general plan may have been, they exceeded their authority, and the streets which they platted, existing only on paper, were not lawfully established. Bingham v. City of Walla Walla, 3 Wash. T. 68, 13 Pac. 408; Helena v. Albertose, 8 Mont. 499, 20 Pac. 817; Pueblo v. Budd, 19 Colo. 579, 36 Pac. 599; Cerf v. Pfleging, 94 Cal. 131, 29 Pac. 417. Nor does it appear that there has been a dedication of the land for street purposes by the occupants. We have no doubt the trustees of such town sites may be authorized by the Legislature to divide into lots and blocks unoccupied lands within the town site and to dispose of them for the benefit of the community, and to that end to establish streets and alleys through such unoccupied land to afford convenient means of access to such lots; but this street was not established under such legislative authority. We express no opinion as to what rights the town would have acquired in the land, had it, after being platted as a street, been actually opened and used as such by the common consent of the occupants, or if it was made to appear that the occupants assented to a dedication of the land as a street to be opened and used as such at such future time as the needs of the town might require. Since it does not appear that the so-called Hill street has ever been lawfully established; the city of Globe, as a municipality, has no interest therein. The legal title is still in the probate judge, unless appellee has acquired it by reason of adverse possession. It is not necessary to examine the equitable rights of McDonell as an occupant at the time of the entry of the town site, or to determine whether, if he had rights, he has waived or abandoned them; nor is it necessary to determine whether appellee has acquired rights by adverse possession. The City of Globe threatens, without right, to intrude upon land of which appellee is in possession and to which he claims title. It was proper, therefore, for the trial court to enjoin the city, its agents and officers, and thus protect the possession of appellee. It was not necessary, nor proper, in this view of the case, the trustee not being a party, for the court to adjudge that appellee is entitled to the exclusive possession of the tract of land in controversy. The decree is modified, by striking out that portion of it, and, as so modified, is affirmed. KENT, C. J., and SLOAN, J., concur. In an action by a grantee of the surface holding under deeds reserving the minerals with a right to mine by means of underground workings against the grantee of the rights reserved under conveyances from the same grantor for injuries caused by mining operations to improvements on plaintiff's land, evidence held not to show that defendant caused or contributed to the injury complained of, defeating a recovery, whether plaintiff under the deeds is entitled to an absolute right to subjacent and lateral support to the surface, or whether he has no right to complain of any injury except as results from want of ordinary care in the conduct of mining operations. Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. Action by Alpheus W. Knipe against the Anaconda Copper Mining Company and the Washoe Copper Company. The cause was dismissed as to the first defendant, and judgment was rendered in favor of the second defendant, and plaintiff appeals. Affirmed. John J. McHatton, for appellant. A. J. Shores, C. F. Kelley, and D. Gay Stivers, for respondent. BRANTLY, C. J. This action was brought to recover a judgment for damages against the defendants alleged to have been caused by mining operations conducted by them beneath the surface of plaintiff's land and lands in the immediate vicinity thereof. Some time prior to the conclusion of the trial the action was dismissed as to the Anaconda Copper Mining Company, and thereafter it proceeded as against the Washoe Copper Company alone. For all the land included in what is known as the Leggat-Foster addition to the city of Butte, in Silver Bow county, patent was issued to John A. Leggat and others in 1880, the application being based upon a placer location. Subsequently the land covered by the patent, or a portion of it, was platted into blocks and lots and made an addition to the city. It is alleged in the complaint, substantially, that the plaintiff is and was at the times mentioned the owner of lots 1 and 22 in block 11 of this addition; that he is and was entitled to the quiet and peaceable possession, use, and occupation of the surface thereof, and the earth underlying them to a depth necessary to permit the maintenance of buildings and improvements thereon; that he has held and maintained thereon certain 95 P.-9 buildings for residence and business purposes; that neither the defendants nor any other person or persons have or had any right to carry on any mining or to do any other work beneath the surface thereof, or to do any blasting or other act, or to omit to do any act with reference to the surface of said lots, or any underground portions thereof, which would disturb the lots or the surface thereof in its natural condition, or move or disturb the buildings thereon, or in any wise interfere with plaintiff's quiet and peaceable use and enjoyment thereof; that heretofore, and particularly during the year 1905, and during the possession and ownership of the plaintiff, the defendant has been engaged in carrying on underground mining operations under the surface of plaintiff's premises and in lands in the immediate vicinity thereof, without plaintiff's consent; that it has carelessly, negligently, and