29 Nev. 169 | Nev. | 1906
By tbe Court,
This is an action of ejectment to recover possession of a certain mining claim in Goldfield Mining District, Esmeralda County. Upon tbe trial of tbe cause in tbe court below, after plaintiffs bad offered tbeir evidence, counsel for respondents interposed a motion for a nonsuit. Tbe motion was granted, and judgment entered accordingly. Plaintiffs appeal from tbe judgment, and from an order denying tbeir motion for a new trial.
The principal question, presented in this case, and the only one argued by counsel for respondents, is whether the evidence offered and admitted was sufficient to entitle plaintiffs to recover under the pleadings. The trial court, in ruling upon the motion for a nonsuit, held that the plaintiffs had failed to show that they had made a discovery upon which a mining location could be based. As the question whether there was any evidence upon the part of the plaintiffs establishing, or tending to establish, a discovery as a basis for the location of the mining claim called the "Ramsey Extension,77 has been the only material question considered by counsel upon both sides, the evidence will be reviewed solely with reference to this one question. Excluding all reference to matters clearly immaterial, the following is substantially the testimony admitted upon the trial:
The testimony of A. D. Myers, one of the defendants, was taken by deposition. His ’testimony was admitted as follows: "Q. Where is your place of residence? A. Goldfield, Nevada. Q. What is your occupation? A. Miner and prospector. Q. Have you located any mining claims up there? A. Yes, sir. Q. Mr. Myers, have you a notice of location of a claim in your possession that was upon the claim known as the 'Idol’s Eye’ on the 26th day- of August, 1903? A. Well, I don’t know whether the notice I have was on then or not. (Here the witness hands a notice to Mr. Reynolds, attorney for plaintiffs.) * * * Q. Did you see any notice on the
Samuel Fox, one of the plaintiffs, testified as follows: "I know James Ennis, Carl Schmidt,, and T. L. Oddie. I know the mining district called ' Grandpa Mining District.’ * * * I located ground in the Grandpa District about the 28th day of May, 1903. The name of the claim that I located was the 'Ramsey Extension,’ which was located in Goldfield Mining District. * * * On or about the 25th day of August I left Tonopah to go and finish some work that was started on the claim. We camped on the other side of Klondike Wells. On the morning of the 26th we hitched up and started out
James Ennis, one of the plaintiffs, testified as follows: "On or about the 28th day of May, 1903, Mr. Oddie, Mr. Fox, and myself entered into an agreement with Mr. Schmidt to locate and prospect for mining claims. * * * He (Schmidt) returned the following Saturday; I think it was the 30th. Fie returned and brought with him some samples. I saw the samples. * * * The following Sunday we took the samples to Mr. Oddie’s office, and asked Mr. Oddie to have them assayed, and the rock showed values. When it showed values, Mr. Fox, Mr. Oddie, and I decided to send Mr. Schmidt there to do the location work, and if I remember right, on the 3d day of June he left Tonopah for Grandpa to do the location work on this claim. We furnished him with a team and provisions. Q. Do you know that he did any work? A. All I know is what he told me after he returned. After he returned we decided to send him there again to complete the work. By that I mean put the hole down the proper depth according to law; he had only dug a few feet. He did not go right back again. Q. Did you hear anything that he did or did you know of anything? A. He dug a hole out there. I learned that he had discovered a vein, and we decided to complete the work — decided to send Mr. Schmidt out there again to complete the work. I left Tonopah about the 7th day of August, 1903. The day I was leaving I saw Mr. Fox. I told him I was out of work, and wanted him to go out and do the work, and whatever my share was I would contribute. From what Mr. Schmidt told me I know that the notice of location which was offered in evidence was taken from the Bamsey Extension.”
