MEASURE OF DAMAGES-Exemplary-Excessive. Continued.
action of trespass by the owner of the land so intruded upon, the jury
will be warranted in giving punitive damages. (SCOTT, J., dissent-
ing.) Illinois R. R. Co. v. Ogle,
123. The rule of damages on breach of covenant for seizen is, gener-
ally, the consideration money, with interest, if the grantee has taken
nothing by his deed; but if by subsequent conveyance the title is per-
fected in the grantee, he can recover but nominal damages. Hartford
Co. v. Miller,
124. Breach of contract of lessee to sink oil well.—Held, that under
the lease, the well, if dug, would have been P.'s, and the product his;
and that C. could only recover nominal damages for the breach,
and not what it would cost to sink such a well. Chamberlain v.
Parker,
125. Where the next of kin are collateral relatives of the deceased,
who have not been receiving from him pecuniary assistance, and are
not now in a situation to require it, only nominal damages can be
given; but where they were dependent on the deceased for support,
they are entitled to compensatory damages without regard, in either
case, to the distance of the relationship. Quincy Co. v. Hood, 12, 148
126. Dependency on deceased for support.-In the case of collateral
kindred it will be admissible for the defendant to controvert the fact
of dependency upon the deceased for support; and in case of a father
as the next of kin, to show that he was not entitled to the services of
his minor child, in reduction of the damages. Id.
127. Contractor interfered with by owner.-In trespass by a con-
tractor under obligations to produce a certain output of ore, against
the owner, for opening a new mine or shaft, it is error to instruct the
jury that the proper measure of damages was such profits as the
plaintiff would have realized by raising the ore which was raised by
the defendant, at the rate per ton which the plaintiff was entitled to
receive under his contract. Shaw v. Wallace,
14, 421
128. Idem-Nominal damages.-Unless the acts of defendant inter-
fered with the beneficial working of plaintiff's mine, they were en-
titled to nominal damages only. Id.
129. Distinction between penalty and liquidated damages. Wolf
Creek Co. v. Schultz,
3, 95
130. Penalty-Liquidated damages.-The law prefers to treat a
sum payable as a penalty rather than as liquidated damages, because
then it may be apportioned to the actual loss. Bell v. Truit, 8, 649
G. Damnum Absque Injuria.
131. The erection of a dam so as to flood junior claims above, held
to be damnum absque injuria. Stone v. Bumpus,
4, 278
132. Watermen and miners.-The notion that, as between ditch
owners and miners using the water of a stream in the mineral regions
MEASURE OF DAMAGES--Damnum Absque Injuria. Continued.
of the State for mining purposes, the law tolerates and winks at some
uncertain and indeterminate amount of injury by the one to the prior
rights of the other, is without any substantial foundation. Hill v.
Smith,
1. Supplementary statute falls with repeal of original act. Ellison
v. Jackson Co.,
4, 559
1. Intermediate vested estate.--Merger never takes place when it
would have the effect to destroy the intermediate vested estates in third
persons. Logan v. Green,
2. Second lease of term already let.-When there is an outstanding
lease and the reversioner makes a new lease to third persons, to com-
mence immediately, this is a vested estate; and although the lessees
could not take possession of their term, inasmuch as the possession
belonged to the first lessee, they would have a concurrent lease, and be
entitled to all the rents issuing out of the term of the first lessee, and
on the expiration of that term they could legally enter and possess the
land for the residue of their own term. This estate would prevent a
merger when the first lessee became entitled to the possession. Id.
3. Idem-Purchase of reversion by termor lets in intermediate lease.
Id.
4. Merger of lien by assignment of stock.-Where the holder of a
lien upon stock became owner by assignment from the debtor, thus
holding both the lien and the title to the security, the lien merged in
the higher right, and as to the third parties he must be regarded as abso-
lute owner. Strout v. Natoma Co.,
10, 330
5. A note is not merged in an agreement which does not defeat a
right of action thereon. Creighton v. Vanderlip,
7, 172
MEXICAN GRANT.
