In Error to the Circuit Court of the United States for the District of Montana.

Action by the St. Louis Mining &„Milling Company of Montana against the Montana Mining Company, Limited. Judgment for plaintiff, and defendant brings error.

This controversy has been before the courts in one form or another for a. number of years. As the litigation has proceeded, the facts have been stated by the courts and will be found in the reported cases to which reference will be made. A restatement of the principal features of the controversy will, however, be necessary to a clear understanding of the present issues as they are now presented to this court.

The St. Louis quartz lode mining claim was located on the 28th of September, 187S, by Charles Mayger in Lewis and Clark county, Montana Territory. The notice of location declared that the locator “had discovered a vein or lode within the limits of the claim located.” The adjoining Nine Hour quartz lode mining claim was located on the 26th day of July, 1880, by William Robinson and James Huggins. The declaratory statement declared that the lode had been discovered and located on the 26th day of July, 1880. The declaratory statement and notice of location of the St. Louis mining claim described a claim on the St. Louis lode 600 feet in width and 1,500 feet in length along the lode or vein. The declaratory statement and notice of location of the Nine Hour claim described a location on the Nine Hour lode 600 feet in width and 1,500 feet in length along the lode or vein. The general direction of these two veins was northwest and southeast. The Nine Hour claim was on the south and east of the St. Louis claim. At the southeast corner of the St. Louis claim there was a conflict in the location or surveys of the two claims. The surface area involved in this conflict was small, but the extra lateral rights of the St. Louis company in a vein apexing within the St. Louis claim and dipping under the surface of the area in conflict has been the bone of contention in all this extraordinary litigation.

When Mayger made application for a patent for the St. Lonis claim, adverse proceedings were commenced by Robinson and Huggins against Mayger in the District Court of the Third Judicial District of Montana to determine the right of possession to the ground in conflict. Before the case was tried, the parties reached an agreement by way of a compromise, and to carry this compromise into effect Mayger, on March 7, 1884, executed a bond to Robinson and his associates in which Mayger agreed to proceed at once and procure as soon as practicable a patent for the St. Louis claim and then to execute and deliver to Robinson and his associates a good and sufficient deed of conveyance of the compromise ground, which was particularly described in the bond as follows:

“Commencing at a point from which the center of the discovery shaft of the Nine Hour lode bears south 39 degrees 32 minutes east, said course being at right angles to the boundary line of the St. Louis lode, between corners 2 and 3, fifty feet distant; thence north 50 degrees 28 minutes east on a line parallel to the aforesaid boundary line of the St. Louis lode claim, between corners 2 and 3 thereof, 226 feet, to a point on the boundary line of the St. Louis lode between corners 1 and 2; tbence south 20 degrees 28 minutes west along said boundary, between corners 1 and 2, 60.5 feet, to corner No. 2 of the St. Louis lode; 400.31 feet to corner No. 3 of the St. Louis lode; thence north 46 degrees 10 minutes west along the line of boundary of St. Louis lode between corners three and four, thirty feet, to a point; thence north 50 degrees 28 minutes east along a line parallel to the boundary line of the St. Louis lode between corners two and three, 230 feet, to the point of beginning, including an area of about 12,844.50 square feet, together with all the mineral therein contained.”

As the eastern and western side lines of this compromise ground, as here described, were parallel lines and 30 feet apart, the ground has been referred to in the proceedings as the “30-foot strip,” or “compromise ground.”