wrongfully made excavations by drilling and blasting, using large quantities of powder, thus unnecessarily and carelessly disturbing plaintiff's right and title to the surface and the buildings thereon; that it has left the excavations so made in such an unprotected condition that the surface, being without its natural support, has sunk and settled and is rendered unfit for use, and has cracked and injured plaintiff's buildings; and that by reason of the premises plaintiff has been injured in the sum of $10,000. Judgment is demanded for this amount. In a second cause of action equitable relief is sought by way of injunction to prevent further injury, which it is alleged is likely to result from a continuance of defendant's mining operations. In its answer the defendant Washoe Copper Company, after admitting its corporate capacity, alleges that it is the owner of all the mineral, veins, lodes, ledges, or mineral-bearing quartz and rock, or earth contained in, or belonging to, the lots claimed by plaintiff, with the right to mine for and extract the ores therein by means of underground workings to within 50 feet of the natural surface of the earth in such manner as not to destroy or interfere with the surface. It then denies generally all the other allegations of the complaint. The reply puts in issue the claim of the defendant to the ores underlying plaintiff's lots and its alleged right to mine and extract the same. A trial of the issue thus framed resulted in a verdict and judgment for the defendant. The appeal is from an order denying plaintiff's motion for a new trial. Plaintiff's contention is that the motion should have been granted because of errors in admitting certain evidence and in charging the jury, and because the evidence is insufficient to justify the verdict. We are of the opinion that the motion was properly denied, for the reason that the evidence admitted at the trial would not from any point of view have sustained a verdict for plaintiff for any amount. For this reason it is not a material inquiry whether there was error in admitting evidence or in submitting the charge to the jury; for, even though the errors complained of were gross, nevertheless, if the evidence would not under any view of it have sustained a verdict for plaintiff, the court should have directed a verdict for defendant. Under this condition of the case the plaintiff was not prejudiced by error in admitting evidence upon a matter not pertinent to the issue, nor by errors in the charge. A brief summary of the evidence will be sufficient to demonstrate that another trial could not result differently. Reference to the subjoined diagram shows the situation of plaintiff's premises and of the underground workings of the defendant, and will materially aid in understanding the references to the statements made by the different witnesses. from the same grantor. The shaft through which defendant's operations are carried on is on lot 10 in block 15 at a point marked "Cambers." The crosscut and drifts are shown radiating from this shaft, and are designated by Nos. 100, 180, and 200. The doted lines to the westward on Grant street represent a raise and excavations made in stoping ore under Grant street. The witnesses refer to the workings of the defendant as the "Cambers Mine." It appears that there are seven buildings in all on plaintiff's lots, all of which, except the ones facing Park street toward the north and Galena street. have been more or less damaged by a cracking and subsidence of the earth's surface. The plaintiff stated that he first observed this The land covered by the addition slopes toward the south. The various lots and blocks shown are used for business and residence purposes. The deed under which the plaintiff holds lot 1 in block 11 contains the following reservation in favor of his grantor, who owned both the surface and mineral rights: "Reserving the ores, rock, and mineral, together with the right to mine, prospect for, and extract the same by means of underground workings, only up to a point within 50 feet of the natural surface of the ground, and in such manner as not to disturb, injure, or interfere with the surface of said premises." A similar reservation is contained in his deed to lot 22, with the additional words, "Or damage the buildings or improvements thereon." The rights thus reserved are owned by the defendant under conveyances condition in December, 1902, or January, 1903, and that it was unchanged at the time the action was brought in May, 1905. He expressed the opinion that it was caused by excavations made by the defendant by stoping ore directly beneath the surface of his lots and under the street. Upon further examination, however, it appeared that he had no idea what the condition of the workings in the Cambers mine was, or the extent of them, at the time the subsidence of the earth occurred and his buildings were damaged. The witness Lindsay, an engineer, who had examined the excavations in the Cambers mine and testified for the plaintiff, stated that it was a fair supposition that the settling of the earth and the subsequent cracking of the buildings was caused by the openings on the 100-foot level and the stoping of ore under Grant street, but that he did not know when this work had been done. He expressed the opinion that, if the cracking and damage appeared before these excavations were made, the damage could not be attributed to them. None of the witnesses on the part of the plaintiff had any knowledge of the conditions underground at the time the