l6:(} decision which the rigbt,of nQ<prel;lident prqperty in [upon .'!l statute of .the, state of. Co,lorad(). which. ,rtight;j)f judgment, the statute referred to theact,re:Iating .to persoIJ,al, injuries, and d/ilmages therefor. the damage perSons entitled to hllyft ,p;llDages for the death o{ ,.any person do not stand in right The st::ttutedoes,lnot give them the action, as heirs of mo,neys '¥!'lcovered are not ,the estate of the or perllQP they are recoY(ll'edby the individuals named in tbe n()t as a matter of inheritance from the',Cleceased perso'n" ,So far as I have been able to investigate the Qlle1i\tiop, '. the rule of, applied to the Pennsylvania statute; and it ought to be said here,. as that living in ,foreig1t)p.nds b,ave no right rof acpionunder the statute. The de· murl1er.wi,ll ,be sustained, ;ang. the suit dismissed, at the cost of the plaintiffs. . , .' , .' . ., , rJ;hesame or\ler will be in No. 3,828, John Fitz· The arethesame in each case.
in
,DURANT MIN. CO, v. PERCY CONSOLo MIN. CO.
, I ;
Court of i , :. . : I , " · : ··
Eighth Circuit. March W;1,899.) 'No.: ;1.,116. ',' : ,:
1.
J.
2. I
. :While 'one who wlUfl1l1y and' intentionally takes ore fr9m another's mine istl6tel'ltltlM to deduction from the value thereof fot' labol' bestowed, where rthe·tllking was iIjlldvertent, ,and under an honest .mistake as to the ow¥eVilhiIl of the land, only the y.aIue of the property in ltsorigi, ',nai place,cflrn be , SAME":,,BoUNDARY. LINE-J)I1;;COV;E);Ry-NEG:[,IGFlNCE.
OF DAlIfAGES.
<:
1.,
.
'
Where i a' :trespasser on' lanll' of anoth,er falls to use ordinary care to ascertllin :Uie·'botindat·y line between. his land and that '011 'which he entered,. the j,ury, may infer that the trespass was intentional. as. to defendant's intent in. ta\i:ing ore from an· other's land adjoining his mine was conflicting, an instruction that, if defendant 'had. beennegiLgent in. faillngto discover the location 0'1' his property, .lie 'wascstopped' to saY' that'the taking was not willful or in· ' tentional,wall erroneons. . '
3.SAME-!NsTnUCTIQNS. I i , )Vhere the ,evidence
4. 5.
REVIEw,.,..ERR,OR-PnESUflJ;PTION OF PREJUDICE.
AneDroIWlljls instructiOn ispreJ;;umed to be prejudicial,and is not cured py a correqt direction in,another part of the charge. . . "
SAME.
!i.
A general verdict on"an erroneous instruction cannot stand, where there are twotheol'ies on wbich the jury might have foulld it, under oue (}f which ,the instruction waS harmless, while under thei.other it was elTol., siuce error is ,presumed to ,be I?rej\ldicial, .and itcannqt 1:)e said on which tlteory the verdict was' based. MINES AND . an action for taking ote from another's mille, evidence that an unknown person,after the commenc'etnent of the suit, took out ore, was not trespass to have been willfui.
In
DURANT MIN. CO. V. PERCY COKSOL. MIN. CO.