1. Notice of official survey unnecessary and its secrecy is unim-
portant. Boggs v. Merced Co.,
10, 334
2. Difference between official and private survey-Fraud. Id.
3. Confirmed by U. S. patent carries the minerals. Ah Hev. Crip-
pen, 10, 367; Moore v. Smaw,
12, 418
4. Does not include mines of gold and silver. Moore v. Smaw,
12, 418
5. Cession by Mexico of Mariposa tract included mines. Id.
MILL SITE.
1. Mill and mill privileges-Transfer of possession.-Right to wa-
ter acquired by appropriation may be transferred like other property,
and the transfer of a mill carries its water privileges. McDonald v.
Bear River Co.,
1, 626
2. Water--Use for mill purposes.-The interest in water acquired
by one who locates on the bank of a stream and appropriates the waters
of the same for machinery, is not property in the water as such, but
the right to the momentum of its fall at the point of location, and to
the flow of the water in its natural course above. McDonald v. Askew,
3. Sale of water by mill owner.-A person who has built a mill on a
stream and appropriated a part of its water to propel machinery, does
not lose his prior right over one who has claimed the water below him
for mining purposes, by a sale of his interest in the water of the stream
to be used in a ditch above. Id.
4. Insufficient location of water right by posting notice without user.
Robinson v. Imperial Co.,
5. Location of mill site, not incident to ditch location.—A notice of
appropriation of a right of way for a water ditch is not a notice of the
appropriation of the land upon the sides of it, nor of a mill site in con-
nection with it. Id.
6. Appropriation of water.—The location of a mill site is not an
appropriation of water for purposes of the mill site. Id.
MINERALS.
1. Coke, construed as the "produce of a mine." Bowes v. Ravens-
worth,
2, 352
2. The term “minerals" embraces everything not of the mere sur-
face used for agricultural purposes; the granite of the mountain as
well as metallic ores and fossils are comprehended within it. Griffin
v. Fellows,
3. Minerals defined-" Stratum of stone"-"Fossils." Rosse v.
Wainman,
10, 398
4. The word minerals limited to the product of mines, excluding the
product of quarries. Darvill v. Roper,
5. Minerals defined by the mode of getting-Freestone.-In a con-
veyance the grantor reserved all "mines or seams of coal and other
mines, metals or minerals," with liberty to get the same, etc.
Held, that the term minerals included freestone but that the grantor
had liberty to get the freestone only by underground mining and not
by working in an open quarry, Bell v. Wilson,
10, 415
6. Minerals must exist in available quantity in order that the land
be classed as "mineral lands." Alford v. Barnum,
10, 422
7. Estate in minerals, a fee simple and partible. Canfield v. Ford,
11, 201
8. Title in U. S.-It is a conceded doctrine that mines of precious
metals "belong to the eminent domain of the political sovereignty."
Gold Hill Co. v. Ish,
11, 635
"similar
9. Sulphur-Similar produce.-Whether sulphur was a
product" under a contract based particularly upon the expectation of
finding petroleum--not decided. Escoubas v. Louisiana Co., 12, 344
10. Where the land was known to contain minerals of some char-
acter although the proper name and real value were unknown to the
parties, a reservation of "all" minerals, although used in connection
with a particular mineral, held to be an unqualified exception of all
minerals in the reservation in contention. Gibson v. Tyson,
13, 72
11. All ores, treated as all “known" ores. Shoenberger v. Lyon,
13, 88
12. Minerals in place are parcel of the freehold and may form a
separate corporeal hereditament which is the subject of a distinct in-
heritance. Williams v. Gibson,
13. It is only when minerals are severed from the soil that they
become personal chattels. Id.
1. U. S. railroad reservations-Quicksilver.--The court assumes,
the contrary not being alleged, that lands containing cinnabar or quick-
silver, are mineral lands within the meaning of the act of Congress
granting lands to the Western Pacific Railroad Co. McLaughlin v.
Powell,
2. A railroad grant patent is admissible in evidence without first
proving that the land is not mineral. Id.
3. Reservation of mineral in U. S. grant.--In ejectment against a
defendant in possession of a portion of land described in a railroad
patent, which reserves mineral lands, the defendant is entitled to show
that the demanded premises are mineral lands, and therefore not parcel
of the grant. Id.
