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complaint sets up what under the common- tinction between law and equity is not law rules would have been a good declara changed. The relief which the law a ffords tion in trespass on the case, and also asks must be administered through the intervenfor two remedies, to wit: (1) A judgment tion of a jury, unless a jury be waived. The for the sum of $2,000; and (2) that the plain- relief which equity affords must be applied till be decreed to have a prior right to the by the court itself." And the same rule use of the waters of Mineral (reek, and that has been held to be the law in Hiornbuckle the copper company be enjoined from pol- v. Toombs, 18 Wall. (U. S.) 618, 21 L. Ed. luting the waters of said creek. The record 966, IIershfield v. Griffith, 18 Wall. (U. S.) also discloses that a verdict was returned 6.57, 21 L. Ed. 968, and Davis v. Bilsland. by the jury which tried the cause in De- 18 Wall. (U. S.) 639, 21 L. Ed. 969. cember, 1903, while nothing was done about It will be observed that all of these fed. securing the restraining order until March, eral cases were decided before the passage 1906, more than two months after the jury by Congress of the act of April 7, 1874, had passed upon the cause. Indeed, the which expressly saves to a litigant the record does not show that a permanent in- right of trial by jury. It is true that the junction has ever been granted in the case. plaintiff in error quotes in support of his

By section 1868 of the Revised Statutes contention the case of Lynch F. Metropolitan of the United States the district courts of Ry. Co., 129 N. Y. 274, 29 N. E. 315, 15 this and other territories possess chancery L. R. A. 287, 26 Am. St. Rep. 523, and seras well as common-law jurisdiction, and at eral fecleral cases; but the Lynch Case seems one time it was a serious question as to to stand alone, and is, we think, overwhelinwhether a territorial Legislature had the ed by the number of cases which hold to right to adopt a Code of Civil Procedure; the contrary, while all of the federal cases but on April 7, 1971, this right was given cited, except the first, refer to damages as by act of Congress, but attached to it is the to infringements of patents, which class of proviso that by the enactment of a Codle no cases is governed by statute sections 4919 person should be deprived of the right of and 1921, Rev. St. U. S. (U. S. Comp. St. 1901, trial by jury in cases cognizable at common pp. 3394, 3395], providing that damages for law. There is no doubt, as stated above, infringement may be adjudged either in but that the complaint in this case, down to law or equity. The first case cited by counthe prayer for relief, sets up a state of sel for plaintiff in error is that of Barton facts which was "cognizable at common v. Barbour, 104 U. S. 126, 20 L, Ed. 672; law," and which entitled the plaintiff to and, as we understand that case, all that the the right of a trial by jury; and under the court holds is that a receiver of an insolvent acts of Congress just above referred to the railroad, where the decree appointing him Legislature could not, even if it had been provides that he has authority to defend all so disposed, which we do not even for a actions brought against him by leave of the moment intimate, have taken away the right. court, cannot be sued as such receiver in The mere fact that the defendant in error another jurisdiction, unless the order of the united in one complaint the necessary al- court by which he was appointed receiver legations and prayers for legal and equi- for leave to bring the suit be first obtained. table relief does not deprive him of his The true rule seems to us to be that in a right to a jury trial on the legal issues; and

suit for damages, where an injunction is althis has been the holding, and we think so asked, if the suit is primarily for the properly, in nearly all of the Code states. injunction and the right to damages is merePomeroy's Code Remedies, $$ 59, 86; Hill v. ly incident to and dependent upon plainSmith, 27 Cal. 476; Potter V. Froment, 47

tiff's right to the injunction, the court may Cal. 105; Hudson v. Caryl, 44 N. Y. 553; without the intervention of a jury assess Sternberger v. McGovern, 56 N. Y. 12; MC

the damages already sustained; but, if the Pherson V. Featherstone, 37 Wis. 632:

action is brought primarily for the recovery Hughes v. Dunlap, 91 Cal. 385, 27 Pac. 612.

