the apex of that vein is to the north of both, and upon the Andy Johnson and Brush Heap mines. The testimony is very voluminous. As to the first assignment, that the court erred in sustaining the objection to the question asked witness Reay, "If there is a foot wall, then there is a vein?" we think that the objection was properly sustained. Witness had just testified that there was no foot wall. He was not testifying as an expert, and the question demanded an answer to a theoretical supposition, the condition to sustain which had been denied by the wit ness. The second assignment is to the refusal of the court to instruct the jury that if they believed the evidence they should find for the defendants. The two theories which have been alluded to, and upon which this cause was tried, were each supported by the testimony of numerous witnesses; and we agree with the lower court that as to the main points at issue, the existence of a vein and an apex, there was, to say the least, sufficient evidence of the nonexistence of both, not only to justify, but to demand, the submission of the case to the jury. The third assignment of error, that the court should not have permitted the jury to take with them a small model when they retired, because the same had not been admitted in evidence, is not well taken. The model in question had been used by two witnesses to explain their testimony. They were miners who had worked upon the properties in question. They had made the model. and they admitted that it was not a perfect mechanical facsimile of the mines. The court refused to admit it as such, but it did admit it for the purpose, distinctly declared to the jury, of explaining the testimony of the witnesses. Several other witnesses testified to and from it. It was used by both plaintiffs and defendants, and when the jury, retiring, asked for the model, it was given them, and we think properly. The 4th, 5th, 6th, 7th, and 8th assignments are to the submission of special questions Nos. 3, 5, 6, 8, and 9 by the defendants to the jury. We think that these questions were material to the issues, and were properly submitted; and No. 3, which was only to be answered upon an affirmative reply to another question, was unanswered by the jury, as was No. 6. The other assignments of error relate to the charge of the court to the jury, leaving it as a fact to be determined by them whether a vein existed upon the Illinois mine, and whether there was an apex; and as to the law, under the rules of which, as applied to the evidence, they were to determine the existence or nonexistence of a vein and apex. We think that, under the evidence, the court properly submitted the questions as to the existence of a vein and an apex to the jury. as questions of fact to be determined by them; that there was a substantial conflict; v.34P.no.6-35 and that the authorities cited by the plaintiffs (Hyman v. Wheeler, 15 Morr. Min. R. 519; Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. Rep. 481, etc.) do not sustain their contention, when applied to the cause at bar. The evidence in this cause is all to the effect that the shale cap or wall overlying the ground in dispute, eroded or broken on the Illinois, continuing in a semicircular form westward onto the next claim, contains no mineral whatsoever; that the mineral occurs in the lime, and, as some witnesses testify, in a few places between the shale and lime, but not connected with the former. We can recognize the definition of a "vein," as given by Judge Hallett in Hyman v. Wheeler, 15 Morr. Min. R. 519, and still see that the jury in this cause, might, from the evidence, have determined that there was a vast bed, lode, zone, or mass of mineral-bearing lime with no foot wall, and in some localities with no hanging wall, or even cap,-in others, covered with shale, the lime body extending throughout the Illinois, the Calamity, the Andy Johnson, the Brush Heap, and locations south and west of the Illinois, as well as possibly other mines; that this body or mass, zone or lode, of lime, was broken or cut up into fissures, gashes, pockets, veins, etc., and these spaces filled with mineral, deposited by infiltration when the mass was covered with water before or after the shale was formed, or else by sublimation, or even by heat melting the mineral from rock containing it above. In fact, we might accept here either of the theories advanced by geologists and mineralogists as to the formation of the rock or deposit of mineral, and there would yet be nothing to prevent our reconciling that theory with the verdict of the jury in this cause, -that there was neither a vein nor an apex upon the Illinois mine, or at least such a vein as could be followed beyond the side lines of that claim. There may be a contact, and yet no contact vein. The mineral may be exposed at a point upon one claim, and followed continuously under the surface from this point to another property, through an undisputed vein between clearly-defined hanging and foot walls, and still the point at which the mineral is exposed not be the apex of the vein, which may have an apex 10 miles distant, or may have no apex at all. It would be the height of foolishness for a court in New Mexico, with our mineral-bearing lime formation extending with the different mountain ranges from Colorado to Old Mexico, to say that mineral cannot be found in lime at a thousand feet depth or on the surface, with a cap of slate or a contact of porphyry. One of these lime belts, zones, or masses may be mineral-bearing throughout its length and breadth in one certain locality or in various places, and the body, mass, or zone bearing the mineral