The opinion
THAYER, Circuit Judge
(dissenting in part). I am unable to concur in the conclusion announced on all of the questions that are considered and decided in the foregoing opinion. I do not concur in the view that the instruction of the trial judge relative to the post at the corner No. 3 of the Fortune lode claim was an erroneous instruction. The patent granting the Fortune lode, and the original and amended field notes of the survey on which the patent was founded, were read in evidence, without objection; and it is conceded, in the foregoing opinion, that the case stands as though the field notes were written into the description of the patent. Therefore the patent declares that corner No. 3 of the claim as granted is marked by a post four inches square, four feet long, set two feet in the ground, and having the number of the corner and the number of the survey cut therein. When the boundaries of the claim were run, however, according to the courses and distances mentioned in the patent, no post whatever was found at corner No. 3 as thus located, but within 23 feet of that point, and to the northwest, a post was found which was squared on one side and surrounded by a mound of stones, and bore the number of the corner and the survey written thereon in pencil. One witness, who was present at the survey of the Fortune claim, testified that this was the very post which was erected by the surveyor to mark corner No. 3 when the claim was surveyed, and that it was at the point where the surveyor placed it. Several other witnesses, who lived in the vicinity and were familiar with the locality, gave evidence tending to show that the post had been standing in the same position since the date of the survey, and had been seen repeatedly by them since that time. One of these witnesses, a surveyor by profession, testified, in substance, that he had seen this post on several occasions since 1887, and had recognized it as the established corner of the Fortune claim by tying other surveys made by him to that corner, and that he had driven a nail into the post, to identify it, as early as 1887, and that he found the nail in the post as late as 1901, having tied other surveys to that corner in the meantime.
Now, on this state of facts, when the learned trial judge came to charge the jury, he instructed them as follows:
“The court instructs the jury that monuments control the courses and distances mentioned in a patent, and if the monuments called for in the patent or field notes of the original survey are found upon the ground, or supplied by proof of their former existence, then distances must be lengthened or shortened and courses changed to conform with the location of said monuments ; and in this connection the court instructs you that a stake, such as described by the witnesses in this case as located on corner No. 3, is sufficient to meet the calls of the patent; and, if they believe from the evidence that such stake is at the place at which corner No. 3 was located by the deputy mineral surveyor in making survey for patent, then the jury may find that the line of the patent should be extended to said corner No. 3.”
In the same connection he instructed the jury:
“That it is the lines actually run out and marked upon the grounds by the surveyor making survey for patent, when such lines can be identified, and not the lines which said surveyor reports in his field notes, which control and identify the granted premises. If, therefore, the jury believe from the evidence that the deputy mineral surveyor, in making survey for the Fortune patent, placed his monument marking corner No. 3 at the point where said monument is found to-day, and where the same is placed by plaintiff’s maps *686 and plats, then your finding should be for the plaintiff; that it is the owner of the Fortune claim to corner No. 3 as indicated by the monument now existing upon the ground.”
The trial judge declined to give an instruction in favor of the plaintiff in error which is quoted above in the majority opinion, and he also-declined to give an instruction which was asked by the plaintiff in error to the effect that corner No. 3 of the Fortune lode mining claim should be re-established by running from corner No. 2 on the courses and distances given in the patent, “unless [the jury found] from a preponderance of the evidence that the stake as contended for by the plaintiff, and which now stands upon the ground, does comply with the description of said post as set out in the patent.” In other words, plaintiff in error, who was the defendant below, asked the trial court, first, to permit the jury to determine whether the post standing upon the ground at corner No. 3 complied sufficiently with the description of the post at that corner as given in the patent, and, in the second place, to declare, as a matter of law, that the post did not so comply.
