Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1882-05-17
mo. I,OS0.I
SUPREME COURT DECIS
r. II. Rose ct al. Appellants, VS..
Tho Richmond Mining Company
of Nevada. Respondent.
OPINION BY LEONARD, c. j.

OH tne 10Th day OF March, 1882, the
Judgment of the District Court herein, in
favor Of the defendant, was reversed by
the Supreme Court and the cause re.
manded, with instructions to the District
Court to render a proper Judgment in
favor of the plaintiffs and against the de-
PENDANT, in compliance with the views OK.
pressed by the Court in its opinion, for all
that portion of the mineral lode in contro.
yersy, westerly of the westerly line of the
Tip Top claim, designated upon the dia.
gram inserted in the opinion, by the line
A G; and with further instructions to
order the injunction against defendant as
to this portion of the lode to be made per
petual, and a judgment in favor of plain.
tiffs for their costs.
Subsequently, the mandate Of the Su-
preme Court was obeyed by the District
Court, and the Judgment thereupon be-
came final.
The defendant, the Richmond Mining
Company of Nevada, being DESTROYS Of
taking the cause to the Supreme Court of
the United States by writ Of error which
shall operate as q supersedeas and stay
execution, makes application to me as Chief
Justice, for a citation and for the approval
OF such security as is required by law upon
the issuance Of the same.
By reason of the extreme views enter
tanned by counsel for the respective par
ties, in relation to the amount of security
that ought to be required in order to rem
der it ''good and sufficient" five witnesses
were examined upon each side, and from
the testimony it becomes my duty to
fix the amount of security that must be
given,
The statute Il U. s. Stat. at Large, IS;
Desty's Fed. Procedure, Sec. 1,000) pro-
vides that Every Justice or Judge signing
a citation on any writ Of error shall, ex-
cept in cases brought up by the United
States, or by direction of any Department
Of the Government, take good and sufi-
cient security that the plaintiff in error,
or the appellant, shall prosecute his writ
or appeal to effect, and, if he fail to make
his plea good, shall answer all damages
and costs, where the writ is a supersedeas
and stays execution, or all costs only where
it is not a supersedeas as aforesaid" The
statute also provides that writs of error
from the Supreme Court to a State Court,
in cases authorized by law, shall be issued
in the same and under the same
regulations, and shall have the same effect,
as if the judgment or decree complained of
had been rendered or passed in a Court Of
the United States. The Twenty-ninth Rule
of the Supreme Court Of the United States
is as follows: "Supersedeas bonds in the
Circuit Courts must be taken with good
and sufficient security, that the plaintiff
i'll error or appellant shall prosecute his
writ or appeal to effect and answer all
damages and costs if he fail to make good
his plea. Such indemnity, where the
judgment or decree is for the recovery of
mnnar mot ntharwica conpraI rpuSt no fnr
the whole amount of the Judgment or de-
cree, including just damages for delay,
and costs and interest on the appeal; but
in all suits where the property in contro-
versy necessarily follows the event of the
suit, as in real actions, replevin, and in
suits on mortgages, II X # indemnity
in all such cases is only required in an
amount sufficient to secure the sum recov-
cred for the use and detention of the prop
erty, and the costs of the suit, and just
damages for delay, and costs and interest
on the appeal"
l must be controlled by the foregoing
statutes and rule, and further on shall
have occasion to ascertain their mean
ing when applied to a case like the one in
hand.
The Court below found, and such were
the facts, that each party was in actual
possession of the portions of the lode in
dispute; that is to say, to the extent Of the
underground workings of each, and that
in addition, plaintiffs had such possession
of the entire ground as is given by the
doing of all work required by law to hold
mining claims. The Court also found
that at the time of the trial the Albion
Consolidated Mining Company was the
owner of the Uncle Sam claim, the ground
in dispute, and that this action was prose-
cuted for its benefit by the consent of the
plaintiffs.
Under the Judgment entered, the AL
bion Company is entitled to thep possession,
in law and fact, to all the ground in dis
pute. 1t is entitled to all the benefits and
privileges which an absolute ownership and
right of possession give. Its rights sre to
work the ground unmolested as it may
wish, and to appropriate the proceeds OF
its labor and expenditure. II the entire
possession is refused by the defendant, IT
is entitled to such process as will enable 1t
shaw vs.. Thompson, 4 Johns, Ch., G0si 5
Daniels Oh. Pr, and Proc, 1862; Her
man on Ex., 500, ct seq; Freeman on Ex.,
Secs. 469-470; Montgomery vs.. Tut, II
CAL, 1907
Until such rights are enjoyed, the judy
ment is not executed, and if a supersedeas
is obtained, their enjoyment will be post
poned until there shall be a final decision
the Supreme Court of the United States.
Co%nceding that the Albion Company has
the actual possession of a part of the
ground in dispute, still the right of pos
as to any part is denied by a prose-
cution of the writ of error, and if defen-
dant's claim of error is correct, the Albion
Company, in law, is a trespasser to the ex-
tent of its possession. Whether, under
,uch circumstances, that company could
work upon any part of the ground
dispute, after supersedeas, if no injury
should be done thereto, I shall not stop to
INQUIRE; but that it would not be permit
ted to do permanent injury to the property
I have no doubt. Should 1t develop new
ground and open new ore bodies, it could
appropriate the ores. The object of
The supersedeas is to keep the property
substantially as it is, until judgment OF
The Supreme Court. For all practical pur-
,oses, then, the effect Of the supersedeas
will be the same as to all parts OF the dis
,uted ground. If the Richmond Company
lad actual possession of the whole claim,
! supersedeas would undoubtedly enablelt
20 retain the same. 1t will enable that
mpan 10 retain all posooeeion ~"
las, and, as before stated, the Albion
company will not be permitted to do per-
lament injury to the estate.
Under such circumstances the Richmond
Company cannot complain if the Albion
ceases work, even though 1T may
continue, where no injury can result in
ase the present Judgment should be re-
.ersed or modified. Surely, l cannot pre-.
ume the Albion Company will make any
developments during the tendency OF the
writ of error. since it is not in law bound
o do SO; and il any should be made, the
york would be done at the risk OF q total
oss if there are good grounds for the
At any rate, should the Albion Com.
amy expend money upon the disputed
round in case of supersedeas, it would
AXE all risk OF its total loss upon itself.
;uch being the case, the Richmond Com
,any cannot complain if I act upon the