9 Nev. 240 | Nev. | 1874
By the Court,
This action was commenced on the 29th day of November, 1872. It is alleged in the complaint that plaintiff is now, and it and its grantors have been since 1859, the own
It is further alleged: ‘ ‘ that the rights of the respective parties to the possession of the said mining ground and premises have never been judicially determined, or settled, or in any manner adjusted.” The prayer is that the defendant may be required to set forth the nature of its claim; that it be decreed and adjudged “that the defendant has no estate or interest whatever in or to said mining ground, and that the title of plaintiff is good and valid; that the defendant be forever barred from asserting any claim whatever to said mining ground,” etc.
The defendant, in its answer, denies the ownership and possession- of plaintiff and avers “that at the commencement of this action, and for a long time prior thereto, it was, and still is, the owner of and in the possession of and entitled to the possession of said mining ground * * and every part thereof.” And for further answer, pleads the statute of. limitations.
. The cause was tried before the court without. a jury. From the findings of the court it appears “-that sometime in the fall of 1859, a shaft was commenced on the northern end of the ground in dispute in this action by some persons claiming to represent a company called the 420 Company, and thereafter down to the early part of the year 1863, work was done in three different shafts on the ground in dispute, by persons claiming to work for a company called the 420 Company; that no further work for any company of that name is shown to have been done until sometime in the year 1865, when some persons commenced work in a shaft on said ground claiming to work for the 420 Company, and contin
1. To avoid the statute of limitations, it is claimed by appellant that this action is brought under an act of congress; and hence, that the limitations provided for by ,the statute of this State do not apply. The act of congress provides that where an adverse claim is filed within the time and in the manner specified in said act, certain proceedings “ shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the
Congress did not by the passage of this act, or by the acts passed July 26, 1866, and July 9, 1870, confer any additional jurisdiction upon the state courts. The object of the law, as we understand it, was to require parties protesting against the issuance of a patent to go into the state courts of competent jurisdiction and institute such proceedings as they might under the different forms of action, therein allowed, elect; and there try “the rights of possession” to such claim and have the question determined. The acts of congress do not attempt to confer any jurisdiction, not already possessed by the state courts; nor to prescribe a different form of action. If the parties protesting are in possession of the ground in dispute, they can bring their action under sec. 256 of the Civil Practice Act (Stats. 1869, 239,) or, if they have been ousted from the possession, they could bring their action of ejectment; and in either action “the rights of possession ” to such claim could be finally settled and determined. We are of opinion that when the action is brought, whatever may be its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes that apply to such actions in
To have maintained any action in our State courts “to try the rights of possession ” to a mining claim, the plaintiff must have shown that it, or those through or from whom it claims “were seized or possessed of such 'mining claim, or were the owners thereof, according to the laws and customs of the district embracing the same, within two years before the commencement of such action.” 1 Comp. L. 1019, Sec. 4.
2. But it is argued by appellant’s counsel that owing to the pendency of the suit of the “Bullion Mining Co. v. Four Twenty Mining Co.,” until June, 1872, the defendant in tbia suit is concluded from asserting any rights or privileges under the statute of limitations. This position is sought to be maintained upon the theory that the defendant by allowing that suit to remain is estopped from proving, in this action, that the Eour Twenty Mining Company was not in possession at the time of the dismissal of said suit, counsel claiming that as long as said suit.remained pending in said court it amounted to -a continuous allegation, from day. to day, that the Eour Twenty Mining Company was in possession; and that said suit not having been dismissed until the 3d day of June, 1872, the statute did not begin to run until that time.
We consider this position wholly unsupported by reason or authority. The general doctrine announced in the authorities cited by appellant to the effect that no man can take advantage of his own wrong and thereby sustain a defense of which in conscience he ought not to be permitted to avail
8. The findings of the court are sufficient to show that the possession of defendant was “open and notorious.” The objections urged by appellant upon this point are clearly untenable.
4. Appellant contends that the entry of defendant in 1865 should be construed simply as an assertion of the rights it claimed in the action of ejectment. The averments of the complaint in said action, although subject to criticism, will hardly justify the position upon which said claim is founded, to wit: that the defendant claimed merely a right of tenancy in common with the plaintiff. When the plaintiff was forcibly ousted the defendant claimed the whole of the
The judgment of the district court is affirmed.