On the state of facts above narrated, I am of opinion that the trial court was fully warranted in instructing the jury, as it did in substance, that if the post found on the ground at corner No. 3 was at the place where the surveyor placed his monument at the time of the survey to mark corner No. 3 of the claim, then the existing post might be regarded as answering the calls of the patent, and that the boundary of the claim should be extended thereto. There would seem to be little justice in depriving the plaintiff below, who is the defendant in error here, of valuable property by adhering strictly to courses and distances, which are apt to be to some extent erroneous, if the jury were satisfied by reliable testimony, as they appear to have been, that the artificial monument found on the ground was in the exact spot where the survey- or had placed it to mark corner No. 3 at the time he surveyed the claim for patent. The patent and field notes showed that the corner in question had been marked at the time of the survey by an artificial monument, to wit, a post of a certain description; but when the corner was located by following courses and distances, no post whatever was found at that point, or evidence that one had ever been erected at that place. This fact alone created some uncertainty — a doubt as to the accuracy of the course. Near by, however, was found a monument, that had evidently been set by a surveyor, which corresponded generally with the monument called for in the patent. It was so near as to justify an inference that it was the post referred to in the patent, and that, as frequently happens in running lines over a rough country, the course and distance from corner No. 2 to corner No. 3 had been read erroneously. These facts, in my judgment, warranted the introduction of oral proof to the effect that the monument found on the ground was the one set by the surveyor, or was at the very spot where he had placed a post to mark the corner. Proof to this effect was in fact received; without objection from anybody that the reception thereof violated any rule of evidence, and it was ample to establish the fact which it was intended to establish. The doctrine announced in the foregoing opinion comes dangerously near declaring that if a monument set by a surveyor to mark the boundary of property is accidentally destroyed, or is not *687 described to a nicety, the owner loses his property, although he may be able to prove to a certainty exactly where the monument was set,- or that the monument remains where it was placed by the surveyor but was not described accurately. I am unable to concur in this view.
Furthermore, I have not been able to conclude that a material or prejudicial error was committed by the trial court in refusing to permit the witness McNeece to answer the question, on his cross-examination, if. when the Fortune claim was surveyed, the surveyor measured the distance from corner No. 4 of that claim to corner No. 4 of the Kokomo claim, which distance, as the patent declared, was 196 feet on a certain course. Conceding that an answer to this question might have been properly allowed, it is a different question whether the court committed a reversible error in sustaining an objection to the interrogatory. The object which the plaintiff in error, who was the defendant below, had in view in asking this question, appears to have been to show that if the distance between these corners of the Kokomo and the Fortune was as specified — that is to say, 196 feet — then corner No. 4 of the Fortune would be located about 323 feet distant from the post which was found at corner No. 3, making the claim of excessive width; whereas if corner No. 4 of the Fortune was located according to this call of the patent— that is to say, 196 feet from corner No. 4 of the Kokomo — it would be in the neighborhood of 300 feet from corner No. 3 of the Fortune •as located by following courses and distances, which the defendant insisted should be followed. In other words, the evidence tended, in some measure, to confirm the contention of the defendant below as to the proper location of corner No. 3, while it tended in some measure to overcome plaintiff’s contention on the same point. But as I read the record, the fact which the defendant below wished to establish was conclusively shown afterwards, by the testimony of a surveyor who had measured the distance in question, that if corner No. 4 of the Fortune was located 196 feet distant from corner No. 4 of the Kokomo, then it would be at a point 328 feet distant from the post which, as the plaintiff claimed, was set to mark corner No. 3 of the Fortune. There seems to have been no substantial controversy on this point, so that it is difficult to see in what manner the defendant below was prejudiced by the refusal to allow McNeece to answer the question if the distance between the two corners was measured. The fact which the defendant wished to establish, and from which it desired to draw inferences, was established by authentic testimony, and does not seem to have been seriously disputed. I am of opinion, therefore, that it is overtechnical, unnecessary, and unwise to hold that the refusal of the trial court to permit McNeece to answer this particular question on his cross-examination, was a material error.
Incidentally, the foregoing opinion contains the statement — although the case at bar does not seem to involve a discussion or decision of that question — that “the party on whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination, and a violation of this right is reversible error.” This statement, besides being unnecessary, is, in my judgment, erroneous, in that it states the rule too broadly, and is calculated both to mislead practitioners and cause them to sue out writs of error on insufficient grounds. While it fs true that it is customary in the federal courts to limit the *688 ■cross-examination of a witness to matters inquired of in chief, yet it is not true that every relaxation of this rule constitutes a reversible error. As Mr. Justice Clifford well observes in Wills v. Russell, 100 U. S. 621, 626 , 25 L. Ed. 607 :
“Cases not infrequently arise where the convenience of the witness or of the court or the party producing the witness will be promoted by a relaxation of the rule, to enable the witness to be discharged from further attendance; and, if the court in such a case should refuse to enforce the rule, it clearly would not be a ground of error, unless it appear that it worked serious injury to the opposite party.”