Mayger proceeded to obtain a patent for the St. Louis claim, including the compromise ground, as did also Robinson and Ms associates a patent to the Nine Hour claim, omitting the compromise ground. A patent to the St. Louis claim, including the compromise ground, was issued to Charles IT. Mayger by the United States on the 22d day of July, 1887; and a patent to the Nine Hour claim, omitting the compromise ground, was issued to Robinson and Ms associates by the United States on the 4th day of June, 1888. Thereafter the plaintiff in error acquired the interest of Robinson and his associates, and the defendant in error the interest of Mayger. Hereafter the plaintiff in error will be referred to as the “Montana Company,” and the defendant in error as the “St. Louis Company.” The Montana Company demanded a conveyance of the compromise ground in accordance with the terms of the bond executed by Mayger, which being refused, suit was brought in the district court of the state (hereinafter referred to as the “specific performance case”), which rendered a decree in its favor. That decree having been affirmed by the Supreme Court of the state of Montana (20 Mont. 394, 51 Pae. 824), the St. Louis Company sued out a writ of error to the Supreme Court of the United States, and on October 31, 1898, that court affirmed the judgment of the Supreme Court of Montana (171 U. S. G50, 19 Sup. Ct. 61, 43 L. Ed. 320). In pursuance of the decree, the St. Louis Company on July 1. 1895, executed and delivered to the Montana Company a deed for the tract described in the bond, giving its boundaries “including an area of about 12,844.5 feet, together with all the mineral therein contained, together with all the dips, spurs and angles, and also all the metals, ores, gold and silver bearing quartz, rock and earth therein, and all the rights, privileges and franchises thereto incident, appended or appurtenant, or therewith usually had and enjoyed; and also all and singular .the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and the rents, issues and profits therein, and also all and every right, title, interest, property, possession, claim and demand whatsoever, as well in law as in' equity, of the said party of the first part, of, in or to the said premises and every part and parcel thereof, with the appurtenances.” After the compromise agreement had been entered into, it was discovered that beneath the surface of the compromise ground there was a large body of ore which, it was claimed by the St. Louis Company, belonged to a vein apexing in the territory of the St. Louis claim. This was not the discovery vein upon which the location of the St. Louis lode was based, but was a secondary vein referred to in the proceedings as the “Nine Hour” or “Drum Lummon” vein or lode. This latter vein apexing for a certain distance in the St. Louis ■claim dipped to the east under the compromise ground and underneath the Nine Hour lode claim to the east of the compromise ground. The Montana Company had been mining ore from beneath the Nine I-Iour lode claim prior to 1893, but during that year began sinking a shaft upon the compromise ground. On September 16, 1893, the original complaint was filed in this action by the St. Louis Company against the Montana Company, and several individual defendants, claiming to recover $200,000 damages sustained by the trespass of the Montana Company in removing ore from so much of the Drum Lummon vein as had its apex in the St. Louis lode claim. In the original complaint the St. Louis Company alleged itself to be the owner of the entire St. Louis lode claim as patented. In the answer of the Montana Company it denied that the St. Louis Company was the owner of so much of the premises described in the complaint as were embraced in the compromise ground, which ground was described as in the bond for a deed executed by Mayger on March 7, 1884. It was alleged that prior to March 7, 1884, the said ground was a part of the Nine Hour lode mining claim, then the property of the predecessors in interest of the Montana Company, and that at the time of filing the answer the Montana Company was the owner of the ground and in the actual possession thereof and entitled to all the minerals therein contained. Proceedings were thereupon stayed in the present action, it being an action at law in the federal court, and suit was brought by the Montana Company against the St. Louis Company, as heretofore stated, for the specific performance of the agreement contained in the bond for a deed. The action, as has also been stated, resulted in a judgment in favor of the Montana Company for the specific performance of the terms of the bond providing for the exécution of a deed for the conveyance of the compromise ground to the Montana Company,

On November 21, 1898, three weeks alter-the decision of the Supremo Court of the United States in the specific performance case, the St. Louis Company filed an amended and supplemental complaint in the present action, which omitted the individual defendants, and sought recovery from the Montana Company alone for the oro which it was alleged had been removed from the Drum Lumrnon. vein apexing inside the surface location of the St. Louis claim. The damages sought to bo recovered were fixed at the sum of $200,000, the amount mentioned in the original complaint. The purpose of the amended and supplemental complaint was to enforce the alleged extralateral rights of the St. Louis Company to any and all ores found in the Drum Lumrnon vein apexing in the St. I Amis claim and dipping under the surface of the compromise ground and the Nine Hour claim. After issue had been joined upon this amended complaint, and, on June 20, 1899. the second amended and supplemental complaint was filed against the Montana Company alone, asking for the same relief, but alleging that, since the filing of the original complaint tlie Montana Company had extracted ore of the value of $400,000, and a judgment was demanded for $600,000. To this second amended and supplemental complaint an answer was tiled setting up the bond and deed heretofore referred to and pleading that by the terms of the bond and deed the St..Louis Company was estopped from claiming any part of the compromise ground or any mineral contained therein. Upon the trial of the case the court in its ruling upon the admission of testimony and in its instructions to the jury sustained the claim of the St. Louis Company to extralateral rights in the Dram Lumrnon vein in the compromise ground and under tile Nine Hour claim to the extent that such vein apexed wholly within the St. Louis claim, but denied the claim to extralateral rights for so much of the vein which, crossing the side line of the St. Xjouis claim, apexed partly in the St. Louis claim and partly in the compromise ground. Under these rulings judgment was rendered in favor of the St. Louis Company for $28,209.

