Page:Federal Reporter, 1st Series, Volume 1.djvu/549

 BUEKB V. FLOOD. 541 �and that its apex or top is not within the side lines of any Buch claim of plaintiff dra\ra vertically downwards, but is a Beparate, independent vein, every part of which lies to the east-ward, or outside of and beyond any claim, the title to which you find to be in plaintiff, and no part of the apex or top of which is within the side lines of such claim drawn vertically downwards, then it does not belong to plaintiff and your verdict will be for defendant. �If you -find for the plaintiff, gentlemen, you will then inquire what the damages are. The testimony on the ques- tion of damages is that about 55 tons of ore bave been taken out, and I think the testimony is that it is about $25 or $30 per ton in value. The damages will be the value of the quartz removed; at ail events, if you cannot agree on the damages, they are entitled to nominal damages, say one dollar. �If you find for the plaintiff, your verdict will be — �"We, the jury, find for the plaintiff, and assess the dam- ages at so many dollars." �If, on the other hand, you find for the defendant, your your verdict will be — �"We, the jury, find for the defendant." �The verdict of the jury was for the plaintiff, with one dollar damages. ���BuBKE V. Flood and others. �(Oùrcuit Court, D. Califomia. January 26, 1880.) �Bbmovai, op Causes Undbr Act of 1875. — Under the flrst clause of tho second section of the act of 1875, which reads, " In any suit of a civil nature, * * • in which there Bhall be a contioversy between citi- zens of different states, * * • either party may remove said suit," etc., it is necessary, to authorize a removal, that ail the persons on one side shall be citizens of different states from those on the other side of the controversy. But to determine the right of removal the parties may be transposed and arrangea on opposite sides of the controversy accord- Ing to their real interests, without regard to their formai position on the record as plaintlfls or defendants. ��� �