of a money judgment, it is triable by a And the highest federal court has held like

jury, notwithstanding the plaintiff also asks wise in a case very similar to this which for an injunction against the further violacame up from Montana, when it was still

tion of his rights, or an injunction pendente a territory, and its courts were organized

lite. 24 Cyc. 122. under a law about the same as ours. The

2. The next error assigned which we nend syllabus in the case of Basey et al. v. Gal

to consider is that the court below erred in lagher, 20 Wall. (U. S.) 670, 22 L. Ed. 452,

overruling defendant's motion for a continuwhich was decided in 1874, says: "Although ance. The record shows that the complaint the organic act of the territory of Mon

in this case was filed on July 13, 1904. tana common-law and chancery jurisdiction On August 13, 1904, a special answer, in the is exercised by the same court, and by legis

nature of a plea in abatement, was filed, lation of the territory the distinctions be

stating that the name in which defendant tween the pleadings and modes of proce- was sued was not its true name. On Sepdure in common-law actions and those in

tember 9, 1904. answer was filed, and on equity suits are abolished, the essential dis- į September 12, 1904, leave was given to

amend the complaint by correcting the name what they are, we would have to search the of the defendant

defendant by interlineation. The entire evidence and the rulings of the court case appears to have been set for trial on most carefully, and endeavor to ascertain the jury trial list for the June, 1903, term which questions and answers the plaintiff in of court, for a motion was made to strike error objected to, and even then we might the cause frol:1 the jury trial docket, which : not select all of those which were regarded motion on June 30, 1905, was overruled, and as harmful by its counsel. It is a well-seton July 6, 1905, the case was again set in tled rule of this court that we will not reopen court for trial for the second Monday | view alleged erroneous rulings of the trial of the next ensuing term of court-i. e., the court upon the admissibility or nonadmissiDecember, 1903, term. On December 6. bility of evidence, unless they are specifical1905, motion for security for costs was filed, ly pointed out. In the case of Anderson v. and on the 10th of the same month such Territory, 1 N. M. 213, 13 Pac. 21, this court security was filed, and three days later a lays this down as the rule, und quotes apmotion and affidavit for continuance was provingly the law as laid down in Grant v. filed, which motion was presumably over- Westfall, 57 Ind. 126, as follows: “It has ruled, as the cause was tried; the trial com- j. been repeatedly held by this court that when mencing on December 13, 1905. This court a party complains of an alleged erroneous has repeatedly held that the granting or

decision of the court trying the cause, either refusing of a continuance in any case rests

in the exclusion or admission of evidence, in the sound discretion of the court, and he must point out in his motion for a new will not be ground for error unless the court trial with reasonable certainty the particugrossly abuses such discretion. Beall v.

lar evidence admitted or excluded; otherwise, Territory, 1 N. M. 507; Territory v. Padilla, the court below need not, and this court will 12 N. M. 1, 71 Pac. 1084.

not, consider such alleged erroneous deciWe can see no abuse of discretion on the sion." And we have held the same as late as part of the court in the case at bar in re- the case of Territory v. Cordova, 11 N. M. fusing the motion for continuance. The case 367, 68 Pac. 919, in which case authorities was first set on the jury trial docket for the are cited. We see no good reason for deJune term, A. D. 1905, and on July 6, 1905, in parting from the law as heretofore announced open court, was reset for the second Monday by this court, and we will not consider the of the following December term of court. objections to the introduction of the testiWe know of no greater publicity that can