Harry Stimler testified as follows: "In 1903 I resided in
John W. Cuddebaek, testified as follows: "I was residing in Goldfield on or about the 28th day of May, 1903, and resided from that time up until the 26th of August, 1903. My business is that of mining and teaming. I have been mining about twenty years. Q. Do you know the general appearance of the land in and about Goldfield, as to its being mineral, or otherwise? A. I do. Q. Do you know the land claimed and known as the 'Idol’s Eye Mining Claim’? A. Yes, sir. Q. Do you know the land that was claimed and is the Ramsey Extension mining claim? A. Yes, sir. Q. On the Ramsey Extension is there what is known and called an 'outcropping’? A. There is.”
The following is a copy of the location notice referred to in the deposition of A. D. Myers, which was admitted in evidence, marked "Plaintiffs’ Exhibit A”:
"Notice of Location of Quartz Claim. Notice is hereby*182 given to all to whom it may concern: That James Ennis, S. Fox, L. F. Oddie, C. Schmidt, citizens of the United States, over the age of 21 years, having discovered a vein or lode of quartz, or rock in place, bearing.within the limits Of the claim hereby located, have this day under and in accordance with the Revised Statutes and other laws of the United States, located 1,500 linear feet of this vein or lode, with surface ground 600 feet in width, situated in Grandpa Mining District, County of Esmeralda, State of Nevada, and known as the Ramsey Ext. quartz mining claim, and extending.feet to.and .feet to. from this notice.at the discovery or prospect shaft, the exterior boundary of this claim being distinctly marked by reference to some object or permanent monuments, and more particularly described as follows, to wit: Commencing from this location monument and running 800 feet southerly and 1,200 feet northerly direction. And we intend to hold and work said claim as provided by the local customs and rules of miners and the mining statutes of the United States. Dated on the ground this 28th day of May, A. D. 1903. Attest: James Ennis.”
In considering the question whether the evidence produced by the plaintiffs was sufficient to establish the fact of a discovery by them upon the Ramsey Extension claim, it must be understood that the evidence is to be tested by the rules governing in the case of rival claimants to the same mining ground, taken in connection with the liberality with which evidence is construed in favor of the plaintiffs on a motion for a nonsuit. Upon the latter proposition, this court in the case of Patchen v. Keeley, 19 Nev. 409, 14 Pac. 347, had occasion to say: "In considering the court’s ruling in granting the nonsuit, we must take as proven- every fact which the plaintiff’s evidence tended to prove and which was essential to his recovery, and give him the benefit of all legal presumptions arising from the evidence.” We also quote with approval the following language of the Supreme Court of California in'the case of Hanly v. California, Bridge Co., 127 Cal. 237, 59 Pac. 577, 47 L. R. A. 597: "The motion for á nonsuit admits the truth of the plaintiff’s evidence, and
In Migeon v. Montana Cent. Ry. Co., 77 Fed. 254, 23 C. C. A. 161, the United States Circuit Court of Appeals, in an opinion written by Judge Hawley, points out in the following manner the distinction that exists in various classes of eases, upon the question of the proof that will be required to establish a discovery: "There are four classes of cases where the courts have been called upon to determine what constitutes a lode or vein within the intent of different sections of the Revised Statutes: (1) Between miners who have located claims on the same lode, under the provisions of section 2320 [U. S. Comp. Stats. 1901, p. 1424], (2) Between placer and lode claimants under the provisions* of section 2333 [U. S. Comp. Stats. 1901, p. 1433], (3) Between mineral claimants and parties holding townsite patents to the same ground. (4) Between mineral and agricultural claimants of the same land. The mining laws of the United States were drafted for the purpose of protecting the bona fide locators of mining ground, and at the same time to make necessary provision as to the rights of agriculturists and claimants of townsite lands. The object of each section, and of the whole policy of the entire statute, should not be overlooked. The particular character of each case necessarily determines the rights of the respective parties, and must be kept constantly in view, in order to enable the court to arrive at a correct conclusion. What is said in one character of cases may or may not be applicable in the other. Whatever variance, if any, may be found in the views expressed in the different decisions touching these questions arises from the difference in the character of the cases, and the advanced knowledge which experience in the trial of the different kinds of cases brings to the court. * * *
