreed upon in the compromise agreement.

Upon the evidence, and under the instructions given by the court, the jury found the compromise strip as contended for by the St. Touis Company, and as pictured on its map, plaintiff’s Exhibit 1. The compromise ground was there shown as a strip 30 feet wide and its western boundary line as claimed by the St. Touis Company. It is contended by the Montana Company that, the comprqmise ground having been patented as a part of the St. Touis claim, and the St.

Touis Company having conveyed the compromise ground to the Montana Company, the rights of the parties in the Drum Tummon vein are to be determined by the relation of grantor and grantee; and as the general rule of construction applicable to all grants Is that, where it is not possible to determine from die deed just what is conveyed, the deed must be construed in favor of the grantee; that in the present case the grantee received a grant of a portion of the apex of the Drum Trunnion vein, which by reason of its width was partly in the St.

Louis claim and partly in the compromise ground; that, as the vein was not susceptible of division, the deed must be construed against the grantor, and the whole of the vein must be held to have passed to -the Montana Company. There are two answers to this contention: The first is that the purpose of this action was to determine from the deed, and the' testimony relating thereto, just what was conveyed by the deed; and that fact has been determined by the verdict of the jury. In the absence of error in the proceeding, the grant as there determined must be held to be definite, certain, and free from ambiguity.

The second answer is that we are not now dealing with the compromise ground. All controversy concerning the extralateral rights of the St. Louis Company in the Drum Lummon vein under the compromise ground was determined and set at rest by the Supreme Court of the United States in its decision in 204 U. S. 204, 27 Sup. Ct. 254, 51 L. Ed. 444. The deed related only to the compromise ground; it did not in any way purport to convey extralateral rights elsewhere, and the grantor parted with no rights in the Nine Hour claim, excluding the compromise ground. The relation of the St.

Louis claim to the Nine Hour claim to the east of the compromise ground has been in no way disturbed and remains precisely what it was prior to the compromise agreement. This the Supreme Court was careful to state in its decision on page 218 of 204 U. S., on page 257 of 27 Sup. Ct. (51 L. Ed. 444): “To the suggestion that giving this construction to the bond and conveyance is in effect the granting of a

section of a vein of mineral, the answer is that there is nothing impracticable or unnatural in such a conveyance. It does not operate to transfer the vein in toto, but simply carves out from the vein the

section between the vertical side lines of the ground and transfers that to the grantee. The title to' the balance of the vein remains undisturbed.” What were the extralateral rights of the St. Louis claim in the Drum. Lummon vein under the Nine Hour claim excluding the compromise ground? In the decision of this court in 104 Fed. 664, 44 C. C. A. 120, 56 L. R. A. 725, this court considered the question of extralateral rights of the St. Louis Company in the Drum Lummon vein, which by reason of its width was partly within the St. Louis claim and partly within the compromise ground.

This court held that, inasmuch as neither the statute nor the authority of adjudicated cases permitted a division of the crossing portion of the vein, the rights of the parties would be determined by the priority of location and the entire vein considered as apexing upon the senior location until it had wholly passed beyond its side line. The compromise ground having been eliminated, the law is now applicable to the extralateral rights of the St. Louis claim under the Nine Hour claim, excluding the compromise ground.

With respect to this question, the Montana Company contends that the court erred in taking from the jury the question of the priority of location of the St. Louis and Nine Hour claims. The court instructed, the jury as follows: “Accordingly, for all purposes of this case, it must be considered that all the ground within the limits of the survey for patent above referred to, except the compromise ground, as you may determine it to be, was within the St. Louis claim, as located, and that such location was prior in time to any location of the dol'embmt or its predecessors in interest of the.

Nine Hour claim.” The court also refused to submit the question of priority of discovery to the jury. It is contended by the Montana Company that by its answer to the St. Louis Company’s third amended and supplemental complaint it denied and put in issue the priority of discovery and location of the St. Louis claim, and the question was one for the jury. It is true that by its answer the Montana Company denied upon information and belief that the date of discovery and location of the St.

Louis claim was prior to the discovery and location of the Nine Hour claim; but it admitted that the date of the recording of the notice of location of the St. Louis claim was prior to the date of the recording of the location notice of the Nine Hour claim; and that the patent was issued for the St. Louis claim prior in date to the patent issued for the Nine Hour claim. But the notices of location of both the St. Louis and Nine Hour claims were attached and made a part of the answer. In the notice of the St.

Louis claim, elated September 28, 1878, the locator states that “he has discovered a vein or lode within the limits hereby located.” In the Nine Hour claim the notice is that the locator has discovered and located a claim on the 26th day of July, 1880. In the replication of the St. Louis Company, the allegations of the answer relating to the location and discovery of the two claims as here alleged were admitted. But in turning to the answer of the Montana Company we find that there is a further denial that the St..

Louis claim at the time of its discovery and location embraced the compromise ground, and as to all veins apexing wholly or in part within the compromise ground, and particularly with respect to the vein described as the Drum Lummou vein, it is alleged that the discovery and location of the Nine Hour claim was prior to the acts of the predecessors of the St. Louis Company in discovering and locating that vein in the St. Louis claim. This is not a denial that ihe discovery in the St.