167
In Error to the Circuit Court of the United States for the District of Colorado. The La Salle and the Stilwell lode mining claims joined each other. The Durant Mining Company, a corporation, the plaintiff in error, and the owner of the Stilwell claim, removed some ore from a stope many hundred feet beneath the Rurface of the earth, which proved to be on the line between the two elaims, so that about 43 per cent. of the ore ta1l:en from it was on the La Salle claim. The Percy Consolidated Mining Company, a corporation, and the owner of of the La Salle claim, sued the Durant Company for willfully and intentionally extracting ores from its claim of the value of $50,000. The Durant Company denied that it had taken any ore belonging to the Percy Company, df'IJied the charge of willful trespass, and alleged that, if it had extracted any ore from the La Salle claim, it had done so inadvertently, and in the honest belief that it was mining on its own ground. On the trial it was conceded that: the Durant Company had taken valuable ores from the La Salle claim, but it insisted that it had done so believing that it was its own ore, and the evidence on the (;ucstion whether the trespass was inauvertent or intentional was so confiicting that it would have sustained a verdict either way. The jury found' a general verdict for the defendant in error for $11,431.25, anu the testimony relative to the value of the ores removed disagrees to such an extent that it is not possible to determine from the verdict whether the trespass was willful or innocent. It is the judgment upon this verdict that has been removed bY,the writ of error.
CharlesJ. Hughes, .Jr., for plaintiff in error. W. H. Bryant and William O'Brien (C. S. Thomas and H. H. Lee, on the brief), for defendant in error. Before CALDWELL, SAKBORN, and THAYER, Circuit Judges. SANBORN, Circuit Jndge (after stating the facts as above). One who unintentionally, and in the honest belief that he is lawfully exercising a right which he has, enters upon the property of another and removes his are, his timber, or any other valuable appurtenant to his real estate,.js liable in damages for the value of the are, timber, or other thing in its original place, and for no more. He may limit the recovery of the owner by deducting from the value of the ore at the mouth of the shaft the cost of mining and transporting it to that point; and from the value of the timber at the boom, the cost of cutting, hauling, and driving it to that locality. But one who willfully and intentionally takes ores, timber, or other property from the land of another must respond in damages to him for the full value of the property taken,at the time of his conversion of it, without any deduction for the labor bestowed or expense incurred in removing and prepadng it for the market. It is the duty of everyone to exercise ordinary care to ascertain the boundaries of his own property, and to refrain from injuring the property of others; and a jury may lawf\llly infer that a trespasser had knowledge of the right and title of the owner of the property upon which he entered, and that he intended to violate that right, and to appropriate the property to his own use, from .his reckless disregard of the owner's right and title, or from his failure to exercise ordinary care to discover and protect them. Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398; Benson M. & S. Co. v. Alta & S.Co., 145 U. S. 428, 12 Sup. Ct. 877; Cheesman v. Shreeve, 40 Fed. 787; Mining Co. v. Turck, 17 C. C. A. 128, 70 Fed. 294, 301; Whitney v. Huntington, 37 Minn. 197, 33 N. W. 561;
168
93 FEDERALREI;"ORTER.
King ,v. Merriman, 38 Minn. 47, 35 N. W. 570; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 86, 89; St. Clair v. Milling Co., 9,,0010. App. 235, 47 Pac. 466; Dyke v. Transit Co, (Sup.) 49 N. Y. Supp. 180; Hartford Iron .Min. Co. v. Cambria :Min. Co., 93 Mich. 90, 53 N. W. 4; Warrior Coal & Coke Co. v. Mabel Min; Co., 112 Ala. 624', 20 South. 918; Ross v. Scott, 15 Lea, 479; Hilton v. Woods, L. R. 4 Eq. 441; Refining Co. v. Tabor, 13 Colo. 41, 21 Pac. 925; 'Cnited Coal Co. v. Canon City Coal Co., 24 Colo. 116, 48 Pac. 1045. ::No controversy has arisen over these principles. They are stated to <;all t() mind the rule,S by which the questions presented must be answered. The complaint here is that the court below went further, and instructed the jury that, if the plaintiff in error was guilty of negligence in discovering the line between its claim and that of the defendant in error, they not only might, but must, find that its trespass was willful and intentional. The portion of the charge against which this criticism is leveled reads in this way: "In addition to what I said on the subject of knowledge, if there was a lack of dilIgence on the part of the defendant company in ascertaining the location of the line, upon that you may say- That is, if there was negligence in ascertaining the fact, you may say they should be charged with the value of the ore at the month of the pit, without reference to the cost of mining and transporting to,tlmt place. It is the duty of one who carries on work in his own territory t.l ascertain the location of his lines. That duty is so strong upon him, if he fails in that respect he is not at liberty to say that he was negligent, or that it was. not willful or intentional, and therefore he ought not to be charged more heavily than would be the case if he had exercised proper care and diligence, to ascertain where his line is."