mony, except in so far as we are obliged to be given as to when a case will be tried than do so in passing on the giving and refusing of to set it in open court. It is true that the instructions by the court to the jury. affidavit for continuance sets out that the 4. The other alleged error's relate to the attorneys for the defendant below had no measure .of damages. These alleged errors notice of such setting until November 22, are based upon the admission of certain evi1903; but it seems to us that they should dence by the court, the refusal of the court to have had such notice long before that day, give to the jury certain instructions asked for an attorney who has cases on the docket by plaintiff in error, and the giving of cershould be in attendance at court while it tain instructions asked by the defendant in is in session, or at least should have some error, to all of which objections were duly one there who will advise of the action of made and exceptions saved. One of the exthe court in any matters in which he may be ceptions is that it was error to perinit eviinterested. We will also take judicial no- dence to go to the jury as to the damages tice of the fact that the December term, 1900, caused by the tailings remaining on the of the district court, sitting within and for lands, because the water which contained the Socorro county, began on December 4, 1905, tailings was turned upon such lands by the and that the second Monday of said term defendant in error. The evidence discloses Was December 11th. Consequently from Yo- that the spring of the year 1904 was very dry, vember 220, when the attorneys for the de- and that much vegetation was destroyed by fendant below admit that they had notice reason of the prevailing drought; that deof the setting of the case to December 11th, fendant in error knew that tailings from was nearly three weeks-ample time, it seems the mill of plaintiff in error was in the water to us, to prepare for trial. The first affida- which ran down Mineral creek and into his vit for continuance was not filed until De- irrigation ditch, but that he thought that much ('ember 13, 1903, two days after the case was loss would be prevented by irrigating his set for trial. We see no error in the refusal i alfalfa, trees, vines, and vegetables with such of the court to grant the continuance asked : water, even if polluted, as without such irrifor.

gation they would be completely destroyed. 3. Five of the alleged errors relate to the The instruction given by the court in readmission of evidence objected to by plaintiff : gard to this point is numbered 7, and is as in error. Each of these objections, as shown follow's, to wit: "(7) You are instructed that in the motion for a new trial and assigned if you believe from the preponderance of as error, is in the most general terms, and the evidence the plaintiff has acquired the does not point out the particular question and right to use the water of Mineral creek för auswer objected to. In order to ascertain the irrigation of his farm prior to the pollution of the same by defendant corporation by testimony to go to the jury as to the amount allowing the tailings from its quartz mill to of money and also to the percentage of damflow therein, then you are instructed that it age occasioned by the deposit of the tailings devolved upon the plaintiff, before using the on the land, and as to the value of the fruit said water for irrigation, to use ordinary trees in the orchard and grapevines growing care in determining whether said water, so in the vineyard, and destroyed by the tailpolluted, would injure the vegetation on his ings; the plaintiffs in error claiming that farm or would injure the soil thereof, and, they had no value except as a part of the failing to exercise said ordinary care, he can- inheritance, and that the true measure of not recover in this case, unless you further damages was the difference in the value of find from a preponderance of the evidence the land prior to the death of the trees and that he was compelled to use said water for vines and its value subsequent to that time. irrigation, and in the exercise of ordinary The authorities on this point are somewhat care and prudence he elected to use said wa- in conflict. Some of the states have admitter in its polluted condition, as calculated ted evidence both ways on the question, and to result in less injury to him than to fail the rule contended for by the plaintiff in erto irrigate his said land at all, in which event ror is not the only or universal one. We beyou will not refuse to award plaintiff such lieve that the damages may be proven in damages as he has suffered, notwithstanding either way. What the law really requires he may have known, or with ordinary care “is that such damages be allowed as, in the should have known, the damaging results of judgment of fair men, directly and naturally such use of such water in such polluted con- resulted from the injury for which the suit dition; but in no event would the plaintiff is brought. This is the rule which obtains be entitled to greater damages than would in civil actions for damages. They have have accrued by not using the water so their foundation in the idea of just compolluted.” This instruction covers the law pensation for wrongs done." Hetzal v. B. & as we understand it. It is the duty of a per- 0. R. Co., 169 U. S. 37, 18 Sup. Ct. 259, 42 L. son to prevent an injury to his property, if he Ed. 618. The damages to vines and fruit can do so, and, if he cannot prevent such trees "is to be estimated with reference to injury entirely, to take such reasonable steps what they are worth on the premises in as are in his power to reduce the damages. their growing state, and not as taken up and This rule is admirably stated in 13 Cyc. 71, removed from the place." Montgomery V. 72, and is supported by citations of many Locke, 72 Cal. 75, 13 Pac. 401. cases in notes 43 to 46, inclusive, on those The instruction given by the trial court in pages. The rule is: “Where an injured par- regard to the damages seems to us to be ty finds that a wrong has been perpetrated eminently fair. It reads as follows: “(6) on him, he should use all reasonable means Now, if you find from the preponderance of to arrest the loss. He cannot stand idly by the evidence in this case, if any, that the and permit the loss to increase, and then hold plaintiff operated and used the waters of the wrongdoer liable for the loss which he said Mineral creek for the purpose of irrigatmight have prevented. It is only incumbent ing his farm, and the crops, trees, and vines upon him, however, to use reasonable exer- thereon, prior to the bringing of this suit, tion, and the question in such cases is al- and prior to the time the defendant began ways whether the act was a reasonable one, depositing the tailings from their mill there, having regard to all the circumstances of the if they so did, that the depositing of such particular case. The application of this rule tailings in said creek by said defendant comsometimes has the effect of enhancing the pany, if you so find, polluted the water of damages, rather than reducing them; but, said stream, and that such tailings were where a reasonable and bona fide attempt washed down by plaintiff's land and in his has been made on the part of the plaintiff to irrigating ditches during the year A. D. 1901, reduce the damages,

