BURROW'll. KANSAS CITY, FT. S. &: M. R. CO.
Anderson v. Moe, 1 Abb. (U. 8.)299; U. 8. v. Williams, 1 Cranch, C. C. 178; Cummings v. Akron, etc., Co., 6 BIatchf. 509; Dennis v. Eddy, 12 Blatchf. 195; The Syracuse, 36 Fed. Rep. 830; In re Williams, 37 Fed. Rep. 325; The Vernon, 36 Fed. Rep. 113 ; Eastman v. Sherry, 37 Fed. Rep. 844. And such has always been the practice in this district, as an examination of the records of the court show. Nor does it make any difference whether the witness was in fact called to testify, or whether he was sworn or not, provided always, of course, that his attendance was procured by the party to the suit in good faith, and that his testimony was deemed material to the issues involved. Clark v. American Dock & Imp. Co., 25 Fed. Rep. 641; Hathaway v. Roach, 2 Woodb. & M. 63. The first question here, then, is one of fact as to the residence of these witnesses. They know where i they reside, and have sworn to the facts before the clerk, and upon their oaths have proven the number of miles traveled by them respectively from their places of residence in Missouri to Memphis, Tenn., where the court is held in which the case was tried. Opposed to this is the affidavit of plaintiff that "she is informed and believes" that the witness Cocker is "a resident and citizen of the county of Shelby, and city of Memphis, and that he made his hOme in Memphis," running as a Pullman car porter between here and Springfield, Mo., and did not come to Mem· phis as a witness to testify on the trial, but, being here, simply remained at defendant's request. Counsel for defendant makes oath in this regard that said witness "made his home and headquarters at Kansas City, Mo.," and "that his attendance was procured at Memphis upon application to the superintendent of the Pullman Palace Car Company at Kansas City; and that said Cocker was sent here from Kansas City to Memphis for the purpose of testifying." The inevitable conclusion from this proof, therefore, is that Cocker's residence was Kansas City, as he himself swore, and plaintiff's information and belief cannot, of course, avail against his oath, nor against the positive affidavit of the defendant's counsel as to the manner in which his attendance as a witness was procured. The only evidence here as to the "place of residence" of the other three witnesses is the oath of each to the fact before the clerk. But plaintiff makes affidavit that they "are and were all employes of defendant, and run as train men on defendant's railroad from and to Memphis, Tenn., from and to Springfield and Kansas City, Mo.," and "supposes they were requested by defendant's solicitor to attend, and, coming to Memphis on their regular duty as trainmen on defendant's road, remained voluntarily over the days of trial to attend the court at the request or command of their employer or defendant's solicitor." The affidavit filed for defendant says "that the witness Caudle was not at that time an employe of the defendant," but admits that Bowers and Sullivan were its employes. Whether any of the witnesses were in the employ of either plaintiff or defendant is wholly immaterial. They have claimed their fees here under the statute, and substan· tiated their claims by their respective oaths. What plaintiff "supposes" cannot avail her. without more, and therefore the conclusion is that the place of residence of these three witnesses is as they '·have respectively sworn.
