29 Nev. 578 | Nev. | 1907
By the Court,
This is an appeal from the judgment and from an order denying defendants’ motion for a new trial.
The action was brought for the recovery of the possession of a certain mining claim in Bullfrog Mining'District, Nye County, called the "Ella May No. 1,” and for damages for the withholding thereof. The complaint alleges that the plaintiffs were on the 13th day of April, 1905, the owners of, in the possession of, and entitled to the possession, and are now such owners and entitled to the possession, of the said claim, particularly describing it; that, the plaintiffs being so possessed, the defendants on the 13th day of April, 1905,
The answer denied the allegations of the complaint and alleged: "That defendants on the 13th day of April, 1905, were, ever since have been, and now are, the owners, subject to the paramount title of th'e United States, in possession and entitled to the possession, of the real estate or, mining ground mentioned and described in the complaint, by location thereof on the 13th day of April, 1905, as a lode mining claim under and by virtue of, and in full compliance with and in conformity to, the laws of the United States and of the State of Nevada, relative to mineral locations made on, and the acquisition of, the public domain of the United States; that whatever right, if any was ever acquired by plaintiffs in and to the real estate or mining ground mentioned and described in the complaint, was by the location thereof as a lode mining claim on the 10th day of September, 1904, naming and designating the same the 'Ella May Lode Mining Claim,’ but no discovery shaft, cut, crosscut, tunnel, or open cut was in manner and form as provided by law, or at all, sunk, run, or opened upon said mining claim and location, and said claim and location were abandoned by plaintiffs, and said real estate or mining ground by them on the 13th day of December, 1904, relocated as the Ella May No. 1 lode mining claim, but the boundaries thereof were not in any manner, or at all, marked, defined, or designated, and the location of said ground so standing when the defendants located the same as aforesaid.” With the issues thus made by the pleadings, the parties went to trial.
The proofs showed that on the 10th day of September, 1904, the plaintiffs posted a location notice upon the ground in question designating the claim as the "Ella May.” Subsequently, and within the time allowed by law, they monumented and marked the boundaries of the claim, and performed their location work as they then supposed within the limits of their said claim, after which, on or about the 7th day of December, 1904, they filed a certificate of their
"Notice of Relocation. Notice is'hereby given that the undersigned hereby locate and claim the following-described piece of mineral bearing ground as a lode claim: From this discovery monument 410 feet in S. 3° 10' west direction and 750 feet in a N. 23° E. and 300 feet on each side of the middle of the vein. The south end-line is identical with the north end-line of the Pearlie lode claim and the Little Jim lode claim laps this claim on the west side. The general course of the vein or ledge is S. 3° 10' W. and N. 23° E., and the size of the claim is 1160 feet long by 600 feet wide, this claim shall be known as the Ella May No. 1. Situate in Bullfrog Mining District, Nye County, Nevada. Relocated this 13th day of December, 1904. This claim is marked at each corner and on each side-line center by a mound of rock and a rock chiseled with description of corner and is relocated to better describe the locus of said claim. Locators: J. G. Ford, J. H. Ford, J. T. Wheeler, O. R. Ford. Location work consists of cut about 250 feet N. E. of this monument, work equal to 240 cu. feet. Same recorded.” Plaintiffs then excavated a new discovery cut within the boundaries of their claim as modified. On March 31,1905, plaintiffs filed with the county recorder, but not with the district recorder, another or additional location certificate.
On the 13th day of April, 1905, the defendants, appellants herein, entered upon the ground in question, and posted a location notice thereon reading as follows: "Notice of Location. The undersigned hereby give notice that we have located a claim on a lode or vein. (1) The name of said loca*585 tion or claim is the Winifred. (2) The name of the locators is as follows, to wit: William Campbell, three-fourths, Add Rickard, one-fourth. (3) The claim was located on April 13,1905. (4) Number of lineal feet claimed in length along course of the vein each way from, the point of discovery, with the width on each side of the center of the vein, and the general course of the vein or lode as near as may be is as follows, to wit-- Situated in the Bullfrog Mining District, County of Nye, State of Nevada, commencing at the discovery monument and running 1,100 feet north and 400 feet south from the monument, together with 300 feet on each side of the center of the vein. This ground was formerly held by J. H. Ford, Wheeler, and others, and known as Ella May No. 1, but they, not having complied with the law, have forfeited their rights to said claim. -This claim is 1,500 feet long and 600 feet wide, and is about 1,200 or 1,400 feet west of the Denver lode. Witness our hands this 13th day of April, 1905. [Signed] William Campbell, %ths, Add Rickard, %th. Witness: E. M. Swan.”