damage was observed in December, 1902, or January, 1903. It appeared from the testimony of other witnesses, that the excavations to the westward of the Cambers shaft, to the existence of which plaintiff attributed the injury, were not made until long after the injury occurred. In fact, it appears, without contradiction, that none of these excavations were made until as late as April, 1905, or just before this action was brought. It further appears that, owing to extensive mining operations by several other companies to the north of plaintiff's premises, there has been an extensive movement of the earth toward the south, accompanied by a subsidence of the surface and a series of cracks, extending generally from west to east, through the central portion of the city, resulting in damage to all buildings either on the line thereof or in close proximity thereto. One of these openings, attended by a decided change of the level of the surface for some distance on either side of it, extends through the LeggatFoster addition to the north of Galena street, traceable for 1,100 feet westward and 400 or 500 feet eastward from Grant street, affecting buildings having the same situation relative to it, as those of plaintiff, and in the same way, and to a like extent. This is indicated by the dotted line extending through blocks 10 and 11. It does not appear that the operations in the Cambers mine have contributed in any way to this condition, or that they have aggravated it; so that a verdict for plaintiff, upon the issue as presented by the pleadings, could not have been justified by the evidence. But counsel for appellant contends that plaintiff was entitled to a verdict for nominal damages in any event, because the evidence shows without contradiction that the blasting in the Cambers mine during the months of April and May, 1905, was attended by concussions so violent as to break a window in one of plaintiff's buildings on lot 1, and rendered it so uncomfortable that a tenant then occupying it could not remain there. Assuming that under the allegations of the complaint disturbance from concussion could properly be proved as an element of damage, the proof fails to show that the particular disturbance was the result of defendant's operations either alone or in connection with other mining in the vicinity, also attended by blasting. At best the testimony on this subject left the jury no substantial basis upon which to make a finding in favor of the plaintiff. A considerable portion of the argument of counsel in their briefs is devoted to the question whether, under the reservations in plaintiff's deeds, he is entitled to an absolute right to subjacent and lateral support to the surface of his lots and the quiet enjoyment thereof, or whether, having purchased subject to the reservation in favor of the owner of the mineral rights, he has no right to complain of any injury or disturbance, except such as results from the want of ordinary care in the conduct of mining operations necessary to prospect for and extract ore. For the purposes of this case it is not necessary to discuss or decide this question. Whether we should adopt the one or the other view the result would be the same; for, since the evidence fails to show that the defendant caused or contributed to the injury complained of, it is a matter of no consequence what rule of law is applicable. Let the order be affirmed. HOLLOWAY and SMITH, JJ., concur. (14 N. M. 442) READE v. DE LEA. (Supreme Court of New Mexico. Feb. 26, 1908.) 1. HUSBAND AND WIFE-PROPERTY RIGHTSSPANISH LAW-WHAT LAW GOVERNS. It is the settled doctrine of this court that property rights of husband and wife are, except as modified by local statute, to be judged by the Spanish law in force in this territory at the date of its acquisition from Mexico. 2. SAME-COMMUNITY PROPERTY RIGHT OF WIFE DURING MARRIAGE RELATION. Under the community system, which was a part of that system of law, the wife had, until the termination of the marriage relation, no vested or tangible interest in the community property, and her interest therein was a mere expectance, similar to that which an heir possesses in the estate of an ancestor. [Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 917.] 3. SAME-RIGHT OF HUSBAND. Under that system the husband, on the other hand, was, so long as the marriage relation existed, for all practical purposes, the real and veritable owner of the community property. [Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 917.] 4. SAME-SALE BY HUSBAND. Under that system the husband, subject always to the limitation that he should not act in fraud of his wife's expectancy, had, during the marriage relation, full power to sell community property, and it was not necessary that his wife join in the conveyance. [Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 930.] 5. CONSTITUTIONAL LAW - VESTED RIGHTS LEGISLATIVE INTERFERENCE. The right of alienation by his personal deed thus given the husband attaches as a vested right in community property, as such is acquired, and such right is not subject to legislative interference. [Ed. Note.--For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 930.] 