Butbeeause the amounts paid these ,witnesses (except one) rellpootively exceed the statutory fees to which ·they would be entitled' had·they come a. distance of 100 miles or less, it becomes necessary to decide the question whether or noteosts are taxable for full'mlleage of a witness w,ho travels from his place of residence without' the state, more than 100 miles distant from the court. 80 far as the practice of the court should control this question either· way, if at all, it has. been in favor of allowing such costs for mileage tbe entire distance actually traveled by the witness. I have requested the .clerk to .examine the records of the coUl"t in this respect;' 'and, going back as far as 1883,---a period of 10 years,-he finds that this has been the invariable practice of the federal courts of this district, as shown by some 30 instances in civil suits duringthatpenod; and no case has been found where witnesses havebeen.otherwise paid, or costs'therefor otherwise taxed against the unBuCOOS$ful;party. But this practice is now challenged, and it i. urged that It should not be at variance with the statute, or a proper cOnstruetion' of it, if. there be any doubt a.s' to its meaning; and an exanlination of the reported cases shows, perhaps, a greater diversity 'of decision among the federal judges upon this question ofJcosts than upon almost any other. In the first circuit the Cail 88eem'to be uniform; since Judge Story, that costs should be taxed fot full mileage of the witness coming from beyond the district, no matter what' the distancetl'aveled. Prouty v. Draper, 2 Story, 199; Whipple v. Cumberland, etc., Co., 3 Story, 84; Hathaway v. Roach,2Woodb. & M. 63, 73; U. 8. v. Sanborn, 28 Fed. Rep. 299, per' Gray, J., in 1886. In the second circuit the contrary rule is just as well established where costs for mileage fees of such witnesses are only taxed against the losing party for 100 miles, irrespective of the distances in excess of that which the witnesses, ha"e actually traveled. Anon;, 5 BIatch!. 134; Beckwith v. Easton, 4 Ben. 358;8teamship Leo, 5 Ben. 486; Buffalo Ins. Co. v. Providence, etc., Co., 29 Fed. Rep. 237; The Syracuse, 36 Fed. Rep. 830. And such is the well-settled rule in the ninth circuit. Spaulding v. Tucker, 2 8awy. 50; Haines v. McLaughlin, 29 Fed. Rep. 70. In other circuits are the cases 'of In re WilliaIIlS, (S. C.) 37 Fed. Rep. 325; Eastman v. Sherry, (Wis.) Id. 844; Smith v. Railway Co., (Iowa,) 38 Fed. Rep. 321; Sawyer v. Aultman, etc., Co., (Ill.) 5 Biss. 165, all to the same effect, though the last decision was based upon a rule of the court, of long standing, denying costs for the fees of any witness not regularly summoned, regardless of the distance traveled by him. In the seventh circuit in Dreskill v Parish, 5 McLean, 213, 241, it was MId that the fees of a witness hot summoned could not be taxed as costs at all; and such were the' rulings in this circuit in Parker v. Bigler, 1 Fish. Pat. Cas. 285, and Woodruff v. Barney, 1 Bond, 528, 2 Fish. Pat. Cas. 244, decided in 1862, though in the latter case the inference would seem to be that Judge Leavitt's ruling goes to the extent of allowing the taxation of full mileage if the witness be summoned; for he says in the opinion:
"It a witness whose residence is not at the place of holding court is summoned there, he Is allowed mileage for returning to his home, but not tot
BURIWW V. KANSAS CITY, FT. S. &M. R. CO.
coming to the court; lmd,by . a. liber!,! construct1QD of the statute, retu.m travel has been allowed even beyond limits ot the district tor which the court is. held." .
In 1869, Judge Withey held' in Michigan that a witness going voluntarily to a court in that state from his home in New York was "entitled to the per diem of $1.50 and traveling fees from his place of and for returning, provided he actuaJly traveled so far to reach the court," (Anderson v. Moe, 1 Abb. [U. S.] 299;) while Judge Brown, in the same state, as late as. 1888, in the case of The Vernon, 36 Fed. Rep. 113, 115··117, in an exhaustive opinion, reviewing aJl the cases, ruled that the mileage fees of a, nonresident witness could only be taxed as costs to the extent of 100 miles from the place of holding court. As between the witness and the party at whose instance he attends the court, there is no doubt whatever as to the amount he should receive or could recover in a suit therefor. In case of a contract, it would,of course, be the amount agreed upon, and, in the absence of any contract, a quantum meruit, or reasonable sum for loss of time and necessary expenses. And in Spaulding v. T:ucker, 2 Sawy. 50, Judge Sawyer, in ascertaining such sum, says:
"There betng no special circumstances shown to call for a different measure, than to adopt the amount fixed by the act ot congress as the compensation allowed wit· nesses who attend. upon compulsory process."
