The plaintiff in the law action is the owner and in the possession of the Sixteen to One quartz mine or lode mining claim in the Alleghany mining district in the state of California. The defendant is the owner and in the possession of the Belmont, Valentine and Tightner extension mining claims, adjoining the Sixteen to One claim on the east. The complaint alleges that there exists within the Sixteen to One claim a lode or vein of rock in place, carrying gold and other valuable minerals; that such vein on its strike or course traverses the claim from end to end; that the top or apex of the vein lies wholly within the side lines of the claim; that on its downward course or dip the vein departs from the perpendicular and passes out through the easterly side line of the claim into and beneath the surface of the adjoining claims owned by the defendant, and into and beneath the surface of another claim owned by third persons, who are not parties to the action. The complaint then avers that the defendant entered upon this vein between planes drawn vertically downward through the end lines of the Sixteen to One claim, and removed ore therefrom of a value in excess of $100,-000, for which sum the plaintiff demands judgment.

The answer in effect denies the title of the plaintiff, and by cross-complaint the defendant asserts title in itself, and avers that the plaintiff removed ore from the vein to the value of $125,000, for which, sum it demands judgment.

The issues thus presented were tried, before a jury. All testimony offered at the trial related to the title or ownership of the vein under the extralateral right statute, aside from a brief statement furnished by each of the parties showing the amount of gold extracted from the vein and the cost of mining, transporting, and reducing the ore. The charge of the court on the question of title or ownership was not excepted to by either party, and there is no claim of error in that regard at this time. On the question of measure of damages the court instructed the jury as follows:

*632 Again:

Under these instructions the jury returned the following verdict:

The plaintiff has interposed a motion for a judgment on this verdict, either in the sum of $100,000, or for the sum of $100,0,00 less the sum of $46,315.58. It might be stated in this connection that this latter sum is claimed to be the cost of mining, transporting, and reducing the ore, as disclosed by the statement furnished by the defendant. The defendant, on the other hand, has moved to set aside the verdict and for a new trial, on the ground that the verdict is indefinite, uncertain, and void.

[1] It is manifest that the plaintiff is not entitled to a judgment on the verdict for the sum of $100,000. The complaint alleged that the trespass was a willful one, and prayed damages in the sum of $100,000 on that basis. The jury found that the trespass was not willful, and therefore, under the charge of the court, there should have been deducted from the amount found by the jury the cost of mining, transporting, and reducing the ore. Nor, in my opinion, can the court deduct from the amount of the verdict the cost of mining, transporting, and reducing the ore, albeit such cost be 'shown by the admitted facts in the case. In other words, it seems that a federal court cannot look to the testimony, for the purpose of correcting a faulty verdict, even though there is no dispute over the facts.

In Hodges v. Easton, 106 U. S. 408 , 1 Sup. Ct. 307, 27 L. Ed. 169 , the facts were as follows:

In reversing the judgment thus entered, Judge Harlan, speaking for the Supreme Court, said:

Sec, also, Slocum v. New York Life Insurance Co., 228 U. S. 371 , 33 Sup. Ct. 523, 57 L. Ed. 879 , Ann. Cas. 1914D, 1029.

[2] If the jury finds in favor of the plaintiff, and there is no dispute over the amount of the recovery, it seems somewhat technical to deny to the court the power to supply the omission from the undisputed facts, but such seems to he the law of the land. It does not follow from this, however, that a new trial must be granted as to every issue in the case. There was no uncertainty in the verdict, in so far as the jury found for the plaintiff, thus establishing its title to the vein and its right to damages. I see no reason why that issue should be submitted to another jury, with little likelihood that a different result would be obtained. The power of a court to grant a new trial as to a single issue in a case is well settled in the state of California and in the federal courts. San Diego Land, etc., Co. v. Neale, 78 Cal. 63 , 20 Pac. 372 , 3 L. R. A. 83; Duff v. Duff, 101 Cal. 1 35 Pac. 437 ; Estate of Everts, 163 Cal. 449 , 125 Pac. 1058 ; Calaf v. Fernandez, 239 Fed. 795 , 152 C. C. A. 581 .

• This case, in my opinion, peculiarly calls for the exercise of the discretion of the court in awarding a new trial as to the single issue only. It was through mere inadvertence on the part of the jury that the case was not finally and forever disposed of at the last trial. There was at no time a substantial controversy over the amount of the recovery, and for reasons not disclosed by the record the plaintiff does not seem to be at all concerned as to the amount of the judgment for damages. Possibly the defendant is so far insolvent as to render the judgment for damages of no avail, if it loses the mine in controversy; but, whatever the reason, it would not he in the interest of justice or the exercise of a wholesome discretion to try the case over *634 again in its entirety. The verdict will therefore be permitted to stand, in so far as it finds the issues in favor of the plaintiff, and a new trial will be awarded for the sole and only purpose of assessing the amount of the recovery.

[3] The same state of facts is presented in the equity case. The relief sought is a decree quieting title in the plaintiff and awarding an infunction against the commission of further trespasses by the defendant. At the commencement of the trial of the law action it was stipulated that the equity case should be considered by the court on the testimony offered in the law action and such further testimony as the parties might present. Some further testimony has been offered, and in addition the defendant has requested the court to appoint some disinterested mining engineer or engineers to examine the mines and the mine workings and report to the court. On the trial of the law action a vast amount of expert testimony was offered by the plaintiff, tending to show the identity of the vein from the outcroppings or apex on the surface of the Sixteen to One claim down through the various workings, and perhaps an equal amount of testimony was offered by tire defendant tending to show the contrary. The experts on each side consisted of geologists, mining engineers, and practical mining men. It is almost needless to say that the opinions of these experts were positive and unequivocal in favor of the party who called them, and little would be accomplished by adding one or more additional experts to the long list already in the record. It was conceded throughout the trial that there is a vein on the Sixteen to One claim; that this vein dips in an easterly direction at an angle of 45 or 50 degrees; that the vein terminates at a fault at about the 200-foot level; and that by dropping down a distance of 15 or 20 feet at the shaft, and a distance of 35 or 40 feet at the northerly boundary of the claim, another vein is picked up, likewise terminating at a fault. The witnesses for the plaintiff testified that these two segments were one and the same vein, while the witnesses for the defendant testified to the contrary. Their theory is that, while there are two. segments of veins there, the upper segment of the lower vein was thrown up several hundred feet above the present surface of the mountain and has eroded away, while the lower segment of the upper vein can probably be found several hundred feet lower down. The jury found it much easier to join the two existing segments together, thus making a single vein, than to speculate as to what has become of the two lost segments, and with that conclusion I am in full accord.

A decree will therefore be entered in favor of the plaintiff in accordance with the prayer of the bill.