Maye v. Tappan
Before: Crocker
Synopsis
Week two mining claims adjoin each other, and the owners of one claim work across the dividing line and take away gold-bearing.earth from the other claim, the fact that they did so in ignorance of the location of the dividing line, is no excuse or justification, and it is error to admit evidence of such ignorance as an excuse for the trespass or in mitigation of damages.
In an action of trespass to recover damages for injury to a mining claim, the right of the pláfetiffs to recover the damages which they have actually sustained, is not affected by the fact that the trespass was not willful in its character.
The fact that plaintiff tells defendant that he did not know where the line ran, but that defendant need not be uneasy, for he was not near the lino, and had fifty feet still to run before he could reach it, does not amount to a license or permission from plaintiff for defendant to work on plaintiff's ground; nor does it estop plaintiff from recovering the damage he has actually sustained.
When a party has the means of ascertaining a boundary line, he is guilty of neg-' ligence in not ascertaining its location.
Where a trespass is committed by entering upon and taking away the gold-bearing earth from a mining claim, and the same is not done willfully or with a malicious intent, and the action is brought for an injury to the land itself, the true measure of damages is the value of the gold-bearing earth at the time it is separated from the surrounding soil, and becomes a chattel.
In estimatiug the damages, the expense of separating the earth from the gold'after it is moved to the place of washing, is to be deducted from the value of the gold.
If, however, a demand is made for the possession of the gold after it is separated from the earth, and an action is then brought for the conversion of the chattel, the measure of damages would be the value of the gold detained.
Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
This is an action to recover damages, in the sum of $2,000, which the plaintiffs allege they sustained, by reason of the acts of the defendants, in entering upon the mining claim of the plaintiffs, and taking away gold and gold-bearing earth of that value. The [307]case was tried by a jury, who found for the plaintiffs damages in the sum of fifty dollars, for which amount judgment was rendered, and the plaintiffs appeal therefrom, and from an order refusing a new trial.
The appellants contend that they were entitled to a judgment for the sum claimed in their complaint upon the pleadings. It does not appear, however, that they made any motion for judgment on the pleading in the Court below; and it is doubtful, therefore, whether the question can be raised in this Court for the first time. But the answer of the defendants was sufficient to raise issues for trial, and this objection, therefore, is not well taken.
It appears that the plaintiffs and defendants are the owners of adjoining mining claims, which are worked by deep under-ground tunnels. The fact that the defendants mined over the dividing line between the claims, and worked out a portion of the mining ground of the plaintiffs, is not disputed; but they contend that it was not done willfully or intentionally, but in ignorance of the locality of the dividing line, between the claims, under the surface; and that they were led to work over the line, by the representations of one of the plaintiffs, as to its locality, in relation to the tunnel and the place they were working. On the trial, the plaintiffs objected to all evidence showing that the defendants were ignorant of the location of this dividing line; but the Court overruled the objection, and permitted several of the defendants to testify to those facts, and this is assigned as error. The plaintiffs, in this action, were not entitled to vindictive or exemplary damages, but could only recover the damages they had actually sustained by being deprived of the gold or gold-bearing earth taken by the defendants from their mining ground. It follows, that the question whether the defendants acted willfully and maliciously, or ignorantly and innocently, in digging up and taking away the gold-bearing earth, is entirely immaterial. The defendants took property belonging to the plaintiffs, and have thereby injured them to a certain amount; and that amount is made no greater nor less by the fact that the act was done without any malicious intent. The right of the plaintiffs to recover damages, or the amount of the damages to which they may be entitled, is not affected by the fact that the trespass was not
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