No. 1858 | Nev. | Apr 15, 1910
Lead Opinion
By the Court,
This action concerns the title to a certain piece of mining ground on Prospect Mountain in the Eureka Mining District, Eureka County, Nevada. The ground in question appears to have been embraced within the several mining claims following, named in the order of their location: Grindstone, Sam Tilden, Beehive, and Fannie. Plaintiffs instituted this action October 13, 1906, basing their right to recover upon the Fannie location. Prior to making this last-named location, the plaintiffs had been lessees of the said John Pardy, deceased, who was an original defendant, andAvho died subsequent to the rendition of judgment in the action. Plaintiffs based their right to recover upon the Fannie location upon the theory that the Beehive location was void because of the fact that its locator, the said John Pardy, was at the time of making the location a deputy United States mineral surveyor. After the defendants had filed their answer to plaintiffs’ complaint, proceedings were suspended in the court below for the reason that the question of the right of a deputy mineral surveyor to locate a mining claim was then pending in this court in the case of Hand v. