[No. 724.

October 2, 1897.]

#### LINCOLN LUCKY & LEE MINING COMPANY, Plaintiff in Error, v. ALEXANDER M. HENDRY, Defendant in Error.

Ejectment— Consolidation of Suits — Judicial Discretion. — The right of the courts of this territory to order the consolidation of causes, in their discretion, is indisputable, and the exercise of such discretion is not subject to reversal, except in cases of palpable abuse.

Id. — Title—Offer to Prove and Failure to Produce Documents. — An offer to prove a chain of title is properly refused, where the party making the offer fails to produce the documents when asked to do so.

Id. — Instructions.—Where requests to charge the jury, submitted by defendant, were fully covered by the charge of the court, defendant could not complain.

Id. — Ouster Upon and Under Surface. — There is no distinction between an ouster upon the surface and an ouster under the surface of the earth, except in eases arising under the mining laws by virtue of section 2322, Rev. Stat. U. S.

Id. — Error •— Evidence — Omission From Record — Presumption.— Where a claim of error is based on a question of fact, the correctness or incorrectness of which can not be discerned from the record, the correctness of the judgment of the court below will be presumed. Witt v. Cuenod, 9 N. M. 143, ante.

*150 Error, from a judgment for plaintiff, to the First Judicial District Court, Santa Fe County.

Affirmed.

The facts are stated in the opinion of the court.

Warren, Fergusson & Gillett for plaintiff in error.

The court below erred in making the order of consolidation. Even under section 921, Revised Statutes, separate actions can not be consolidated for any purpose, where the defenses differ, as here, unless by consent of parties. Mutual Life Ins. Co. v. Hillmon, 145 H. S. 285. See, also, Cox Com. Law Prac. 239, sec. 7; 2 Arch. Prac. 180; Graff v. Musser, 3 Serg. & R. 262; Scott v. Cohen, 1 Nott. & M. 413; Bones v. National Bank, 67 Ga. 339; Smith v. Orabb, 2 Stra. 1178; Bayly v. Roby, 1 Id. 420; Reid v. Dodson, 1 Overt. 396; Wallace v. Eldridge, 27 Cal. 498; Merrill v. Lake, 47 Am. Dec. 377; Blasch v. Chicago, 44 Wis. 593; Ortman v. Ry. Co., 32 Kas. 419; Bangs v. Dunn, 66 Cal. 72; Wilkinson v. Johnson, 4 Hill. 745; Howard v. Chamberlain, 64 Ga. 684.

The court erred in excluding competent and material evidence offered by defendant, to his prejudice. The relative rights of the parties, as determined by the law governing possession without title, are materially different from those existing under the mining laws of the United States and of New Mexico. Field v. Gray, 25 Pac. Rep. 793; Bay State Co. v. Brown, 21 Fed. Rep. 167; Dickenson v. Colgrove, 100 U. S. 582; Moorehouse v. Phelps, 21 How. 294; Reynolds v. Iron Silver, 116 How. 687.

Neill B. Field for defendant in error.

The order of consolidation was properly made. Rev. Stat. U. S., see. 921; Mut. Life Ins. Co. v. Hill-man, 145 U. S. 285; Folsom v. U. S., 7 Gild. (N. M.) 532; Putnam v. Lyon, 32 Pac. Rep. 492; Russell v. Chicago, etc., Co., 29 N. E. Rep. 37; Pelzer v. Ins. Co., 15 S. E. Rep. 562; Grant v. Davis, 31 N. E. Rep. 587; Dem v. Kemble, 9 N. J. L. 335; *151Jackson v. Stiles, 5 Oow. 282; Keep v. Indianapolis, etc., Oo., 10 Fed. Rep. 454; Railway v. Jones, 49 Id. 343; Powell v. Gray, 1 Ala. 77; 4 Ency. PL & Pr. 688, nofte 1.

The right to the - possession of the surface of the earth carries with it the right to the possession of everything beneath the surface to the center of the earth. Rev. Stat., sec. 910;. Mining Oo. v. Mining Oo., 11 Mar. Rep. 608; Pardee v. Murray, 2 Pac. Rep. 16; Iron Silver Oo. v. Elgin Oo., 118 H. S. 196; Bradley v. Lee, 38 Oal. 362; Mallett v. Min. Oo., 1 Mar. Rep. 17; English v. Johnson, 12 Id. 202; Aurora Oo. v. Min. Oo., 15 Id. 581; Hicks v. Coleman, 25 Oal. 122; Hawes v. Min. Oo., 160 H. S. 303.