They subsequently monumented and marked the boundaries of their said claim, sunk a discovery shaft, and filed a certificate of location with the district and county recorder, within the time required by law for such acts to be performed. It appears both from defendants’ answer and their notice of location that defendants recognized that the plaintiffs had initiated a valid location of the claim in controversy, but contend that whatever rights plaintiffs had to the mining ground had been forfeited for noneompliance with the law before the defendants made their entry and location.
To support the position of appellants, the principal contention made is that the plaintiffs and respondents never made a valid record of their claim, and that such record is an essential part of a valid location. Section 3 of "An act relating to the location, relocation, manner of recording lode and placer claims, mill sites, tunnel rights, amount of work necessary to hold possession of mining claims and the right of coowners therein” (Comp. Laws, p. 43, sec. 210): "Within ninety days of the date of posting the location notice upon the claim the locator shall record his claim with the mining
The contention of counsel for appellants is well taken, that where there is a district recorder, whose place of business is publicly known, to make a valid record, it is essential to record the certificate of location of a mining claim within such district with the district recorder, as well as with the county recorder. Section 25 of the act heretofore mentioned reads as follows: "Where there is no mining district, or where a district having once existed the residence of the officers within the district and their places of business within the district where the books are kept are not publicly known, district recording shall not be required of the locator or claim owner. But recording shall be required in the office of the county recorder in all eases; as well where there is a district recorder as where there is none.” (Comp. Laws, 232.) This section, construed in connection with section 3, heretofore quoted, shows, we think, clearly that it was the legislative intention to require recording of certificates of location with the county recorder in all cases, and, in addition, with the district recorder in cases where the office of such recorder within the district where
It is further contended that neither of said certificates are sufficient in form, for the reason neither contains a description of the location of the claim with reference to some natural object or permanent monument as will identify the claim as is required by subdivision 3 of section 3, supra. The description given in both certificates is substantially the same, and is as follows: "Said claim is situated'about two miles from the Town of Amargosa.” No direction is given, and the claim might be anywhere within an area of from six to eight square miles, and still answer to the description given. We think.it needs no argument to convince the mind that such a description is not a substantial compliance with the requirements of the statute, even though the courts are very liberal in such matters, and ordinarily it is a question of fact for the jury to determine. (Brady v. Husby, 21 Nev. 453, 33 Pac. 801.) So far as the certificates of location in question in this case are concerned, plaintiffs are in no better position than if no certificate or certificates had been made or filed.
This leads to an inquiry into the proposition most strenuously contended for by appellants’ counsel — that under the mining laws of this state recordation in the manner prescribed .by law is necessary to perfect a valid location; in other words, that it is an essential part of the location itself. In this contention we cannot agree. The recording of a mining claim by the laws of Congress is not made an essential requisite to a valid location. (Haus v. Victoria Copper Co., 160 U. S. 303, 16 Sup. Ct. 282, 40 L. Ed. 436; Brady v.