* it does not re- and that thereby the plaintiff's trees, vines, lieve the defendant from a full recovery of crops, and land were injurel, then and in the damages claimed.” Plaintiff in error such event you shall find for plaintiff in such asked the court to instruct the jury that, if sum or sums as will compensate him for the the defendant voluntarily turned the water damages sustained by him, if any, during the carrying the tailings into his land, he was said year 1904, prior to the bringing of this bound to know the effect of so turning the suit, and claimed by him in his complaint water containing the tailings into his land, therein, in no event to exceed the amount of and therefore could recorer no damages on damages claimed by plaintiff in his comaccount of the injury done by the tailings to plaint, namely, two thousand dollars." In a his land. The court very properly, we think, well-considered case in Kansas involving the declined to give this instruction, as the ques- destruction of fruit trees, the court said: tion was: Was he justified in turning the "It is contended that the question should water on his land, with the view of trying have been confined to the value of the farmı to prevent the greater damage which would as a whole before and after the injury, leavoccur if he did not so irrigate it?

ing the jury to compute the damages by deAnother claim of the plaintiff in error is ducting one from the other. While this is that the court committed error in allowing undoubtedly the regular and proper method


(14 N M. 293) UNITED STATES V. TALLMADGE et al. (Supreme Court of New Mexico. Aug. 30, 1907.) INDICTMEXT-FINDING BY GRAND JURY-IMPEACEMENT.

Members of the grand jury, under our statute, will not be permitted to impeach an indictment duly found, returned in open court, and filed as such, by testifying as to what was said by the prosecuting officer, while advising with them in his official capacity.

[Ed. Note.For cases in point, see Cent. Dig. vol. 27, Indictment and Information, $ 53.]

(Syllabus by the Court.)

Appeal from Fifth Judicial District Court; before Justice Wm. H. Pope.

Benjamin H. Tallmadge and others were indicted for conspiracy. Judgment vacating the indictments, and the United States appeals. Reversed.