Now every trespass upon the land of another that is not willful and i:ntentional necessarily implies some degree of negligence (Coal Co. v. 49 Md. 549, 559); and a rule which makes the negligent failure to discover the line of the property trespassed upon conclusive evidence·, of intentional trespass removes all room for the defense of inadvertelilce and honest mistake. The logical and necessary effect of that portion of the charge of the court ,which we have quoted was to deprive the trespasser of the defense that its acts were unintentional and innocent. It declared that the mere failure to ascertain the true line between the claim of the Durant Company and that of the Percy Company was the legal eqUivalent of knowledge of that line, and of willful intent to cross it, and was conclusive proof of a willful and intentional trespass. If this were a true statement of the law, there never could be an inadvertent and unintentional. trespass, for the essential attribute of such a trespass is an innocent failure.to know the true line. If there can be no innocent failure, if every failure to find the line is evidence of a. willful and intentional trespass, then every' trespasser is "guilty of a willful trespass, and liable for the full value of. the property which he takes, at the time of its conversion, without any deduction for the cost of removing and preparing it for the market. But this is not the law. The only issue in this case,aside from that which arose from the varying estimates of the amount of ore taken, audof the cost of mining it, was whether the taking was willful or inadvertent. This was an issue upon which, under the rules. and authorities to which we have referred, the de-
DURANT MIl!>. CO.
v.
PERCY CONSOLo 1l'IIN. CO.
lG\J
fendant in error was entitled to the finding of the jury. The testimony upon it was voluminous and conflicting, and the effect of the charge was to entirely withdraw it from the consideration of· the jury. We are unable to escape from the conclusion that this was a serious error. It is probable that the mistake in this charge arose from the inadvertent application of the rule relative to the ascertainment of the line between properties in actions of trespass or ejectment, in which the lowest measure of damages only is sought, and therefore intent is not material, to this case, in which a higher measure is sought, and the intent became the chief element of the contrpversy. Where no claim is made for larger damages than the value of the ore or other property taken, in its original place, it is of no importance whether or not the trespass was mistaken. It is no defense in such a case that the defendant carelessly or otherwise failed to discover his line. He is liable for the lowest measure of damages in any event, whether he knew where his line was or not, and whether his trespass was willful or innocent. In such a case the charge here criticised would not have been improper. Maye v. Yappen, 23 Cal. 306, 307. But in the case at bar it erroneously withdrew the chief defense in mitigation of damages which the plaintiff in error had interposed, and upon which it was entitled to the verdict of the jury. It is contended that this error is cured because in other portions of the charge the court submitted to the jury the question whether the trespass was willful or inadvertent, and instructed them that their deCision of tliis question would determine whether, inestimating the damages, the cost of mining and transporting the ore should be deducted from its value at the mouth of the shaft. There are two answers to this argument:. In the first place, the court had already told them that they must find that the trespass was willful, since it had informed them that, if the plaintiff in error had failed to discover its line, it could not be heard to say that its trespass was not willful, and it was conceded on the trial that it had failed to find the true line; and, in the second place, if this had not been so, the two portions of the charge would have been inconsistent and contradictory, and it would be impossible to determine which the jury followed. The presumption is that error produces prejudice, and the vice of an erroneous instruction is not extracted by a correct direction upon the same subject in another part of the charge. Railway Co. v. Needham, 3 C. C. A. 129, 147, 52 Fed. 371, and 10 U. 8. App. 339. It is said that the error probably produced no prejudice, because there is sufficient evidence to sustain the verdict on the theory that the trespass was not intentional. But, on the other hand, there is ample evidence to sustain it on the ground that the trespass was willful. The verdict is general, and we cannot tell on which basis it was rendered. A general verdict on an erroneous instruction cannot stand, where there were two theories on which the jury might have found it, and under one of which the instruction was harmless, While under the other it was error, because the presumption from error is prejudice, and the court cannot say upon which theory the verdict stands. Lyon, Potter & v. First Nat. Bank, 29 C. C. A. 45, 85 Fed. 120, and 55 U. S. App. 747, 757; Coal 00. V. Johnson, 6 O. C. A.
