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that the Richmond Company had taken out about 300 sets of timbers N. W. of said A C line.” Mr. Wescoatt, upon being called in rebuttal, testified as follows:

“I meant just what I said in the letter. It did not refer to ore taken where there were no timber sets put in. In the estimate, 272 sets that absolutely existed; then I reduced the Gooseneck, made 24 sets, and 5 sets from the thirteenth, made 301 sets. There was ore taken from other points-Fire Drift, Fort Probert, and end of Albion main level, Jumbo Cave, and some other places of which I had no means of estimating. In counting the timber sets, reduced them to full sets; made 301 full sets; didn't count the parts of sets as full sets."

This testimony, although severely criticised and commented upon by appellant's counsel, is not contradicted. Appellant's witnesses all testified that the sets of timbers were not full sets; but none of them said that if reduced to full sets there would not be 301 full sets. They did not give, or pretend to give, the number of sets, independent of Wescoatt’s testimony, but simply stated that the sets of Richmond timbers were not full sets. Returning to the question of the value of the ore, the statement shows the following estimates, made by practical miners in the employ of the Richmond Company:

Thos. J. Pearce: "I should judge that the ore in ore body B would assay from $35 to $10 per ton." John G. Jury: "I think ore body B would assay on the whole about $10 per ton.” S. Longley, a foreman in the mine: “I worked in ore body B two months. * * I am well acquainted with the ore in the Richmond mine. I can generally estimate about what the ore will assay. I think that ore would assay in the neighborhood of $10 per ton, in gold and silver. I think that would be a good average.”

South-East Upraise. Respondent's testimony: Robinson testified “that there was 793 tons of ore in that ore body.” Appellant's testimony: Rickard testified that the upper part of this ore body “was taken out by the Richmond; there was 520 tons in that;" after deducting waste and moisture “there would be 298 tons net."

Fire Drift. Respondent's testimony: Robinson testified that the ore was extracted from this place in August 1880; he estimated the amount at 300 tons, and thought it "would assay up to $80 per ton and 30 per cent. lead.” Appellant's testimony: Rickard said: “I know the place called the Fire Drift. We took out a few sets there. I expect it is correctly represented here in the model,—about 300 tons. After deducting one-third waste and 14 per cent. moisture there would be 172 tons.”

Gooseneck. Respondent's testimony: Wescoatt testified that “the ore from the Gooseneck was taken out some time in the early part of 1881." Robinson estimates the amount at 495 tons. Appellant's testimony: Rickard testified as follows: “In the Gooseneck, the Richmond took out 256 tons gross; after deducting one-third for waste and 14 per cent. for moisture there would be 143 tons.” W. J. Rataelick, upon his cross-examination, said that the ore in Goose

neck "was pretty rich ; would assay from $60 to $70 per ton.” Lew. Dunkle: "I think the ore in the Gooseneck would assay $40 or $50

per ton.”

* *

Fort Probert. Respondent's testimony: Robinson estimated the amount of ore taken out by the Richmond Company at 615 tons, and said: "The ore in Fort Probert was very high grade ore; the remnants of the ore that was left was very high grade ore; went high; $75 per ton in gold and silver. I do not remember about the lead in that. Appellant's testimony: Rickard testified that "Fort Probert was a natural cave. I don't think we ever took any ore out of there.” Upon his cross-examination he said: “I don't think the Richmond took out any ore from what is called Fort Probert. My recollection is none was taken out. I may be mistaken about that. My impression is, though, there was none taken out; wouldn't swear one way or the other.” Longley said: “We took some ore out down at thirteenth chamber; I think from Fort Probert about 200 tons. It was taken out in 1880.” Making the deduction for waste and moisture as in the other ore bodies, would leave the amount 105} tons.

Leadville. Respondent's testimony: Robinson estimates the amount of ore taken out at 635 tons, and states its value at $50 per ton and 50 per .

cent. lead.” There is some confusion as to the dates when this ore was removed. Wescoatt testified that the Richmond Company took the ore in the “latter part of 1879 or 1880; November or December, 1879.

We struck Leadville in November, 1879, and it was taken out in December.” Upon his crossexamination he said: “The body of ore in Leadville was discovered in November, 1879, and we started to take it out in December. I think there had been but a few sets taken out by December 26, (29,) 1879. It was all taken out by May, 1880.” Appellant's testimony: Rickard testified that “Leadville was not taken out by us.” Upon his cross-examination he said: “I don't think Leadville was taken out by us. I swear it was not taken out by us.” Longley said: “I can. not recollect definitely how much ore was taken out of there. I think about 150 tons." Reducing this amount as in other ore bodies by deducting the waste and moisture would make 79 tons net.

Jumbo Cave. Robinson testified that 136 tons of ore were “taken out by the Richmond Co.” from this place; but as there is no positive testimony that this ore was taken out before the twenty-seventh of May, 1882, within the time alleged in the complaint, we exclude it.

The foregoing is a fair synopsis of the testimony with reference to the particular ore bodies. There is a great deal of testimony in the statement on appeal as to the working of similar ore from the same ore bodies by the respondent; the samples of ore assayed; the number of cubic feet of ore to make a ton; the size and dimensions of the timbers used in the mine; and other matters tending more or less to corroborate the claims of the respective parties as to the amount and value of the ore. No separate account was kept by the Rich.

mond Company of the number of tons of ore, or its value, removed and smelted by it from the ground west of the A C line.