No federal case has been cited, and none, I apprehend, can be found, where the judgment of a trial court has been reversed solely because a ■question was asked of a witness on cross-examination about a matter not inquired of in chief. The cases cited in support of the doctrine announced in the foregoing opinion are those where a litigant was complaining in the appellate court because the trial court did not permit a 'witness to testify on cross-examination about matters to which he had not been interrogated in chief, and the rulings were ujpheld. Trial judges will often find it to be convenient, and even necessary, to permit a witness to be asked a question or questions on cross-examination relative to a subject about which he has not testified on his direct examination. They must of necessity exercise some discretion on such occasions, and the true doctrine is, in my opinion, that a judgment will not' be reversed on appeal because of some relaxation of the general rule, unless the trial court abuses its discretion and permits a witness to be interrogated on his cross-examination about matters not gom. into in ■chief, when there was no reasonable excuse for so doing, and when it is .apparent that the opposite party was thereby prejudiced.
I have not been able to conclude that the exclusion of the location certificates was such an error as warrants a reversal of the judgment. It is conceded by learned counsel for the plaintiff in error that the location certificates cannot be introduced for the purpose of contradicting the patent as to the area of the claim, or in any other respect, and such is clearly the law. Doe v. Waterloo Mining Co. (C. C.) 54 Fed. 935, 940 ; Waterloo Mining Co. v. Doe, 27 C. C. A. 50 , 82 Fed. 45 ; Golden Reward Mining Co. v. Buxton Mining Co. (C. C.) 79 Fed. 868, 874 ; Lindley on Mines (2d Ed.) § 778. But it is claimed, as I understand, that the location certificates contained an important admission on the part of McNeece, who was one of the locators, which tended to rebut his statement that the post found on the ground at corner No. 3 of the ■claim was where it was originally located by the surveyor. The admission, as I understand, is contained in the first paragraph of the amended location certificate, which declares, in substance, that McNeece and •others had made a location by right of discovery, in compliance with the act of Congress and the local customs, claiming 1,500 linear feet on the Fortune lode vein “along the vein thereof with all its dips, angles and variations as allowed by law, together with 150 feet on each side of the middle of said vein at the surface so far as can be determined from present developments * * * within the lines of said claim 395 feet running N. 88° 30' W. from center of discovery shaft and 1105 feet running S. 80° 30' E. from center of discovery shaft.” It is said that the *689 course of the center line of the vein as thus given corresponds with the course given in the patent from corner No. 2 to corner No. 3, the two lines being practically parallel, and that the center line of the vein projected would intersect the east end line more than 150 feet south of the post found at corner No. 3, which the plaintiff below claimed to be the true corner as actually located .by the surveyor. It will be observed, however, from the language employed in the location certificate, “so far as can he determined from present developments,” that when this location certificate was prepared the course of the vein — that is to say, the middle of the vein at the surface — could only be approximately determined. So far as developments at that time had disclosed, the middle thread of the vein was believed to be about parallel with the line from corner No. 2 to corner No. 3. It is quite apparent, from the location certificate, that McNeece and his fellow locators intended to claim 150 feet on each side of the center of the vein at the surface, wherever subsequent developments might prove the center line to be. He or the surveyor supposed at the time the course of the vein to be abom N. 88° 30' W. from the center of the discovery shaft. I fail to see that the fact that this center line of the vein, as described by the location certificates, intersects the east end line of the claim more than 150 feet south of the post, was entitled to any greater significance, or that it gave any increased weight to the fact, which was not denied, that the line drawn from corner No. 2 to corner No. 3 of the claim, following courses and distances, established corner No. 3 about 23 feet south of the post which was found on the ground. The actual course of the vein was founded on supposition largely. As the location certificates show, it was believed to be about parallel with the north side line as the claim had been surveyed, and it was so described probably without any survey of the center line of the vein at the surface because it could not be accurately determined. The real point in dispute between the parties, as it seems to me, was whether the post which was found at the corner No. 3 was at the spot where the surveyor placed it to mark the corner, and that issue, in my judgment, was fairly tried.
I concur in what is said in the foregoing opinion concerning the proper rule for the admeasurement of damages.