Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-02-01

Spect to the common propert that would
Justify the defendant in excluding the
plaintiff from entering into possession
and working said mine, it has not been
cited and we know Of no such lule.
The contention Of appellant that the
damages awarded by the jury are Excess
sive and vindictive and wholly without
evidence to support them, is the only re-
naming contention that we regard re-
quirss special consideration in this opin-
ion. Counsel asserts That there was no
proof of the amount of ore that Paul
would have mined, tne number Of tons
that he could have removed, the number
Of men that he would have employed, or
could have employed pretitably; the cost
Of removal at that tune, the value of the
ore then known TO exist, or the profit per
ton or i'll gross
There was evidence to the effect that
the plaintiff was practical miner of
many years experience III practical min
ing; that mining was his business: that
at the time he took his lease, the mine
was in such condition and such bodies of
ore had been and were tlien exposed III
the underground workings, by other les
LAS to make 1t reasonably certain that
a large amount of ore could lie extracted
thercfrom; that il alpearet. TO to reason
ably certain from the e1tent of these orc
bodies III said working and their dip,
that they continued downward, out and
beyend who're the defendant WAS work
ing, ard could be tappsd by ii periendic-
uiar shaft if sunk fry OF fifty feet deep
from the surface; that the plaintiff in
tended and proposed t. sink such shaft
and work the said or bodies below the
level on which the defendant was work
in. and raise the ore through the shaft;
lease on the - day OF June, 1867, on said
mine for the term of one Year, sunk a
Shaft hfty-two feet deep, at the place
where The plaintiff intended to silk one,
struck he said ore bodies and mined
there;rom 100 tons Of ore during the
term Of their leAss, with tive men work
ing. four or five months, and six men
working the balance Of said term. Be
sides. they took out sixty-tive tons from
the lsvtl above, or l2l5 tons in the aggre-
gate.
From the above facts the jury might
reasonably have found that there was
reasonable probability that the plaintiff
could and would have mined from 1000
to 1900 tons of orc during the term of his
lease if he had been permitted to work
as he proposed and intended to do.
1t appears that the ores of the mine
were valuable only for the lead and sill
yer they contained, that sixty-six per
cent " ~s lead, and that there were y or
Ii ounces of silver per ton of ore. That
on the market price Of lead depended
mainly the value Of tho ore; that the
plaintiff could have sold all the ore he
could have mined in 1886 at the rate of
$3.50 per hundred pounds of lead con-
tanned therein. 1t was agreed between
the parties at the trial that when the
market price of lead was $3.50 the ore
was worth 1881 per ton, over and above
cost of shipping to market. less the
expense of mining ard sacking the ore;
that it required IA sa ks to sack q ton of
ore and that the sacks cost seven cents
apiece and miners wages were $500 per
day. If the lessees in 1887 prosecuted the
work every day, the wage. eff their men
would be S6,030.00 If it required sutfi-
cient sacks to sack all the ore before any
shipments were made their cost would
, be $4,000. 1t appears from the evidence
that two men could sack ten tons per
day. Their wages for sackins 1915 tons
, would be $4,000. These three items OF
costs Of mining and sacking of l2l5 tons
, are figured at the highest possible costs
that could have been incurred according
to the evidence. 1t is net probable tina
the men worked every day in the year OF
/ that it was necessary to have on hand sc
great . number Of sacks to sack the ere
But taking these items as the necessary
costs Of extracting and sackiDg the III;
tons Of ore from g., 22s3 90, the gross yielc
at 1854 per ton, and . profit Of 1881 .O(
; is shown.
3 tilted the jury in finding that the plaintiff
( rs a practical miner Of long experience il
= mining, whose business was that Of min
= ing, could and would probably have Ok
: tractsd such quantities Of ore fren sail
ore bodies during his said term, if tn
: defendant had not excluded him there
n from, and sold the same at such marke
: price then existing as would hav
= yielded him q net profit even create
than the sun allowed him for damages
j. The only value = mine has to Jesse
! thereof is the profits arising fren hi
II working tho same, and when he is wrong
5 fully excluded and prevented from sue
4 working, his loss consists in the loss q
profits that he would have made but 70
such exclusion.
q 1.-THE adjudged cases very clearly she,
h that, in actions to recover for damage
4 resulting from q tort, q more liberal rul
At in favor of the plaintiff prevails than i
"a actions to recover for = less sustaine
# from q breach Of contract: yet, in tn
e latter class of cases, the overwhelmin
h weight of authority supports the do
IA trine that profits, whom not entirely spe
10 ulative, may be taken into account Ql
m Ind. 555 Suprd.) And il is only n
L. I'D