The testimony introduced by respondent tended to show that the ore in ore body B was of greater value than the ore in other parts of the mine, and that the ore from this place was mixed with ore from uther places by the Richmond company in order to reduce its value. Wescoatt testified that the ore taken out from ore body B "was mixed in the chutes and run into the cars and went down to the furnaces with ores from other parts of the mine,” and that the Richmond Company was "in the habit of taking ore from ore body B at that time and mixing it with ore of lower grade from other parts of the Richmond mine, to make it of an average value.

The testimony offered upon the part of appellant tended to show that the ore from this ore body was of a less grade than the ore from other parts of the mine. Longley testified that the Richmond Company “mixed other ore from different parts of the mine with the ore from ore body B to raise the grade of ore body B.

There was also general testimony given by Mr. Rickard, as follows: "Three hundred sets of timbers will represent the whole amount taken out by the Richmond Company, including waste; 2,150 tons in all taken out by the Richmond Company west of the A C line.”

C line." Upon his redirect examination he said: “In my judgment there was 2,150 tons of ore taken out by the Richmond Company west of the A C line, from the Albion ground. I don't know whether there was any taken from Fort Probert or not. The value of the ore taken was about $40, assay value, per ton.”

Taking the amounts given by him in each of the ore bodies, we have in ore body B, 1,965 tons; South-east Upraise, 298; Fire Drift, 172; Gooseneck, 143; a total of 2,578 tons; and to this, as testified by Longley, 105} tons from Fort Probert, and 79 tons from Leadville, and we have a total of 2,762} tons, as testified to by appellant's witnesses. From this, perhaps, there should be deducted, say 50 tons, (which is a very liberal estimate,) for the amount of ore taken from Leadville prior to the twenty-ninth of December, 1879. This would leave a total of 2,712} tons net. The testimony upon the part of respondent makes about 9,000 tons gross. The deductions for waste and moisture claimed by appellant would leave the amount over 4,500 tons net. Estimating the amount of ore and the value upon the testimony of respondent's witnesses, we have many thousands of dollars more than the amount found by the jury. Estimating the net amount of the ore at 2,712} tons, as testified to by appellant's witnesses, and its value at $40 per ton, as testified to by some of the witnesses for appellant, and the market value at $8.53 per ton, as testified to by Mr. Rickard, we have the sum of $23,136.20; adding the admitted damages of $500, and legal interest for three years, would make a total of $30,727.06, which is $17,477.06 more than the verdict of the jury. Even estimating it at $35 per ton, the

lowest amount named by any witness, and the market value at $5.05, which is the lowest amount named by Rickard in connection with any of his calculations as to the expenses of reducing the ore, and deductions to be made from the assay value, we have the amount of $13,697.28; with damages and legal interest added as abovo, it amounts to $18.456.46, which is $5,206.46 in excess of the amount found by the jury.

These conclusions render it unnecessary to consider whether the district judge, by his criticisms upon the appellant's witnesses, in granting a new trial, exhibited any passion or prejudice; or whether from the testimony it is made to appear that appellant acted innocently and in good faith in removing the ore, or was guilty of such culpable negligence as to make it liable for the gross value of the ore, and some other minor questions argued by counsel.

The verdict of the jury cannot be sustained upon any impartial, rational, or intelligent consideration of the evidence as set forth in the statement on appeal. The order of the district court granting a new trial is affirmed.



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In an action to recover damages for breach of a covenant in a deed for quiet enjoyment, a complaint that alleges that the defendant was not, at the time of making the deed, or at the time of instituting the action, the owner of the land described in the deed, fails to allege a breach of the covenant, and is demurrable. Nash & Kinnard, for appellant, J. M. Morgan. Bettis & Hyde, for appellee, Loughlin Henderson.

HOYT, J. This action was brought to recover damages for a breach of the covenant for quiet enjoyment contained in a deed from the defendant to the plaintiff. The court below sustained a demurrer to the complaint, and rendered judgment for the defendant, and the plaintiff brings the cause here for review, and alleges as error the ruling of the court in so sustaining said demurrer. The only statement of a breach of said covenant was an allegation in said complaint that the said defendant was not, at the time of making said deed, and

the owner of the land therein described. Does this allegation show that said covenant has been broken? It is clearly insufficient under the older authorities; for most of them hold that an actual eviction by process of law only will constitute a breach of this covenant, and the remainder of such cases hold that, while it may not be necessary to show such actual eviction, yet that which is equivalent to such actual eviction must in all cases be alleged and proven. See Waldron v. McCarty, 3 Johns. 471; Kortz v. Carpenter, 5 Johns. 121; Kerr v. Shaw, 13 Johns. 238; Lansing v. Van Alstyne, 2 Wend. 565; Webb v. Alexander, 7 Wend. 285; Greenvitult v. Davis, 4 Hill, 644; Marston v. Hobbs, 2 Mass. 433; King v. Kerr's Adm’rs, 5 Ohio, 155; Booker's Adm’rs v. Bell's Ex'rs, 3 Bibb, 173; Porter's Lessee v. Cocke, Mart. & Y. 48; Fowler v. Smith, 2 Cal. 44; Norton v. Jackson, 5 Cal. 265; McGary v. Hastings, 39 Cal. 360; Williams v. Shaw, 7 Amer. Dec. 706; Cummins v. Kennedy, 14 Amer. Dec. 45; and 1 Es. tee, Pl. & Pr. 500. And it will be found upon examination that the most advanced of these cases have gone no further than to hold that a covenantee may yield to a paramount title hostilely asserted against the title conveyed to him by his grantor, and then avail himself of such a dispossession as a breach of the covenant in question, and may maintain an action thereon for such breach, though, of course, by thus yielding, he places upon himself the burden of proving in such action that the title to which he has thus yielded is in fact a title paramount. And in our opinion the great weight of authority, both ancient and modern, is to the effect that this covenant is never broken until there

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