To review this judgment the Montana Company prosecuted a writ of error to this court on the ground that the St. Louis Company had no extralatcral rights in the compromise ground. On the 34tli day of May, 1900, the judgment of the Circuit Court for the District of Montana was affirmed. 42 C. O. A. 415, 302 Fed. 430. In the meantime the St. Louis Company had taken out a cross-writ of error to this court on the ground that it had extralateral rights in the compromise ground not only for so much of the Drum Lumrnon vein as apexed wholly within the St. Louis claim, but also for so much of the vein as by reason of its width apexed partly in the St. Louis claim and partly in the compromise ground. This court held that where a vein crosses a common side line between two mining claims at an angle, and the apex of the vein is of such width that it is for a given distance partly within one claim and partly within the other, the rights of the parties would be determined by the priority of the location and the entire vein considered as apexing upon the senior location until it had wholly passed beyond its side line. As the St. Louis claim appeared to be the prior location, this holding required a reversal of tlie judgment of the court below, which was directed accordingly, and the case remanded for a new trial as to the recovery sought for the conversion and value ot the ores alleged to have been extracted from so much of the vein as apexed partly in the St Louis claim and partly in the compromise ground; evidence as to the conversion of such ores having been excluded by the Circuit Court from the consideration of the jury. 44 O. C. A. 120, 104 Fed. 664, 56 L. R. A. 725. Tlie Montana Company by separate writs of error then sought to have these two judgments reviewed in the Supreme Court of the United States, which latter court, on motion to dismiss and affirm, held that the judgment of the Circuit Court was entirely set aside by the second decision of this court, and therefore dismissed both eases on the ground that there was no final judgment. 186 U. S. 24, 22 Sup. Ot. 744, 46 L. Ed. 1039. Thereupon, on the filing of the mandate of this court, an order was entered setting aside the judgment in toto and ordering a new trial, which new trial was had on May 83, 1905, and resulted in a judgment in favor of the St. Louis Company for $195,000, which judgment was affirmed by this court. 147 Fed. 897, 78 C. C. A. 83.

To review this latter judgment the Montana Company sued out a writ of error to the Supremo Court of the United States and also made application for a writ of certiorari. The latter writ was allowed, and upon the hearing of the case the judgment of this court was reversed and the case remanded to the Circuit Court, with instructions to grant a new trial. Montana Mining Co. v. St. Louis Mining Co., 204 U. S. 204, 27 Sup. Ct. 254, 51 L. Ed. 444. In its opinion the Supreme Court dissented from the decision of this court (Montana Min. Co. v. St. Louis Min. Co., 102 Fed. 430, 42 C. C. A. 415), upholding the ex-tralateral rights of the St. Louis company in the compromise ground, and held that by the terms of the bond describing the ground and adding “together with all the mineral therein contained,” and under the provisions of the deed executed in pursuance of the judicial decree following the same description and containing the same words and also the further words “together with all the dips, spurs, angles, * * * something more was intended and accomplished than the mere establishment of a surface boundary line.” What this “something more” was is indicated by the reference of the court to the extra-lateral rights of mining claims and the conclusion reached by the court that the words used in the bond and deed under consideration were sufficient not only to convey the ground described, but to pass the extrblateral rights of the St. Louis 'Company in the compromise ground. In support of this conclusion the court said:

“To the suggestion that giving this construction to the bond and conveyance is in effect the granting of a section of a vein of mineral, the answer is that there is nothing impracticable or unnatural in such a conveyance. It does not operate to transfer the vein in toto, but simply carves out from the vein the section between the vertical side lines of the ground and transfers that to-the grantee. The title to the balance of the vein remains undisturbed.

“To the further suggestion that the owner of the apex might be left with a body of ore on the descending vein beyond the further side line of the compromise ground which he could not reach, the answer is that this assumes as a fact that which may not be a fact. The owner of the apex may be the owner of other ground by which access can be obtained to the descending vein, and it also is a question worthy of consideration whether granting a section out from a descending vein does not imply a right reserved in the grantor to pass through the territory of the section conveyed in order to reach the further portion of the vein.”

