the various employes of large corporations "are not graded like steps in a staircase, those on each step being, as to those on the step below, in the relation of masters, and not of fellow servants, and only those on the same steps fellow servants, because not subject to any control by one over the other. Prima facie, all who enter into the employ of a single master are engaged in a common service, and are fellow servants, and some other line of demarcation than that of control must exist, to destroy the relation of fellow servant." But the court goes further: "Therefore, so far as the matter of the master's exemption from liability depends upon whether the negligence is one of the ordinary risks of the employment, and thus assumed by the employe, it includes all coworkers to the same end, whether in control or not." The court then lays down what it considers the proper test in such a case as the one before them, and which in principle is the same as the one we are considering. It is, "rightfully, this: There must be some personal wrong on the part of the master,--some breach of positive duty on his part." Justice Brewer proceeds then to show the reasonableness of this test, and, continuing, says: "Therefore, it will be seen that the question turns rather on the character of the act than on the relations of the employes to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor." And finally the learned justice thus states the present position of the court: "It may safely be said that this court has never recognized the proposition that the mere control of one servant over another in doing a particular piece of work destroys the relation of fellow servants, and puts an end to the master's liability. On the contrary, all cases proceed on some breach of positive duty resting upon the master, or upon the idea of superintendence, or control of a department. It has ever been affirmed that the employe assumes the ordinary risks incident to the service, and, as we have seen, it is as obvious that there is risk from the negligence of one in immediate control as from one simply a coworker." We have thus quoted extensively from this case because we have thought that that case places the rule in its proper light more cogently than we could possibly have done. Now, bringing the facts of the case which we are passing on to the test of the principle laid down in this Baugh Case, and it is too clear for controversy that the relation existing between the foreman of the

gang of section men and the plaintiff below was one simply of fellow servants. True, he had a certain control over the servant, but it was not absolute in its character, nor was it such that he had to perform towards the servant any personal duty of the master. When the master had seen that the servant had proper appliances with which to work, when he had used proper care to select suitable coworkers with the servant, when he had furnished the servant with proper rules to guide his conduct, the master had performed his personal duties to the servant. He was under no legal or moral obligation to furnish some one upon the hand car to keep a lookout for approaching trains. As the plaintiff below was injured by the negligence of a fellow servant, it was the duty of the court to have given the instruction requested by the plaintiff in error. Having refused so to do, it committed error, for which the judgment will have to be reversed, and the case remanded for a new trial.

FREEMAN and FALL, JJ., (concurring.) As we are governed by the decisions of the supreme court of the United States, and as we think the conclusions reached by Justice Seeds are amply supported by the authorities cited, we concur. We are constrained to say, however, that the conclusion reached by a majority of the court in the Baugh Case, 149 U. S. 368, 13 Sup. Ct. Rep. 914, does not commend itself to our judgment as either a sound or humane construction of the law governing the liability of the master for the negligence of servants placed in control of other servants.

O'BRIEN, C. J. I dissent. The conclusion reached by the court rests upon the theory that the men operating the hand car and those operating the work train were fellow servants, and that their common master is not liable, under the evidence in this case, for the consequences of an injury inflicted by one upon the other. Even if conceded that they were fellow servants, I am of opinion that if the work train doing the damage left the depot at an improper time, by direction of, or in obedience to, rules of the common master, and that the injury to the plaintiff resulted therefrom, without any fault on his part, the common master is legally liable for the damages. It appears to me that these matters were properly submitted to and determined by the jury in favor of the plaintiff. If the broad doctrine enunciated in the opinion of the court is to prevail, the wisdom embodied in the maxim "respondeat superior" might as well be eliminated from our jurisprudence. My conviction is that there is no substantial error in the record, and that the judgment below should be affirmed.

1. In ejectment by mine owners against the owners of an adjoining mine, the main issue was whether or not a vein existed, having its apex within the lines of defendants' claim, which they had a right to follow downward vertically under the superficial line of their claim, and within the lines of plaintiffs' claim. The evidence was that the shale cap overlying the ground in dispute, eroded on plaintiffs' claim, continuing in a semicircular form onto defendants' claim, contained no mineral, and that the mineral occurred in the lime, and in a few places between the shale and lime, but not connected with the former. Held, that the question as to the existence of such vein and apex was for the jury. Lee, J., dissenting.