Section 24 of the mining act of this state reads as follows: "Certificates of location and of labor and improvements necessary to hold claims need not' be sworn to, and are not required to be in any specified form, nor to state facts in any specific order; but must .truly state the required facts.” (Comp. Laws, 231.) Counsel for appellants urges that the words in this section " necessary to hold claims ” refer to the words "certificates of location.” We think the legislature intended them to refer alone to the words "labor and improvements.” The labor and improvements mentioned in this section refer, we think, to the provisions of the federal statute requiring the expenditure of $100 a year annually in labor or improvements in order to hold a mining claim prior to the issuance of patent. Sections 24 and 25 were not originally a part of the general mining act passed by the legislature of 1897, but were added to the act by an act amendatory of and supplemental to the original act passed by the legislature of 1899. Section 10 of the original act (Comp. Laws, 217) required certificates of labor or improvements "required by law to be annually performed or made upon any mining claim” to be in the form of an affidavit. This requirement, among other things, is obviated by the provisions of the added section 24. The construction we have placed on this section is further borne out by the language of section 9 of the act, which, in part, reads: "The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to wit: One hundred dollars annually. * * *” (Comp. Laws, 216.) By referring to the title of the mining act, heretofore quoted, it will be observed that one branch of the legislation covered by the statute is the location, another is the relocation, and another is the manner of recording
Counsel for appellants contends that the words " shall record his claim” used in section 3 above quoted shows that the legislature intended recording to be an essential step in perfecting a valid location. Similar language is used in section 14 (Comp. Laws, 221) of the same act relative to the certificate of location of a placer claim; in section 17 '(Comp. Laws, 224) relative to the location of a mill site, and in section 21 (Comp. Laws, 228) relative to the location of a tunnel right. In all these various sections is the-provision that, if the certificate as recorded does not contain all the requirements named, such record shall be void. If the legislature had intended that the location shall be void if the record was not made as required by the particular section of the statute, it would have been very easy for it to have said so. Upon the contrary, it has said, not once, but repeatedly, that such record shall be void. The statute provides that these records when properly made are prima facie evidence of the recitals therein contained.' Where such records are not made and filed in the manner required by law, they are declared to be void, and hence they cannot be used to establish prima facie the facts which they recite. If a certificate of a mining location was filed which conformed in every particular to the requirements of the statute, with the exception that it failed to set forth the location of the discovery shaft,, the certificate would, under appellants’ counsel’s contention, not only be void as a record* but the whole location would be void, unless the record was corrected before an intervening location was made. If this contention were correct, then, the legislature has, in effect, prescribed that a mere oversight in omitting something required in the record is sufficient to work a forfeiture of valuable mining rights. Such intention we think ought not to be imputed to the legislature, except upon the very clearest language, not susceptible to any other reasonable construction.
Commenting on the same provision of our statute, Judge
It appears from the transcript that the plaintiffs rely upon proof independent of any recorded certificate to establish a valid location of the Ella May No. 1 claim. It is contended by appellants that the proofs show that the plaintiffs abandoned their first location of the Ella May claim, and relocated it as an abandoned mining claim, and that they failed to comply with the requirements of law in reference to the location of abandoned mining claims. The trial court found that it was not the intention of the plaintiffs to abandon their rights, whatever they were, under their prior location; and we think the evidence and circumstances of the case justify this finding. When plaintiffs discovered by the survey that their location work was upon a prior existing claim, they posted a notice that they abandoned such work. This of itself evidenced an intention not to abandon any rights they might still have in their location beyond the area in conflict. They did not remove their first notice' from the location monument, and the so-called "notice of relocation” in terms stated the purpose for which it was posted, to wit: "This claim * * * is relocated to better describe the locus of said lode claim.” It may be that the plaintiffs did not adopt the best course in the premises, or use the most explicit language, but is quite certain that they were acting in good faith, and that no intervening rights were prejudiced. (Lockhart v Johnson, 181 U. S. 516, 526, 21 Sup. Ct. 665, 45 L. Ed. 979; Lindley on Mines, 2d ed. 330.)
Appellants contend that there is no sufficient showing of a discovery upon the Ella May claim; that the location work is insufficient in amount and does not disclose a lode or vein of mineral in place; and, further, that the markings of the boundaries are insufficient. As to the question of discovery, even if that question were not taken out of the case by the pleadings as we think it is (1 Lindley on Mines, 2d ed. 404), the most that can be said is that there is a substantial conflict in the evidence upon this question, and, where such is the case, this court has repeatedly held that it will not disturb the finding of the trial court. The same may also, we
Other alleged errors are assigned in the transcript, but the views we have already expressed regarding this case make it unnecessary to refer to them.
For the reason given, the judgment and order of the trial court are affirmed.