6. SAME. The act of March 20, 1901 (Laws 1901, p. 113, c. 62, § 6), providing that neither husband nor wife shall dispose of real estate ac quired during coverture by onerous title, unless both join in the execution of the deed, does not affect such property acquired prior to the passage of the act. 7. SAME. A deed, executed subsequent to that act, for property deeded to the husband, for valuable consideration, previous to the act, and during the marriage relation, conveys the title, although such deed was signed only by the husband. Abbott, J., dissenting. (Syllabus by the Court.) Appeal from District Court, Dona Ana County; before Justice Frank W. Parker. Suit to quiet title by D. M. Reade against Pilar S. De Lea. Judgment for plaintiff, and defendant appeals. Affirmed. One Adolpho Lea and the defendant Pilar S. De Lea, were married in December, 1851, and continued to be husband and wife until the former's death intestate, in Dona Ana county, on April 23, 1902. The premises involved were acquired by two conveyances, running to the husband, Adolpho, dated, respectively, April 6, 1889, and June 14, 1893. In April, 1902, and thus only a few weeks before his death, the husband, for a valuable consideration, executed to D. M. Reade a warranty deed for the land in dispute. The wife did not join in the deed. Reade brought suit to quiet the title against the wife, and the trial court, holding that she had no interest in the land, rendered judgment for Reade, from which decision she prosecutes this appeal. Numa C. Frenger, for appellant. Fall & Moore and Moore & Paxton, for appellee. POPE, J. (after stating the facts as above). The case turns upon the effect of the deed from Adolpho De Lea to Reade. The appellant contends that it conveyed no title because the wife did not join, as required by section 6, c. 62, p. 113, Laws 1901, which provides that "neither husband nor wife shall convey, mortgage, incumber or dispose of any real estate or legal or equitable interest therein acquired during coverture by onerous title unless both join in the execution thereof." The appellee concedes that the property was acquired during coverture by onerous title. He admits that, if that act is applicable, the judgment was wrong. He contends, however, that the act cannot apply to property acquired previous to its date, for the reason that, as to such, vested rights existed in the husband, which it was beyond the power of the Legislature to take away by requiring the wife to join. Was the trial court right in sustaining this view? This involves an inquiry as to what were the rights of the husband in the property prior to the act of 1901. This court has, in a number of cases, dealt with questions of property rights between husband and wife, and has uniformily recognized the civil law, in the absence of specific statute, as controlling. A brief review of former decisions of this court, upon this point, will demonstrate this. In Chavez v. Mc Knight, 1 N. M. 148, decided in 1857, opinion by Judge Brocchus, it was held that the civil law was the rule of practice in this territory, and that by its terms the wife acquires a tacit lien or mortgage upon the property of the husband, to the amount of the dotal property of which he became possessed through her. This case has been referred to in one or two very recent decisions of this court. Ilfeld v. De Baca, 89 Pac. 244; In re Myer, 89 Pac. 246. In Martinez v. Lucero, 1 N. M. 208, decided the same year by the same judge, it was held, applying the civil law, that during marriage the administration of the dotal property belongs exclusively to the husband, and the wife cannot during the conjugal association recover it from her husband, without showing waste or dissipation of it by her husband. In Laird v. Upton, 8 N. M. 409, 415, 45 Pac. 1010 (decision in 1897, by Mr. Justice Collier), reference is made to the community system, and the presumption inhering in that system, that all acquisitions during marriage are community property. In Barnett v. Barnett, 9 N. M. 207, 50 Pac. 337, opinion by Chief Justice Smith, it was held that, in the absence of any statute ascertaining the rights of husband and wife, after legal separation, and during the lives of each, the civil law of Spain governs, and that under this law the wife, by adultery, forfeits the right, which that law gives on dissolution of the community, to one-half of the community property. In Crary v. Field, 9 N. M. 229, 50 Pac. 342, Id., 10 N. M. 257, 61 Pac. 118, the right of the surviving husband, under the civil law, to sell so much of the community realty as may be necessary to pay the community debts is declared, and the validity of such a sale is upheld. In Neher v. Armijo, 9 N. M. 325, 54 Pac. 236, opinion by Mr. Justice Crumpacker, it is held, announcing a familiar civillaw doctrine, that the legal presumption that property acquired by either husband or wife during the matrimony is community property may be overcome by clear and conclusive proof to the contrary. In Gillett v. Warren, 10 N. M. 523, 542, 62 Pac. 975 (opinion by Mr. Justice Parker), the community system is recognized as in force, and it was there held that the surviving husband, not only had the power under the system to sell community real estate in payment of community debts (as ruled in Crary v. Field, supra), but community personalty as well. In Strong v. Eakin, 11 N. M. 107, 66 Pac. 539 (opinion by Mr. Justice McFie), the Spanish law as to community or acquest property is again held to be in force, in so far as not abrogated by statute; and, interpreting that law, it is held that all property acquired and held by husband and wife during coverture is presumed to be community property, and to be subject to community debts, and that every debt contracted during marriage is likewise presumed to be a community debt. In Brown v. Lockhart, 12 N. M. 10, 71 Pac. 1086 (opinion by Chief Justice Mills), the doctrines announced |