dip into the earth on all sides under mountains of granite, with no apex to the vein or mass distinguishable to the naked eye, or discoverable by the in genuity of the prospector. The zone or mass may follow the undulations of a broken country down into the valley, and rising over the divides, cutting through, covered by, or overlapping other formations; but until it is broken, and the edge exposed, or some edge or end as a beginning point found, from which it can be followed down at some angle below the horizontal, there is no apex from which it can be followed beyond the side lines of a claim located upon it. These questions were fairly and ably presented to the jury through the medium of instructions evidently prepared with great care, and reflecting great credit upon the trial judge, John R. McFie. We can find no error in the instructions, and none in the refusal to set the verdict aside. We cite Hyman v. Wheeler, 15 Morr. Min. R. 519; Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 6 Sup. Ct. Rep. 1177; Stevens v. Williams, 1 Morr. Min. R. 557; Stevens v. Gill, Id. 576; Mining Co. v. Murphy, Id. 554; Eureka Consolidated Min. Co. v. Richmond Min. Co., 9 Morr. Min. R. 587-590. Judgment below affirmed. FREEMAN and SEEDS, JJ., concur. LEE, J., (dissenting.) This was an action of ejectment to recover possession of certain mining ground in the Black Range mining district, county of Sierra, in this territory, by parties holding the title to the Calamity claim, against parties holding the title to the Illinois mining claim, which claims are adjoining each other. No dispute was made as to the title or right to possession of the surface ground of either claim. The defendants in the court below filed a special plea in which they admitted the entering upon the lands of the plaintiffs, but justified such entry by setting up, substantially in the language of the United States mining laws, that the entering by them upon the land of the plaintiffs was made at a great depth below the surface of the earth, and was made while pursuing a vein, lode, or ledge of mineralbearing rock, which had its apex within the lines of their mining claim, and which so far departed from the perpendicular in its course downward as to pass out of the side lines of their mining claim, and to enter the lines of the Calamity claim, the property in dispute in this case. The issue thus made by this plea was the one upon which the case was tried, the defendants assuming the burden of proof, and relying upon the accepted proposition that the owner of a mining vein covered by the superficial lines of his claim may not only pursue that vein perpendicularly within those lines, but may, when the vein passes beyond the side lines of his claim or survey, pursue that vein outside of a line drawn vertically down from the superficial side lines, as far as the vein may extend. There does not appear to be any reversible error in the ruling of the court below, without it was in refusing to instruct the jury to find for the defendants, or in refusing to grant a new trial, which must depend upon the question whether the evidence supports the plea of the defendants; and this involves the construc tion that is to be given the words "rein, lode, or ledge," as used in the United States mining laws. The existence of the conditions that are required to constitute a mineral vein, lode, or ledge, as used in the acts of congress, is a question of fact, to be determined by the jury. But after the existence of the facts in the case is established by testimony as to whether those facts thus proven constitute a mineral vein, lode, or ledge, under the United States laws, is a question of law. to be determined by the court. This must necessarily be so, as that which, under the statutes, in such cases, constitutes a vein. lode, or ledge, contitutes title, and as to what constitutes title is a question of law. By the testimony of witnesses, the existence or nonexistence of the facts is established. and then it is for the court to determine whether the facts thus established constitute title, within the meaning of the acts of congress, as construed by the supreme court. In the case of Mining Co. v. Cheesman, 116 U. S. 534, 6 Sup. Ct. Rep. 481, that court says that up to that time it had never given a clear definition of those words, and, quoting from Judge Field's opinion in the Eureka Case, 4 Sawy. 302, says as follows: "It is difficult to give any definition of this term. as understood and used in the acts of congress, which will not be subject to criticism. A fissure in the earth's crust, an opening in its rocks, and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to a lode, in the judgment of geologists. But to the practical miner the fissure and its walls are only of importance as indicating the boundaries within which he may look for, and reasonably expect to find, the ore he seeks. A continuous body of mineralized rock lying within any other well-defined boundaries on the earth's surface, and under it, would equally constitute, in his eyes. a lode. We are of opinion, therefore, that the term, as used in the acts of congress, is applicable to any zone or belt of mineral reck lying within the boundaries clearly sep arating it from the neighboring rock." They also approve Judge Hallett's definition in Stevens v. Williams, 1 McCrary, 488, where in he says, "In general, it may be said that a lode or vein is a body of mineral or a mineral body of rock, within defined boundaries, in the general mass of the mountain." but finally adopted as its own the definition given by the court in the case then under consideration, in its charge to the