O'Keiffe v. Cunningham

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. An opinion was delivered in this case at the April Term, 1857, and a re-argument had at the succeeding July Term. The judgment was considered erroneous in consequence of the admission of certain testimony. The defendants’ counsel, in answer to the objection to the admission of this testimony, insisted that no exception had been made by the plaintiffs in the Court below. This was his only answer to the objection. The counsel had overlooked the fact that an exception had been taken. But upon the re-hearing we became satisfied that the testimony in reference to the other flume was admissible for the purpose ot showing that the gravel and other retuse matter, (called, in the technical language of the mines, tailings,) deposited upon the [590]alleged claims of plaintiffs, were placed there, at least in part, by other parties, with whom defendants had no connection.

This leads us to consider the other points made by the plaintiffs.

The Court refused to give the third and eighth instructions offered by plaintiffs. The third instruction was properly refused; and the refusal of the eighth, relating to the measure of damages, did the plaintiff no injury, as the jury found a general verdict for the defendants.

The only remaining point is, that the Court erred in refusing to grant a new trial, upon the ground that the verdict was against law and evidence.

The testimony, as spread upon the record, is voluminous, and yet concisely stated. The facts of the case were complicated ; and, at first view, there would seem to bo a conflict of testimony. We have given the record the most patient consideration, and we can not see any material conflict in the testimony of the different witnesses, as to tho main facts.

The plaintiffs introduced evidence to show that they owned two sets of claims—the upper and lower; the first located in 1851, and the second in July, 1855. In August, 1855, Clark commenced the construction of a flume, called Clark’s Flume, near the lower end of the second set of claims. He was forbidden by tho plaintiffs, and thereupon plaintiffs and Clark subsequently entered into a written article, by which it was agreed that Clark should have the privilege of entering upon the mining-claims of plaintiffs, and erect upon and over the same a water-flume, so as to carry the water and tailings flowing from.Clark’s claims, located above, across the claims of plaintiffs, but not to interfere with the working of the same, in any manner, and not to deposit thereon any tailings. Clark afterwards sold his flume to defendants, who entered under the purchase.