W. H. H. Llewellyn, E. L. Medler, and U. S. Bateman, for the United States. Catron & Gortner and J. M. Hervey (A. M. Stevenson and Daniel Prescott, of counsel), for appellees.


of arriving at such damages as cannot be itemized and definitely measured in detail, it does not preclude the use of the best evidence which the nature of the case affords. Where a thing, whether it be a building, a tree, or shrub, is destroyed by a wrongdoer, the most natural and best measure of damage is the value of the thing destroyed as an appurtenant to or part of the realty, and ordinarily the value of the thing destroyed would be the measure of the injury to the freehold." M., K. & T. Ry. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526. And in another case the Supreme Court of Kansas also say: "A further claim is made that at most only nominal damages could be awarded under the evidence. The plaintiff showed that some 150 apple trees had been destroyed and that they were of the value of from $5 to $10 each. The defendants' witnesses testified that the farm on which the orchard was growing was as valuable after the fire as it was before. It is competent to prove damages such as were here claimed by showing the value of the trees destroyed (M., K. & T. Ry. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; M. C., Ft. S. & M. R. R. Co, v. Perry, 65 Kan. 792, 70 Pac. 876), or by showing the depreciation of the value of the real estate." A., T. & S. F. Ry. Co. v. Geiser, 68 Kan. 281, 75 Pac. 68. We are of the opinion that this is the proper rule, and that the damages can be proved in either or both ways, and that this is the rule which is sustained both by reason and by the weight of authority.

We have carefully examined the instructions given by the court in this case, and we see no error in them, and we have also examined the instructions asked by plaintiff in error, and which virtually ask the court to instruct the jury to return a verdict in favor of the defendant below, and we see no error in the refusal of the court to give them.

An examination of the record discloses that the verdict as returned by the jury, and the judgment entered in the lower court against the defendant, was in the wrong name, to wit, the Mogollon Gold & Copper Mining Company, and not against the Mogollon Gold & Copper Company, as is shown by the special answer on page 12 of the transcript of record to be the true name of the defendant company; and according to the authority vested in this court to make such amendments as may be necessary to do justice between parties to the suit, it is ordered that the judgment of the lower court in the name of the Mogollon Gold & Copper Mining Company be affirmed in the name of the Mogollon Gold & Copper Company, and the cause is remanded to the lower court, with directions to execute the judgment as amend. ed; and it is so ordered.

MANN, J. At the November, 1903, term of the district court of the Fifth judicial district, sitting for the trial of causes arising under the Constitution and laws of the United States, the defendants were indicted upon various charges concerning the public lands of the United States, charging conspiracy to defraud the government, perjuries, subornation of perjury, and other offenses of like nature; the indictments being numerous, but all relating to like transactions referring to certain land entries and proofs under the laws of the United States. To some or all of the indictments appellees filed pleas in abatement, setting up the specific grounds, to some of which grounds demurrers were interposed and sustained by the trial court, and upon the remaining issues appellant made answer, and the issues thus formed were submitted to a jury. The issue thus tried consists of alleged misconduct of the United States district attorney: (1) In urging to and upon the grand jury that the interests of the government of the United States required and demanded that said grand jury should find an indictment against said defendants; (2). that he stated to said grand jury that the evidence theretofore considered by them was amply sufficient upon which to find indictments against said defendants; (3) that he stated to said grand jury that, if they did not find and return a true bill or true bills against said defendants, upon the evidence theretofore given before them, that he, the said Llewellyn, would have the grand jury dismissed. Upon the trial of these issues the court permitted members of the grand jury to testify as to what was said by the United States district attorney in the grand jury room; in fact the sole evidence upon the issues raised by the


PARKER, J., having tried this case below, took no part in this decision,

plea was the evidence given by the grand ing but the truth, according to the best of jury and by the United States district at- their skill and understanding. The law also torney. This evidence was admitted over the makes it imperative upon the court to inobjection and protest of the United States, struct the grand jury as to the nature of and exceptions to the court's rulings upon their duties as such, and provides that their the admission of such evidence were duly indictments, when found, must be returned taken at the time. The jury found for the ap- by them in open court, and the indictments pellees as to all the indictments. A mo- must be filed with the clerk of the court and tion for a new trial was heard and sustain- remain in his office as a public record. ed as to certain: indictments and overruled It is a serious question, then, whether inas to others, and final judgment rendered dictments so found, presented, and filed may against the United States abating the indict- be impeached by members of the grand jury, ments, from which judgment the United for such impeachment would involve the tesStates appeals.