170'
93 FEDERAL REPORTER.
148, 56 Fed. 810, and 12 U. S. App. 490, 495; Railway 00. v. Needham, 11 O. O. A. 56, 63 Fed. 107, and 27 U. S. App. 227, 237. , The conclusion at which we have arrived renders it llnnecessary to consider th(J other assignments of error in this case. We may remark, for the guidance of the court below in the subsequent trial of this' that the evidence that some ore was taken' from the La Salle m'fnebysome unknown person at some time after the commencementdHbiS $uifdbesnot appear to us to be competent evidence of the evil intent of the plaintiff in error in committing the trespass charged iri the complaint. .' ' There wasno'error, in our opinion, in refusing to instruct the jury to dedfict fJ;'om the value of the ore the expense of running the cross· cuts or tM'turinelin order to reach it. The judgment is reversed, and the case is rematlded to the court below with instructions to grant a trial.
--'-'----
UNITED STATES v. DAVENPORT et aI.
(Circuit Rouft, ,D. ?onnectlcut. March 28, 1899.) No. 410. OFFICElRS-.AC';l'ION 'AGAINST BoNnSMEN..:....PLEADING.
" , ' Whllre, a complaint agajIist the bondsmen of a public officer for over· , charge' and, unlliwful expenditure sets out fully the Items thereof, a vel" ments as to an adjustment Of his ,accounts by his official superior, whereby found due, and a reference to the account as stated a by SuCh superior, and his reports In relation thereto, on file in court, will ,, ' ; be stricken out. ." , i , " , :'
!
'Actidti' by the United States against Theodore Davenport and oth· Defendants move to strike out pal,'t of the: complaint. , O. W. 06m,stock, for 'J;I.St()4dard, focI,' defendants. I ' ,..I." , 1
"TOWNSEND, 'District Jndge. This, is' an action brought by the United to recover $5,000, of one Tp.eodore Davenport, on account of breaches of duty, .by him of post-office buildings and ,disbursing clerk of United ,States, The breaches alleged consisted in unlilwfulexpens arid overchargel'l for salaries; fuel, furniture, lS painting, and' rdiseeU:1n'eous'items. ParagraphS 12 and 13 of the eornpIlii'nt as follows: ' :,,;',ii2(The siiid Theddol'e DavenPort did,durlng the term Of his !;llti4 office as superintendent of buildIngs and disbursing: clerk, ;tectHve fr@In 'the' plaintiff, and did oVeTchjU'ge, and unlawfully, and without Rutllority Or .right" and in Violation, of the said obligatory, and the eon.ditio ti.lereof', ....ns set.. for,tb., .in paralil:J;ap.h Qne.. of .thIs complaint; of the Inoneys .. .Qq.he plaintiff, expend, overcharge, withhold, and unlaWfUlly keep and retain ftdrti the p1aintiff,"'ori account of sale b·f old material, in '1891, $24, aJldon acco'i1tltof miscellaneous expenditures and Items prior to the sixth day of March. in the year; 1893,$34, as by tllereportEi of.. the first COlllPtroUer Of the treasury numbers 300,141, ,65,438, 65,523,65,524,,65,471,65,302, 65,503; 65,521, l,81W2> 00,969, wllfclJ. aI:e filed in court with this complaint, and made' a part thereof, . It fu'lly'appears;sald sumsamouilting, in aU, to. $3,810.5li·