COLLIER, J.

Consolidation of suits: judicial discretion. This was an action of ejectment, brought by the defendant in error against the plaintiff in error for the possession of a mining claim known as the “Anaconda Mine,” situated in Santa Fe county, New Mexico, the facts in regard to which are sufficiently stated in the opinion. In the view thait we take of this case, many questions which are pressed upon our attention in the briefs, and which were urged upon the oral argument, may, with entire justice to all parties, be left to be decided when they arise in a case where the determination is necessarily involved. One question of practice, however, should be passed upon, and that is whether or not there was error in the order of consolidation. It is insisted by plaintiff in error that the order of consolidation was prejudicial to it, and that such predju- . A d dice is 'affirmatively shown by the record, in # ° *' 7 that it appears that this plaintiff in error relied upon a defense entirely different from that relied on by the plaintiff in error, Middleton, in the other cases. We are, however, unable to discover any force in the contention, because we think priority of possession was the one question in both cases. We think the right of courts to order the consolidation .of causes in this territory in their discretion can not be disputed, >and that the exercise of such discretion is not subject to a reversal, except in cases of palpable *152abuse thereof. Insurance Co. v. Hillmon, 145 U. S. 285; 12 Sup. Ct. 909; Keep v. Railway Co., 10 Fed. Rep. 454.

*153 title- offer to to producVdocuments' *152On the trial of this case the parties, by their respective counsel, entered into a stipulation in writing as to the truth of certain facts, which, if material and relevant, tended to show that the ground in controversy was within the exterior boundaries of what was known as the “Canon Del Agua Land Grant,” a private land claim confirmed by the congress of the United States in 1866 to one Jose Serafín Ramirez and his heirs,for which a patent was issued by the United States on the first day of July, 1875; that before the rights of any of the parties to this suit attached, proceedings were begun in the district court, Santa Fe county, by the United States to cancel the said patent, 'and such course was had therein that the bill of complaint of the United States was dismissed. Upon appeal to this court the judgment of the district court was reversed, and a decree was entered by this court on the twenty-third day of January, 1888, that said patent and survey upon which it was based, “be, and the same are hereby respectively forever annulled and set aside, and held for naught for any and all purposes whatsoever.” Subsequently the case was taken on appeal to the supreme court of the United States, when the decree of the court was affirmed on the fourteenth day of November, 1892. A resurvey of the grant known as the “Canon Del Agua Grant” was approved by the commissioners of the general land office on August 30, 1894, and on the sixteenth day of January, 1893, the commissioner of the general land office of the United States wrote an official letter to the surveyor general of the territory of New Mexico, in which he said, among other things: “No entries, filings, or locations of any description can be permitted upon the premises granted by congress or heretofore relinquished by the government to said Ramirez until the necessary resurvey has been made, has been accepted as correct by the land department, and become final under the rules as the basis of a. new patent; and the lands found not to be included in the grant have been opened to disposition according to law.” Defendant in error *153objected to tbe admissibility of tbe patent and tbe trial court sustained the objection, saying: “I will sustain tbe objection made by tbe plaintiff (defendant in error) to tbe introduction of that testimony offered, and under tbe stipulation, and I will presume for this case only, and for tbe purposes of this case, that tbe land in question at tbe time of tbe location of tbe Anaconda and tbe Lee was public land, and subject to location as made or attempted to be made by tbe respective parties, and I will submit tbe issue to tbe jury on tbe right of possession and tbe matter of damages, whatever they may be. I think this will present, probably, a plainer issue to tbe jury than for them to consider anything else, and it will effectually dispose of tbe right of possession of tbe property at tbe time of tbe bringing of this suit in question.” Tbe effect of this ruling was to exclude from the consideration of tbe jury tbe patent issued by tbe United States, and all tbe stipulated facts, and to make tbe case turn entirely upon tbe question of priority of possession. Subsequently tbe court rejected, on objection by defendant in error, an offer by plaintiff in error “to prove a complete chain of title from tbe original grantee to tbe Lincoln-Lucky & Lee Mining Company,” be, in feet, not producing same, although given opportunity so to do. We think it enough to say as to this that, if plaintiff in error desired to prove such -a chain of title, it should have produced tbe instruments upon which it was based, and that tbe court properly rejected tbe offer to proye such title because of failure to produce tbe documents when asked so to do. If plaintiff in error bad proved a complete chain of title from Jose Serafín Bamirez for tbe locus in quo, it would devolve upon us to decide whether or not tbe trial court erred in rejecting tbe patent and stipulated facts; but, inasmuch -as there was no such evidence in tbe case, we decline to pass upon tbe effect of tbe patent or decree of cancellation of patent and survey, and shall proceed to examine tbe instructions of tbe court, as well as tbe instructions requested by plaintiff in error, to ascertain *154whether or not error prejudicial to plaintiff in error was committed.

instructions. ouster upon and under stuface. We will first examine the instructions asked by the plaintiff in error, and refused. Without attempting to set out in detail in this opinion the requests to charge submitted by plaintiff in error, we feel constrained to say that we find no proposition contained in those requests which we consider sound, and applicable to the case, which is not fully covered by the charge of the court. Considered as a whole, the requests ask the court to charge the jury as to the rights of the respective parties under the mining laws of the United States, and, in so far as they cor- . rectly state the law, they are embraced in and fully covered by the charge of the court. The plaintiff in error claimed under the Lee location, made in 1892, and the defendant in error claimed under the Anaconda location in 1889, and the charge of the court fully and correctly explains to the jury the rights of the respective parties if the grant was, as was assumed by the court, public domain of the United States, mineral in character, and on the twenty-fifth day of May, 1889, subject to location under the mining laws of the United States and of the territory. Indeed, counsel for’plaintiff in error on the oral argument distinctly disclaimed any claim of error in the charge if the mining laws of the United States -and of this territory are applicable to this controversy. We hold that there was no prejudicial error in the charge, if the mining laws of the United States and of this territory do not apply, because, unless the plaintiff in error could justify its intrusion upon the possession of the defendant in error under these mining laws, it could not be justified at all, and the court should have directed a verdict for defendant in error. In this aspect of the case the material facts are undisputed. Defendant in error was in possession of the locus in quo on the sur^ace the earth, and the boundaries on the surface wer6 sufficiently marked to render that possession an actual possession to the extent of those boundaries. While he was so in possession, the plain*155tiff in error entered beneath the surface by a tunnel or other excavation, and ousted defendant in error. This entry by plaintiff in error was not until the month of May, 1892, while at the very time of the entry, and for months, if not years, before, the defendant in error was actually engaged in sinking a shaft. The plaintiff in error being without a claim of title to the surface, how can it justify its entry below the surface except under the mining laws? Certainly, if both parties were trespassers, there can be no doubt that the prior possession of the defendant in error would be sufficient as against the subsequent entry by plaintiff in error, if the entry was made upon the surface, and the ouster was there committed. Is the rule different because the entry was below the surface, and by way of a tunnel ? Surely not. “Oujus est solum est usque ad coelum.” Brown, Leg. Max. 395. While admitting the existence of this rule, counsel for plaintiff in error earnestly contends that the rule is different when the lands in controversy are mineral in character, and insists that a trespasser may have such possession of the surface of the earth as would enable him to maintain ejectment against a subsequent intruder who entered upon the surface, and ousted him, and that such possessions may still be insufficient to enable him to maintain ejectment 'against the same intruder if he enter beneath the surface upon a vein of mineral, and this without reference to the mining laws; but he has referred us to no case which sustains his contention. We hold the rule to be the same as to all character of lands, and that there can be no distinction between an ouster upon the surface and ouster beneath the surface, except in cases arising under the mining laws by virtue of section 2322, Revised Statutes.

error: evidence: record;0 presumptI0n‘ Complaint is made that the court directed the jurythat if they found for defendant in error they should assess his damages at a given sum. The transcript shows th3* two affidavits were offered and admitted in evidence in the same connection at folios 376, 377 and 378 of the record. One refers to the question of damages, as appears by the *156statement of counsel, and both are omitted from the record. Counsel for defendant specially called attention to this omission on the argument, and his claim is that these affidavits supported the judge’s instructions on the measure of damages, and opposite counsel has made no effort to supply the omitted evidence. We have just held in the case of Witt v. Cuenod (handed down this day), that where the claim of error is based on a question of fact, the correctness or incorrectness of which can not be discerned from the record, the burden of showing error is not met, and the presumption of the correctness of the judgment of the lower court obtains. We cite, also, in support of this position, Cattle Co. v. Sully, 144 U. S. 209. The judgment of the lower court is affirmed.

Hamilton and Bantz, JJ\, concur.