jury, by saying, "We are not able to see how the judge who presided at the trial of the case could have better discharged this delicate task than he has in the charge before us, to which the exceptions are taken; and we mineral body, and the second to the boundaries.” here give, verbatim, that part of It relating | cept that the first gives prominence to the to this point." We therefore may take the quotation as being the definition adopted by the court of last resort upon the question. The quotation referred to is as follows: "Upon the evidence before you, these parties are to be regarded as owning the surface of the land by them respectively claimed, and all that rightly goes with the surface, under the law. No question is presented as to the right of the plaintiff to the lime location. Holding by patent from the government, the plaintiff must be regarded as the owner of that claim, and all lodes and veins existing therein. The statute gives the owner of a lode the one who may locate it at the top and apex-the right to follow it to any depth, although it may enter the land adjoining; and, if the lime location was made on a lode or vein which descends from thence into the Smuggler location, the right of the plaintiff to follow the lode into the Smuggler ground, and to take out ore therefrom, cannot be denied. Thus, the principal question for your consideration is whether there is a lode or vein in the lime location which extends from that claim into the Smuggler claim. If a lode is found in that claim, all the evidence tends to prove that the top and apex of such lode is in that claim. There is no room for controversy . on that point. To determine whether a vein or lode exists, it is necessary to define those terms; and, as to that, it is enough to say that a lode or vein is a body of mineral or mineral-bearing rock within defined boundaries in the general mass of the mountain. In this definition the elements are the body of mineral-bearing rock and the boundaries. With either of these things well established, very slight evidence may be accepted as to the existence of the other. A body of mineral or mineral-bearing rock in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such a body, and to the extent of it, boundaries are implied. On the other hand, with well-defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure, and if in such fissure ore is found, although at considerable intervals and in small quantities, it is called a 'lode' or 'vein.' To maintain the issue on its part, the plaintiff must prove that a lode, as here defined, extends from the lime to and into the Smuggler claim. Reverting to that definition, if there is a continuous body of mineral or mineral-bearing rock extending from one claim to the other, it must be that there are boundaries to such body, and the lode exists, or if there is a continuous cavity or opening between dissimilar rocks, in which ore in some quantity and value is found, the lode exists. These propositions are correlative, and not very different in meaning, ex Therefore, in the consideration of this case, we are to give to the words "vein, ledge, or lode," as used by congress in the act upon which the defendants rely for their right to enter upon the land in question, the meaning as defined by the supreme court; and, considering the act as thus defined, the entire evidence in the case clearly brings the defendants within the requirements and provisions of the act. It is true that witnesses on the part of the plaintiffs testified that there is no vein on the Illinois claim; but in answer to the question, "Why do you say there is no vein?" they answer, "Because there are no two walls there," and then proceed to testify to the exact state of facts which, under the rulings of the supreme court, would bring it within the provisions of the act. To ilustrate, a Mr. Cox, perhaps the strongest witness on the part of the plaintiffs, testified as follows: "Question. Now, in your judgment, as a miner, to this jury, will you say whether or not the lime underneath is a wall? Answer. It is not a wall, but a mineral ledge, a mineral vein, or zone, and the Illinois mine is pitched on it. Q. Do you call it a wall to the contact, then, leaving mineral vein out? A. Well, I suppose you would call it a wall. Q. Well, then, is it your judgment that there are two walls on this contact? A. There is a lime and shale. Q. There are two walls. Now, what have you to say about mineral? Did you ever see any mineral between those two walls? The witness: On the Illinois? Yes, sir. A. I saw a little mineral in one place. The lime was 20 feet perpendicular here. Q. Now, at that place where you saw the mineral between those two walls, would you call that a vein? A. No, sir." The assertions of witnesses that there was or was not a vein, ledge, or lode, as claimed, are to be considered only of such weight in evidence as their opinions are entitled to as experts, and when made in connection with their testifying as to the facts, and they are subject to be strengthened or overthrown by them. When a witness gives his opinion, and his reasons for it, and his reasons prove incorrect, his opinion necessarily be comes of no weight. This witness says that it was not a vein because there were no two walls there, and on cross-examination he says, "It is a mineral ledge, a mineral vein or zone, and the Illinois is pitched on it." The first two words are the exact words used in the act of congress, and the other, "zone," has been interpreted into it by the supreme court, covering all the requirements to bring the mine in question under the provisions of the act. And thus the entire