timony under oath of a grand juror that he We do not deem it necessary to discuss and his fellow jurors had violated another but one of the questions of law raised by oath, solemnly administered, by voting a true the assignment of error and discussed by bill upon other considerations beside legal counsel in their briefs, as we think it con- evidence, and that the indictment which had trolling under the circumstances of this case, been solemnly presented and filed as a public If the members of the grand jury and the record did not present the truth, the whole district attorney are competent witnesses to truth, and nothing but the truth, according the transactions and occurrences concerning to their skill and understanding. It is a which they testified in this case, then the principle well established by eminent authorverdict of the jury on the issues joined could ities that, where there are statutory provinot be disturbed. Section 980 of the Com- sions (such as ours above quoted) prescribpiled Laws provides: The grand jury may, ing the instances in which grand jurors may at all reasonable times, ask the advice of testify as to what occurred before them, such the court, the Attorney General or the dis- statutes are exclusive, and grand jurors may trict attorney of the county, and whenever testify in no other than the prescribed cases. required by the grand jury it shall be the 17 Am. & Eng. Ency. of Law, 129); People duty of the district attorney of the county

v. Thompson, 122 Mich. 413, 81 V. W. 341; to attend them for the purpose of framing

People v. Lauder, 82 Mich. 109, 46 X. W. 030; indictments, or of examining witnesses in State v. Johnson, 115 Mo. 180, 22 S. W. 103; their presence but no district attorney, sheriff

Tindle V. Nichols, 20 Mo. 326; State v.

Baker, 20 Mo. 339; State v. Ilamilton, 13 or other person shall be permitted to be present during the expression of opinions,

Yev, 387; Hall v. State, 134 Ala. 91, 32 or giving of their votes upon any matters

South. 750. “At common law a grand juror before them. Section 987 provides that every

could not ordinarily become a witness as to member of the grand jury must keep secret

facts occurring or testified to in the session whatever he himself, or any other grand

of the grand jury, but by modern statutes juror, may have said, or in what manner he

this disability has been removed to some ex

tent." 1 Elliott on Evidence, $ 611, citing or any other grand juror may have voted, on a matter before them, and provides a

numerous authorities. The only exceptions penalty for a violation of such provisions.

to the common-law rules made by our statSection 988 provides that a grand juror

utes are those contained in section 988. and may, however, be required by the court to

the evidence offered in the trial of the plea

in abatement did not come within these exdisclose the testimony of any witnesses examined before the grand jury, for the pur

ceptions. That the common law prevails in pose of ascertaining whether it is consistent

this jurisdiction, where it is applicable to with that given before them, by any other

conditions, except where it has been abrogatperson, upon a charge against him for per

ed by statutes, has been well settled by this jury, or in giving his testimony, or upon

('ourt. In Hall v. State, 13+ Ala. 00, 32 his trial thereof. The foreman and each

South. 750, a case very similar to the case member of the grand jury, before entering

at bar, where the district attorney was aroupon their duties as such, are required by

cused of using language to about the same law to take an oath that they will diligently

effect as is alleged was used by the United inquire and true presentment make of all

States district attorney in this case, the court public offenses against the people of the Unit

says, at page 113 of 134 Ala., at page 737 of ed States or this territory, committed, or tri- 32 South.: "Certainly to permit a grand able in this county, of which they shall have juror to testify that one or more of the or oltain legal evidence; that they shall

jury did not vote for the finding of the bill present no joel'sou through malice, liatred, or of indictment or matters influencing the acill will; not have any presented through tion of members of the grand jury would be fear, favor, or affertion, or for any reward not only a violation of his oth as a grand or promise or hojie thereof; but that in all juror, but would be destructive and subvertheir presentments or liniiitinents they shall sive of the grand jury as an institution of present the truth, the whole truth, and noth- vur judicial system, and destructive of that

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