Upon the filing of the mandate of the Supreme Court in the Circuit Court, the St. Louis Company obtained leave and filed its third amended and supplemental complaint. In this complaint the ownership of the Nine I-Iour claim by the Montana Company, the description of the vein underneath the Nine Hour claim from which it was charged the Montana Company had extracted ore, and the ownership of the ore by the St. Louis Company were alleged as follows:

“That the said defendant is and was the owner of what is known and designated as the Nine Hour quartz lode mining claim, situate and being east of the said St. Louis lode mining claim and of the thirty-foot strip, or compromise ground aforesaid, and that the discovery, location, and recordation of said St. Louis quartz lode mining claim and the United States patent therefor was made prior to the discovery, location, and recordation of the said Nine Hour lode mining claim.

“That within the said St. Louis lode mining claim, as the same was patented, is the apex of a vein which has such a dip or so far departs from a perpendicular in its descent into the earth as that it passes underneath the surface of the said Nine Hour lode mining claim; the whole of its apex being within the said St. Louis lode mining claim and outside of the said compromise strip, from a point on the east boundary line of said claim 503 feet distant from corner No. 1, being the northeast corner thereof, to a point on the west boundary line of said compromise strip 108 feet distant from the point of the intersection of said line with the east boundary line of said claim where the hanging wall of said vein crosses said west boundary line of said strip, from which point where the said hanging wall so crosses said west boundary line of said strip to a point at least 25 feet distant, a portion of the apex of said vein is within the St. Louis lode mining claim exclusive of such strip, from which last-mentioned point the said vein pursues such ,a course as that a portion of its apex, including the foot wall thereof, is either within the said compromise strip or the said St. Louis lode mining claim, exclusive of such strip, until such vein passes beyond the south end line of the said St. Louis lode mining claim.”

It was further alleged:

“That notwithstanding the right of said plaintiff in the premises, said defendant, on or about the 30th day of June, 1893, knowingly, wrongfully, and unlawfully, by means of drifts, shafts, tunnels, and underground workings, entered into and upon that portion of the vein, lode, or lead, the apex of which is between said point 503 feet distant from said corner No. 1, and situate and being to the east of the east boundary line of said St. Louis lode mining claim, as patented, and beneath the surface of said Nine Hour claim, and commenced extracting quartz, rock, and ore therefrom and removing and converting the same to its own use and benefit, and since said time has extracted quartz, rock, and ore and removed and converted the same to its own use and benefit, of the value of 8500.000, on account of which this plaintiff has been damaged in said sum, a large part of which quartz, rock, and ore, of the value of many thousands of dollars, was by said defendant so removed from that portion of said vein the whole or a part of the apex of which is within the St. Louis lode mining claim exclusive of said compromise strip.”

To this third amended and supplemental complaint the Montana Company filed its answer, in which it was admitted that it was the owner of the Nine Hour claim; admitted that the dates of the discovery, location, and of the recording of the notice of location of the St. Louis claim were each and every one prior to the dates of the discovery, location, and of the recording of the location notice of the Nine Hour claim; and that a patent was issued to the St. Louis Company prior in date to the patent issued for the Nine Hour claim, hut denied that the St. Louis claim at the time of its discovery and location embraced the compromise ground, or any of its veins therein. It was averred that the ground embraced within the area described as the compromise ground and within the area in conilict between the St. Louis claim and the Nine Hour claim was first segregated from the public domain by the locators of the Nine Hour claim; and that as to all veins apexing within the said area of conflict the Nine Hour claim was senior and prior to the St. Louis claim.

It was alleged that the vein described in the third amended and supplemental complaint (Drum Lummon vein) from which it was charged ore had been extracted by the Montana Company, and for which damages were claimed by the St. Louis Company, was not the discovery vein, and at the time of t. ' location of the St. Louis vein was wholly unknown to the locators of that claim, and upon the line of said claim as patented this vein did in fact enter and depart from the same side line and not through either or both end lines; and because thereof it was alleged that the St. Louis Company never had, and did not then have, or own, any extralateral rights therein, or in the ores thereof lying eastward of a piano drawn vertically downward along said patented east line (independent of the conveyance of the compromise ground) and never did and did not then own any extralateral rights therein eastward of the west line of the compromise ground.

For a further and separate answer it was alleged, among other things, that the St. Louis claim was located on the 28th day of September, 1878, by the predecessor in interest of the St. Louis Company. A copy of the notice of location and declaratory statement of discovery was attached and made a part of the answer and marked “Exhibit A.”