Louis claim, and the location of that claim exclusive of the compromise ground, was not prior to the discovery in the Nine Hour claim; and the allegations respecting the compromise ground show that it was not the intention of the Montana Company to put in issue the question of the priority of the St. Louis clairn either in discovery or location over the Nine Hour claim, excluding the compromise ground. Under this state of the pleadings, if we exclude the compromise ground, as we must under the decision of the Supreme Court, there was no issue as to priority, either in the location or discovery of the St.

Louis claim. It was admitted that the St. Louis was the older claim, and under the law it took the entire width of all veins apexing within the claim including the Drum Lumiiiou vein to the extent that that vein apexed within the St. Louis claim, and this despite the fact that a portion of the width of the vein at the point of crossing was outside the surface side line of the claim extended downwards vertically. Lawson v. United States Min. Co., 207 U. S. 1, 15, 28 Sup. Ct. 15, 52 L. Ed. 65. The court was therefore right in withdrawing from the jury the question of priority of discovery as between the St.

Louis claim and the Nine Hour claim excluding the compromise ground. It is objected that the court admitted immaterial, irrelevant, and incompetent testimony, introduced on behalf of the St. Louis Company, for the purpose of establishing the value of ores taken from the vein in: question by the Montana Company from under the Nine Hour claim. The ore sued for had been taken and carried away by the Montana Company. The St. Louis Company was therefore unable to prove the value of the specific ore taken, but it was allowed to show the value of similar ores taken from the same vein near by.

The evidence appears to have been the best the St. Louis Company could secure. If the value of the ore thus ascertained was incorrect and excessive, the presumption is that the Montana Company, having taken the ore and disposed of it, had the means to show its actual value. It is objected that the court instructed the jury that, if they believed that the St.

Louis Company was entitled to” a verdict in its favor, it was also entitled to interest upon the amount found from the date of conversion of the ore by the Montana Company, if there had been conversion, to the date of the rendition of the verdict by the jury at the rate of 8 per cent, per annum.

It is contended that the action was the local action of trespass, and not the transitory action of conversion; that interest as an element of damages is the creation of statute, and, as there is no statutory provision for interest in the state of Montana as an element of damages in an action of trespass, it was not recoverable. No claim was made for damages because of injury to the land, but judgment was demanded for the value of the ore which it was alleged had been converted by the Montana Company. The case was triedl upon the theory that it was an action to recover the value of ore converted.

In the case of United States v. Ute Coal & Coke Co., 158 Fed. 20, 85 C. C.

A. 302, Judge Sanborn, referring to a claim that the cause of action in that case was one for trespass upon land, and not a cause of action for the conversion of coal taken from the land, said: “The cause of action for trespass upon the land, and for the taking from it and conversion of coal, timber, or other personal property wherein the only damage alleged is the loss of the value of the personal property converted, is the same in legal effect as a cause of action for the conversion of the personal property.” This rule of action is fully supported by Stone v. United States, 167 U. S. 178, 182, 17 Sup.

Ct. 778, 42 L. Ed. 127. The statutes of Montana provide as follows (Rev. Codes, § -.6068): “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this 'Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” Rev. Codes, § 6071, is as follows: “The detriment caused by the wrongful conversion of personal property is presumed to be:

(1) The value of the property at the time of its conversion, with the interest from that time. * * * ” The claim that interest was not recoverable as a matter of right, but rested in the discretion of the jury, is answered by the case of Drumm-Flato Commission Co. v. Edmisson, 208 U. S. 534, 28 Sup. Ct. 367, 52 L. Ed. 606. It is further contended that, if the St. Eouis Company was entitled to recover interest, the Montana Company was also entitled to interest on its counterclaim. The presumption is that it did recover such interest.

The court instructed the jury that in no event could it find for the Montana Company upon its counterclaim, for an amount in excess of the sum prayed for in its answer, “together with interest thereon at the rate of 8 per cent, per annum from the date of extraction to the date of the verdict.” This was equivalent to an instruction that the Montana Company was entitled to interest on any sum the jury might find in its favor on the counterclaim, providing such finding should not exceed the amount prayed for in the answer. It is objected that the court permitted the St.

Eouis Company at the close of the case on the part of the Montana Company to amend its pleadings so as to substantially change the cause of action. The amendments referred to changed the allegation of the complaint as to the crossing of the foot wall of the Drum Eummon vein from the 133-foot plane to a point further south designated as the 268.6-foot plane. As the jury found that all the ore extracted by the Montana Company was from that part of the vein north of the 133-foot plane, the amendment did not prejudice the case of the Montana Company in any particular.

An amendment alleging that the compromise ground had always been a part of the Nine Hour claim had the effect of making the allegations of the third amended and supplemental complaint as amended conform to the testimony relating to the title to that ground and as alleged in the original amended and supplemental complaint; but, as has already been stated, the compromise ground has been eliminated from the case so far as the St.

Eouis Company’s rights are concerned, and the allegations concerning it have no bearing upon the issues as now presented, except as the ownership of the ground forms the basis of the Montana Company’s counterclaim. These amendments may therefore all be treated as having been irrelevant and immaterial. We find no error in the record. The judgment of the Circuit Court is therefore affirmed.