4. A patent which excepts from the transfer "all mineral lands,
should any be found to exist in the tract described," does not convey
lands which are mineral.
5. The returns of the surveyor are not conclusive as to the mineral
character of lands. Gold Hill Co. v. Ish,
11, 635
6. Mineral lands included in grant for school purposes.-The act of
Congress of March 3, 1853, which granted to the State of California
the sixteenth and thirty-sixth sections of public lands for school pur-
poses, was designed to and did include mineral lands. Higgins v.
Houghton,
13, 195
1. Receiver appointed to bottle the water-Receiver appointed
on bill praying injunction. Whitney v. Buckman,
10, 428
MINES.
1. Mines are land.-The mineral right, after severance from the
surface title, is land. Caldwell v. Copeland,
1, 189
2. California precedents.-The decisions of the Supreme Court of
California, referred to as establishing a system of common law upon
the questions peculiar to the occupation of the mineral lands upon the
public domain. Mallett v. Uncle Sam Co.,
1, 18
3. The common law doctrine that he who possesses the surface owns
to the center of the earth, is greatly modified. One party may be en-
titled to occupy the surface, and another the mineral veins running
under the same land. Bullion Co. v. Cræsus Co.,
5, 255
4. Mine unopened is no mine.—A mine is not properly so called till
it is opened; it is but a vein before. Astry v. Ballard,
8, 316
5. Underlying seams constitute a single mine. Spencer v. Scurr,
10, 388
6. Expressio unius-Poor rate.-The express mention of coal mines
in the statute, 43 Eliz., is a virtual exclusion of all other mines, and
MINES. Continued.
therefore other mines are not ratable to the relief of the poor. Rex v.
Sedgley,
10, $90
7. Distinction between mine and quarry.—Whether an excavation
be a mine or a quarry is a question of fact; a stone working, where
the stone is won by sinking the shafts perpendicularly to the stratum
which lies considerably below the surface, and the stratum is worked
by roads and gate heads, and the stone raised to the surface by machin-
ery, or carried underground to a tunnel, in the same way as coal and
iron ore are usually got, is a stone mine. Id.
8. The word "mine” defined.—The term "mine," when applied
to coal, is equivalent to a worked vein, and if it be worked, a tenant
for life may pursue it to the boundaries of the tract. Westmoreland
9. Coal vein underlying different tracts-Waste by life tenant.-
Where there are two different tracts, separated by an intervening
tract owned by another, with a vein extending beneath them, the
opening on one tract does not extend to the other, and the tenant for
life mining under the unopened one is guilty of waste. Id.
10. The distinction between a mine and a quarry is that in a quarry
the surface is removed, but in mining the beginning only is on the
surface and a roof is left overhead. Darvill v. Roper,
10, 406
11. The word mines implies underground workings. Bell v. Wilson,
10, 415
12. Parol evidence.-The terms of a reservation in a conveyance
are not to be limited by what was ordinarily gotten by a miner in
the particular county at the time of the execution of the deed. Id.
13. Corporeal hereditament.—An estate in mines is a corporeal
hereditament. Canfield v. Ford,
Lands, tenements and hereditaments, defined. Id.
15. Royal mines-Various nations. Moore v. Smaw,
16. Conveyance of royal mines in Mexico.-Under Mexican law the
interest in the royal minerals was conveyed under the mining ordi-
nances by registry of discovery in case of new mines, and by de-
nouncement in case of abandoned mines. Id.
17. Contractor opening new mines.-A contract by which a party
is authorized to raise ore out of the mines on a designated tract, at a
stipulated price, confers no authority to open new mines or to sink
new shafts or slopes, except so far as such shafts or slopes may be nec-
essary to the proper and successful working of the mines already
opened. Shaw v. Wallace,
14, 420
18. Mines not implied, where specially mentioned in contract relating
to the land. Id.
19. Opened and unopened mines.-If a lease of land be made for life,
or for years, in part of which there is a mine open, the lessee may dig
it. If the mine was not open at the time of the lease made, the lessee
can not open it. Saunder's case,
15, 109
20. Mines mentioned.-If a man hath mines hid within his land,
and leases his land and all mines therein, the lessee may dig for
them. Id.
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