r know of no better mode of arriving at what is reasonable
And this amount, when ascertained, would be the measure of a recovery of costs in favor of the other party according to the weight of authority_ While it is true that in the courts of the UniOOd States, in cases at law, the oral testimony of witnesses has been the preferred and favored method of proof since the first judiciary act of 1789, and that section 861, Rev. St., taken therefrom, provides that "the mode of proof in the triaJ of actions at common law shaJl be by oraJ testimony. and examination of witnesses in open court, except as hereinafter provided," yet the same originaJ act prescribed a method whereby "the testimony of any witness may be taken in any civil cause pending in a district or circuit court by deposition de bene esse when the witness lives at a greater distance from the place of maJ than one hundred miles," etc. Rev. St. § 863. The un· doubted object of this or certainly one of its principal objects, was to reduce the expenses of litigation, and enable par· ties to obtain in a comparatively inexpensive mode the testimony of witnesses residing at great distances from the place of trial, and often the necessary expense of procuring their attendance in court would be an absolute denial of justice because of the inability of parties to incur such expense, and perhaps the ruin of unsuccessful litigants in answering judgments for enormous .costs, where the other side was able to incur the expenditure. Without reviewing the cases on this subject, and notwithstanding the practice which has obtained in the colll'ts of this district, and which has hitherto been practicaJly unchaJlenged, and in view of the later cases in this and nearly all the other circuits except the first, I am inclined to hold, though with some that
('...osts ca:nonlybe recovered for the fees of a witness in a civil suit within the limit of his compulsory attendance under a writ of subpoena. It need not, of course, be further said that even such fees be recOvered as costs where the successful party has actually settled· with the witness for a less sum, when, of course, only the amoUJlt paid,· or perhaps agreeed to be paid, would be the measure of the· recovery. Let the costs for the fees of these four witneRses, therefore, be according to the principles of this opinion, and it is so.ordered.
TYLER MINING CO. v. SWEENEY et al. (01rcuit Court of Appeal!!, NInth Circuit.
Januar,y 16, 1893.)
The Tyler M. Co. applied for a patent to the Tyler mining claim. The Last Chance M. Co. protested against such application, and brought suit to determine the right of possession to so much of the surface ground as was Included In the conflicting locatipnB of the Tyler and Last Chance clalIns, lUI. $Own upon the diagram In the opinion the court. The Tyler M. 09". after appearihg and· Dla.klng a defense to sald suit, withdrew its open court, and Judgment was entered for the Last Chance M. Co., recitfug the priority of its claim. Subsequently the Tyler M. Co. out from its original location a certain portion thereof, inclUding the portion dese!iped. In said judgment, and thereafter. bJ;Ought an ejectment l!uit embraced insald judgagainst. thl}. Last ·Chance ¥. Co. for. the. grOUild ment. Held, that the judgment in the prior suit was not res adjUdicata as to the priority of the Last Chance location, and that it was conclusive only as to the'rlght of possession to the triangular piece of ground involved in that suit;; I; BAME""'"TP - RIGHT TO FOl<LOW· DIP..,.- ABANDONMENT OF PART OF that the Tyler withdrew its answer in the prlor suit, and al. lowed tl1e Last Chance to obtain judgment therein by default, did not have the efi'ect.ofchanglug the TylE"r locatiOn to :l. five-sided figure, so as to destroy thei pal'all('lism of. theloeatlon, as required by section 2320, Rev. St.; or to preveIj.t the Tyler cOJllpany from thereafter claiming its end line to be at a . let1i Qut· the ground in dispute in the former suit; or to deprive it of the right to follow the dip of its lode beyond its side lines, as provided byiiectlon 2822; Rev. St. A locator of a mining claim may abandon a portion of hiS orlglnal location without forfeiting any rights he may have to the balance of. the claim.
i· . ·.. .
JUDGMENT-J,'tES JUDICATA-CONFLICTING MINING CLAIMS.
SAME'-LoDE OROSSING SJDE LINES.
Under R(lV' St §§ 2320, 2322, the owner of a., mining claim located appr()xlmately lengthwise of a lode, and having parallel end lines, may, it the apex passes out of the claim· across a side line thereof, follow the dip beyond the side line, the same 8S it ano original end line had been drawn at such crossing parallel to the other end line. King v. Mining Co., (Mont.) 24 Pac. Rep. 200, approved.
SAME-LOCATION OF CLAIM ACROSS THE LODE.
. When a claim is looated along .. lode, and its owner's right to follow the dip beyond the ]fnes conflfcts with the right of an owner of a claim