2. Where a nonexpert witness testifies that there was no foot wall, it is improper to ask him, "If there is a foot wall, then there is a vein?" since the question demands an answer to a theoretical supposition, the condition to sustain which was denied by the witness.

3. Two witnesses who had worked on the property made a small model, which they admitted was not a perfect facsimile of the mines, and the court refused to admit as such, but did admit for the purpose of explaining the testimony. Several witnesses testified to and from the model, and it was used by both parties. Held, that it was not error to permit the jury to take the model to the jury room, on their request.

Error to district court, Grant county; J. R. McFie, Judge.

Action of ejectment by Daniel G. Raff and others against the Illinois Silver Mining & Milling Company and another to recover possession of certain mining property. There was a judgment entered on the verdict of a jury in favor of plaintiffs, and defendants bring error. Affirmed.

Neill B. Field, for plaintiffs in error. Warren, Fergusson & Bruner, for defendants in

error.

FALL, J. This cause, coming here from the third district, involves, as the main issue, the old vexed "apex" question, which has been the subject of litigation in the courts of every mining state in the Union, and which, more than once, has been considered by the supreme court of the United States. The law as to following a vein of metal outside the side lines of a claim, the apex of the vein being within the side lines, is well established; the right determined by congressional enactment and judicial decision. But, while what constitutes an apex and a vein are questions of law, the existence of either or both present questions of fact, to be passed upon in each case, as it arises, under the law applicable to the state of facts, as established. The assignments of error in this cause are numerous, and, before considering the same seriatim, it is well to set out, as succinctly as possible, the contention of the respective parties, as devel

The plaintiffs in error

oped by the record: are the owners of a patented claim, the Illinois, situated in the Kingston district, in Sierra county. The defendants own the Calamity claim, lying east of, and adjoining, the Illinois. Plaintiffs, working their ground, passed out under the east side lines of the Illinois, and into the ground of the Calamity, extracting ore in large quantities therefrom. Defendants brought suit in ejectment, and upon the second trial, in the county of Grant, venue having been changed from Sierra, obtained verdict, with one dollar damages and costs. The contention of plaintiffs is that, in taking ore from the ground of the Calamity, they followed a vein having its apex within the side lines of the Illinois, on its dip, under the east side line of the last-mentioned claim, into the Calamity ground; that this vein consisted of different shoots, veins, gashes, pockets, or bodies of ore, occurring in lime, or in the contact between lime and shale, all connected by stringers or otherwise, forming a continuous contact vein with its apex on the Illinois,a shale hanging wall and blue lime foot wall, and ore in the different pockets or places, when found, while of different values, of practically the same characteristics. The defendants contend that, within the meaning of the law, there is no vein either upon the Illinois or Calamity; that the ore occurs in an immense lode or mineral-bearing lime zone; that the ore, whether deposited in the pockets, gashes, pipes, or other forms, by infiltration, sublimation, or otherwise, was so deposited without reference to the shale or hanging wall; that the entire body of lime, practically, is mineralized, or at least that deposits of mineral of the same character are found from the surface of the lime, whether overlaid by shale or exposed to the air, down to the lowest depths at which work has been done; that there is no apex upon the Illinois claim; that the so-called apex is a point upon the lime 'nineral lode or zone whence the shale has been eroded upon the throwing up, in a rolling form, of said lime zone; that said bare spot extends westward across the side line of the Illinois, and onto the adjoining property; that the ore is found upon this bald lime in the same form and of the same character as around its edges, where the shale still exists, and under the shale when the same remains intact; that the shale is not a hanging wall, in the sense that it forms the nonmineral-bearing rock overhanging a vein or body of mineral, which, in turn, is supported or rests upon another nonmineral-bearing rock of the same or different formation from the hanging wall, but that the shale is merely the capping; that there is no contact vein, while there is a contact between the shale cap and the lime mineral-bearing mass, lode, or zone. Defendants further contend that, if it is conceded that the Illinois and Calamity are located upon a vein of mineral, then

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 testided 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 subinitted; 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 Ianguage 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 construction that is to be given the words "vein, 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 separating it from the neighboring rock." They also approve Judge Hallett's definition in Stevens v. Williams, 1 McCrary, 488, wherein 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