It was alleged that the Nine I-Ionr claim was located on the 26th day of July, 1880, by the predecessors in interest of the Montana Company. A copy of their notice of location and declaratory statement of discovery was attached and made a part of the answer and marked “Exhibit B.”

It was alleged that on or about the 16th day of August, 1881, the owner of the St. Louis claim caused the same to be surveyed with the view to obtaining a patent therefor from the government of the United States, and that, in causing the survey to be made, Charles E\ Mayger, the then owner of the St. Louis claim, wrongfully extended and caused to be extended the easterly boundary line of the St. Louis claim so as to cover and embrace a portion of the ground which had theretofore been segregated from the public domain by the locators of the Nine Hour claim. The answer then recites the proceedings in the Land Office by Mayger in his application for a patent for tbe St. Louis claim; tbe filing of an adverse claim to tbe ground in conflict by William Robinson and .Tames Huggins, ‘tbe owners of tbe Nine Hour claimtbe commencement of an action by Robinson and bis associates in tbe state court to determine tbe rights of the respective parties to tbe ground in -conflict, and while this was pending tbe entering into an agreement by tbe parties to tbe controversy whereby tbe action Was settled and compromised; tbe execution of a bond .by Mayger to Robinson and bis associates pursuant to tbe compromise agreement, wherein the former agreed in consideration of the withdrawal of tbe adverse claim to proceed to obtain a patent for the St. Louis claim, and when such patent was obtained to execute and deliver to Robinson and bis associates or their heirs and assigns a good and sufficient deed to tbe premises mentioned and described in the bond (tbe compromise ground).

' Tbe answer alleges tbe issuance of a patent on July 22, 1887, to Mayger for the St. Louis claim as surveyed, including the area in conflict, and tbe issuance of a patent on Tune 4, 18SS, to Robinson and bis associates for tbe Nine Hour claim, excluding tbe area in conflict; tbe refusal of Mayger to execute a deed to Robinson and bis associates for the compromise ground; tbe commencement of an action in the state court by the Montana Company (which by mesne conveyances bad succeeded to tbe ownership of tbe Nine Hour claim), against Charles Mayger and tbe St. Louis Company to compel the defendants to comply with tbe terms of Mayger’s bond and to compel tbe execution of a deed by Mayger and tbe St. Louis Company for tbe compromise ground as called for in tbe bond; the entry of a judgment in the case in favor of tbe Montana Company; and the execution of a deed by tbe St. Louis Company to the Montana Company for tbe compromise ground in accordance with tbe terms of the bond and tbe judgment.

In this answer reference is made to an allegation contained in the third amended and supplemental complaint that tbe banging wall of tbe vein from which the ores, for which recovery is sought, are alleged to have been extracted, crossed tbe west boundary line of tbe compromise strip at a point 108 feet distant from tbe point of intersection of tbe compromise strip with tbe eastern boundary line of tbe St. Louis claim, and the foot wall crossed at a point at least 25 feet further south. With respect to this allegation, tbe answer denies that tbe said vein crosses tbe west line of tbe said compromise strip at said point; but alleges that the west line of tbe compromise strip, according to tbe calls of tbe compromise agreement and deed, should be located parallel to tbe boundary line of tbe St. Louis claim through a point distant 50 feet from tbe center of tbe discovery shaft of the Nine Hour claim, which point is ascertained by drawing a line 50 feet in length from tbe discovery shaft at right angles to the boundary line of tbe St. Louis claim between corners 2 and 3; that, when tbe west line of tbe compromise strip is located upon tbe ground in accordance with tbe call for tbe same in tbe deed; tbe point of departure of tbe vein from tbe St. Louis claim into tbe compromise ground will be found not to exceed 90 feet from tbe point of intersection between tbe west boundary line of tbe compromise ground and tbe east boundary line of tbe St. Louis claim, at which point of departure into the compromise ground tbe southerly plane bounding tbe rights of tbe St. Louis Company, if any, in veins apexing wholly within the St. Louis claim, should be drawn; that no ores bad been extracted from beneath tbe surface of tbe Nine Hour claim north of tbe plane so drawn through tbe last-described point of • departure, but all of tbe ores which bad been extracted by tbe Montana Company, either beneath tbe compromise ground or beneath tbe Nine Hour claim, bad been extracted at points south of said plane; that no ores bad been extracted by tbe Montana Company from veins having their tops or apexes entirely within the St. Louis claim, exclusive of tbe compromise ground, as tbe same is called for in tbe deed.