"The fact is that there is a substantial difference in the . object and policy of the law between the cases where the determination of the question as to what constitutes the discovery of a vein or lode between different claimants of
The same court in Shoshone M. Co. v. Rutter, 87 Fed. 801, 808, 31 C. C. A. 223, again said: "Thepurpose of the statute, in requiring that 'no location of a mining claim shall be made until the discovery of a vein or- lode within the limits of the claim located,’ was to prevent frauds upon the government by persons attempting to acquire patents to land not mineral in its character. But as was said in Bonner v. Meikle, (C. C.), 82 Fed. 697: 'It was never intended that the court should weigh scales to determine the value of mineral found, as between a prior and subsequent locator of a mining claim on the same lode.’ The location of the Kirby was made in 1886. The discovery of mineral then made was sufficient to induce the locators and their grantees to perform the amount Of annual labor thereon as required by the mining laws — to expend their time and money in prosecuting the work thereon — in the belief and expectation of finding ore of
The evidence in this case shows that, at or near the location monument of the Ramsey Extension claim, there was an outcropping, and we think it may be inferred from the evidence that this 'outcropping carried values. We think it also may be inferred from the evidence that the plaintiffs intended to base their claim of a discovery upon this outcropping when they erected the monument and posted their notice of location of the Ramsey Extension claim upon or near it. It is not necessary to determine whether this state of facts alone would be sufficient to justify the trial court in denying the motion for a nonsuit; but, taken in connection with other facts which are shown, or which may be inferred from the evidence, we think the showing was sufficient to require that the motion be. denied. The contention of counsel for appellants has not been questioned that the location monument of the Idol’s Eye claim and the location monument of the Ramsey Extension claim were one and the same. This fact may be inferred from the evidence, and for the purposes of the motion it should be considered as an established fact. Our statute (Comp. Laws, 208) requires that the notice of location be posted "at the point of discovery.” Therefore, when a locator erects a location monument and puts his location notice thereon, he, in effect, declares that at that point he has made a discovery. This is so in order that another prospector going upon the same ground may not only see that some one else claims to have initiated a location, but upon what discovery, or alleged discovery, if any, such claim is based. Many years prior to the 'adoption of our statute this court had occasion to refer to the importance of having the location notice posted at an appropriate point upon or near the ledge.
In the case of Gleeson v. Mining Co., 13 Nev. 465, the court said: "A notice is generally, and for safety ought always to be, posted immediately upon the discovery of the vein, before there is any time to survey the ground and ascertain the bearings and distances of natural objects or permanent monuments in the neighborhood; and, besides, the claim referred to by the notice is always sufficiently identified by the fact that it is« posted on, or in the immediate proximity to, the croppings. A notice, claiming a location on 'this vein’ has only one meaning.”
It will be seen that our statute has gone farther and makes it the duty of the locator, after he has made a discovery, to put his location notice at such point of discovery. Proof of posting a location notice at a certain point, containing a recital therein that a discovery had there been made, as in the case of the Ramsey Extension notice, would not be evidence prima facie‘ of a discovery, as contended for by counsel for appellant, for the reason, if for none other, that the statute does not require the making of such a declaration in the notice. (1 Lindley on Mines, 2d ed. 392; 2 Jones on Evidence, 521.) Proof, however, that a notice was posted at a certain point establishes that at that point the locator claims a discovery. When it was shown that the Idol’s Eye location notice was placed at the same point as that of the Ramsey Extension, it put the defendants in this action also in the position of claiming a discovery at the same point that the plaintiffs did. Both sides claiming a discovery at the same point would warrant the presumption, in the absence of a showing to the contrary, that both based their claim of a discovery upon the same natural conditions, and, where such a showing exists, the court is justified, at least for the purpose of the motion, in pre
For the reasons given, the judgment and order are reversed, with directions to the lower court to grant a new trial.