testimony in the case is uncontradicted to the effect that there is a continuous vein, ledge, lode, zone, or belt of mineral-bearing rock existing from one claim to another; and in such case the supreme court holds, "It must be that there are boundaries to such body, and the lode exists." It therefore follows that if the apex of such a body of ore is on the claim of the party following and claiming the same, and if such vein, ledge, lode, zone, or belt extends downward vertically, so far departing from a perpendicular line as to pass the side lines of such claim, such departure is authorized by the act of congress, and the ore belongs to the party following it. "Or if there is a continuous cavity or opening between dissimilar rocks in which ore in some quantity and value is found, the lode exists." It is admitted by all the evidence that in this case there is a contact between the shale and lime,-rocks of a dissimilar character,-and that in the contact mineral of value is found. Therefore, according to the ruling of the supreme court, as above laid down, the lode must exist. There being no conflict in the evidence as to either of these propositions, I think the court should have instructed the jury to find for the defendants, or granted a motion for a new trial, and therefore I cannot concur in the conclusion reached by the majority of the court. 1. A complaint alleging the sale to defendants of plaintiffs' right, title, and interest in and to certain personal property, and seeking recovery of part of the purchase money, is not defective for failure to define plaintiffs' right of ownership in the property. 2. The allegation of the complaint that defendants took possession of the property under the contract by which plaintiffs sold and delivered to them their right and interest therein, is not open to the construction that defendants took tortious possession thereof. 3. Possession of personal property having been taken pursuant to a sale, it was not necessary that the agreement be in writing. 4. Defendants having taken possession of property according to an arrangement for its purchase made by one of them as the representative of all, would tend to show authority to bind them as a firm, or at least a ratification. 5. A verdict for a certain sum, and "interest" from a certain time, is for interest to be computed at the legal rate. 6. A judgment will not be reversed by reason of an allowance by the verdict of excessive interest, where, at the offer of the successful party, the excess was remitted. Appeal from circuit court, Columbia county; Thomas A. McBride, Judge. Action by L. D. Duzan and others against Lincoln Meserve and others. Judgment for plaintiffs. Defendants appeal. Affirmed. W. B. Dillard, for appellants. J. F. Caples, for respondents. LORD, C. J. This is an action to recover the sum of $500 from the defendants, alleged to be due to the plaintiffs on the sale of their right, title, and interest in and to certain mill machinery which was then in their possession under a contract of sale with J. M. Arthur & Co., of Portland, Or. The cause was tried upon the issues joined by the pleadings, and resulted in a verdict and judgment for the plaintiffs. The first ground of error relied upon is the Insufficiency of the facts stated to constitute a cause of action. The complaint alleges, in substance, that on the 9th day of November, 1890, the plaintiffs, as partners, sold and delivered to the defendants, as partners. their right, title, and interest in and to certain personal property, (describing it,) and also the right to use certain buildings, etc., for the agreed consideration of $2,000. That, in pursuance of such contract and sale, the defendants took possession of said property, and agreed and promised to pay therefor the said sum of $2,000 in the manner following, to wit, "To assume and pay a certain indebtedness of said plaintiffs to J. M. Arthur & Co., consisting of a book account and certain promissory notes amounting to the sum of fifteen hundred dollars, and the further sum of five hundred dollars in cash to be paid said plaintiffs by said defendants within thirty days from and after the said 9th of November, 1890." The objection is that the plaintiffs' right of ownership in the property is undefined, and that the allegation, "took pos session," does not assist the averment, as the possession taken might be tortious. We do not think either objection is well taken, although the allegations might be more definitely expressed. The allegation is not intended to convey the idea of absolute ownership, but only of the sale and delivery of the plaintiffs' right and interest in the property of which they are in the possession. The prop erty was mill machinery. The plaintiffs allege that they sold and delivered, for the consideration stated, their right and interest in said property, and that, in pursuance of such contract and sale, defendants took possession of it. We cannot say that possession taken under such contract and sale is tortious. We think, therefore, the complaint stated a cause of action. Other objections relate to alleged erroneous rulings in the progress of the trial. It is claimed that the court erred in overruling the defendants' objection to the testimony of sev eral witnesses tending to show an oral agree ment between the plaintiffs and defendants, on the ground that the price was over $50, and hence that the statute required such agreement to be in writing. The bill of exceptions shows that the plaintiffs made a contract with J. M. Arthur & Co. by which they agreed to pay, and Arthur & Co. agreed to sell to the plaintiffs the property in question for, the sum of $1,500, and that it was deliv ered to the plaintiffs under such contract, It and put into a mill in Columbia county, Or., where it was being operated at the time of the sale by plaintiffs to the defendants. also tends to show that the plaintiffs contracted to sell to the defendants their right and interest in the mill machinery, and also in the buildings, for the sum of $500, with the understanding that satisfactory arrangements could be made with Arthur & Co. for the payment of the amount due them, who, after being made acquainted with the facts, gave an order, of which the following is a copy: "Portland, July 25, 1890. Messrs. Duzan & Kaiser-Gentlemen: For value received, the undersigned has this day assigned and transferred to Lincoln Meserve, William Meserve, Joseph Meserve, Hawley E. Meserve, and James Meserve, partners by the naine of Meserve Brothers, the right to demand and recover from you the possession of all the machinery and personal property intrusted to your care by the undersigned by contract entered into between you and the undersigned on the 13th day of May, 1890, by the terms of which you were intrusted by the undersigned with the possession and care of said property. You will therefore please deliver the possession of said machinery and personal property to said Meserve Brothers, and oblige, yours, respectfully. [Signed] J. M. Arthur & Co." In connection with this order, and executed at the same time, was the following writing: "J. M. Arthur & Co., Dealers in Machinery and Supplies. Portland, Oregon, July 25, 1890. Messrs. J. M. Arthur & Co.-Gentlemen: We are knowing to and cognizant of the agreement between you and Meserve Bros. It is satisfactory to us, and we came up for this special purpose, and they have come also for this special purpose. Yours, respectfully, Duzan & Kaiser." The record discloses that both of sald papers were executed at the same time, and in the presence of the plaintiff Kaiser and the defendants Lincoln Meserve and William Meserve. In view of these facts and the writings, when the defendants took possession of the property, they accepted and received the plaintiffs' right, title, and interest therein, and thus obviated the objection that the agreement was not in writing. Objection is also made to the statement of one of the defendants, while a witness, in regard to the existence of the partnership, and the agreement to pay the plaintiffs $500 for their right and interest in the machinery and other property. The record discloses that the negotiations for the purchase of the plaintiffs' interest in the property were conducted by one of the defendants, and that the agreement to sell for the consideration already named was made with him, as the representative of Meserve Bros., in case satisfactory arrangements could be effected with Arthur & Co. The point of the objection is that no authority is shown in such defendant and witness to bind the other defendants as a firm; but whether this was so or not, at the time of the alleged contract, their subsequent agreement with Arthur & Co., and its ratification by the plaintiffs, and their taking possession of the property, including the interests of the plaintiffs, under such arrangements, tended to show his authority to bind the defendants as a firm, or at least to show their ratification of his authority so to do. The other rulings are substantially covered by the principle involved in this objection, and need no further reference. The last assignment of error is that the verdict is uncertain and indefinite. The verdict is as follows: "We, the jury in the above-entitled action, find for the plaintiff in the sum of five hundred dollars, with interest thereon since November 9, 1890." Interest allowed by a verdict must be computed according to the rate provided by law, when no rate is specified. A failure, therefore, to fix a rate in the verdict, did not invalidate it. It is claimed, however, that the verdict should have been set aside for the reason that interest should have been allowed only from December 9, 1890. The record discloses that, after the defendants filed their motion for a new trial, plaintiffs filed a cross motion, in which they offered to remit the excess of interest, which was allowed, and the excess accordingly deducted. Under these circumstances, the judgment will not be reversed on appeal, when it appears that the error in the amount allowed by the verdict is inconsiderable and ascertainable. judgment must therefore be affirmed. The SHERMAN v. BELLOWS et al. (Supreme Court of Oregon. Oct. 30, 1893.) PUBLIC BUILDINGS-PLACE OF ERECTION-INJUNC TION-SUIT BY PRIVATE CITIZEN. A private citizen cannot bring a suit against a state board to enjoin the erection of a public building at a place other than prescribed by law, unless his burden of taxation will thereby be increased. Appeal from circuit court, Linn county; George H. Burnett, Judge. Suit by D. C. Sherman against A. J. Bellows and others, trustees of the Oregon Soldiers' Home, for an injunction. plaintiff, and defendants appeal. The other facts fully appear in ing statement by MOORE, J.: Decree for Reversed. the follow This is a suit brought by the plaintiff in his own name against the trustees of the Oregon Soldiers' Home to restrain them from purchasing land for a site and locating the Soldiers' Home at Roseburg. The material allegations of the complaint, in substance, are that plaintiff is a citizen, resident, and taxpayer of the state of Oregon; that the defendants are the duly appointed, qualified, and acting trustees of the Oregon Soldiers' Home, and by virtue of their office are charged with the duty of selecting and lo |