Tbe Montana Company by a cross-complaint and by way of a counterclaim alleged that it was tbe owner of tbe compromise ground and of tbe ores and precious metals contained therein, and in any and all veins throughout their entire depth, tbe apexes of which were within tbe Nine Hour claim and tbe compromise ground, at all points to tbe eastward of a vertical plane drawn downward along tbe west side line of tbe compromise ground as in tbe answer described; that, notwithstanding the rights of the Montana Company, the St. Lonis Company on or about June 30, 1893, and since said date had knowingly and wrongfully entered through underground workings of its own making into the portion of said vein owned by the Montana Company and extracted ores therefrom, and removed and converted the same to its own use and benefit in the value of $156,000, for which sum the Montana Company demanded damage.

The boundary lines of the St. Louis and Nine Hour claims involved in this controversy, the original area in conflict, the compromise ground, and the general course of the Drum Lummon vein are shown approximately on the annexed diagram.

Issues were joined by the filing of a replication by the St. Louis Company, and the case came on for trial before a court and a jury. At the conclusion of the testimony on behalf of the Montana Company, the St. Louis Company by leave of court amended its third amended and supplemental complaint and replication by withdrawing the allegation that the 32-foot strip or compromise ground was a part of the St. Louis claim, and substituting in lieu thereof an allegation contained in the former pleading that the compromise ground was and always had been a part of the Nine Hour claim. The complaint was further amended by an allegation that the apex of the vein in controversy passed entirely into the compromise ground at the point designated as the 268.6-foot plane, which point was 268.6 feet from the intersection of the west boundary of the compromise ground with the east side line of the St. Louis claim, between corners 1 and 2. The complaint as thus amended differed from the former complaint in the disclaimer of the St. Louis Company of any ore beneath the compromise ground, but insisting, as before, upon its extralateral rights to the ores in the Drum Lummon vein underneath the Nine Hour claim to the east of the compromise ground. The amended complaint also differed irons the former complaint in fixing the crossing of the foot wall of the Drum Lummon vein at the 268.6-foot plane instead of the 133-foot plane. As the jury found that all the ore for which a recovery was had by the St. Louis Company was extracted from that part of the vein north of the 133-foot plane, the latter amendment had ceased to have any significance in the case.

In submitting the ease to the jury, after clearly defined instructions as to the law of the ease, the court requested the jury to find specifically as to certain material and controlling facts as follows:'

(1) Is the compromise strip, as contended for by the St. Louis Company and pictured on its map, Plaintiff’s Exhibit No. 1, or as contended for by the Montana Company, and pictured on its map, defendant’s Exhibit I?

The jury returned a finding that they found the compromise strip as claimed by the St. Louis Company.

(2) The jury was requested to find how much ore the Montana Company had extracted from the Drum Lummon or Nine Hour vein underneath the surface of the Nine Hour claim, north of the 133-foot plane and south of the 503-foot plane, and east of the compromise strip, and the value thereof.

The jury returned a finding that the ore extracted by the Montana Company from the vein as described was 1,912 tons, and that the value of such ore was $237,470.40. .

(3) The jury was ais» requested to find how much ore had the Montana Company extracted from the Drum Lummon or Nine Hour vein underneath the surface of the Nine Hour claim, north of the 268.6-foot plane and south of the 503-foot plane, and east of the compromise ground, and the value thereof.

The jury returned the same finding to this question as to question No. 2.

(4) The jury were also requested to find what amount of ore the St. Louis Company had extracted from underneath the compromise strip, as they should find the same to be, and the value thereof.

The jury returned a finding to this question that the St. Louis Company had extracted ore from beneath the compromise strip amounting to 218.29 tons, and tbr value thereof was $34,341.38.

(5) The jury was also requested to find what amount of ore, if any, the St. Louis Company had extracted from underneath the Nine Hour claim belonging to the Montana Company, and outside of the compromise strip, and the value of the same.

To this question the jury returned a finding that no ore had been extracted by the St. Louis Company in the ground described belonging to the Montana Company.

The jury returned a verdict in favor of the plaintiff for the sum of $203,-129.02; and stated that this amount included interest and was in excess of any amount to which the Montana Company was entitled by virtue of its counterclaim or cross-complaint. The Montana Company brings' the case here by" writ of error.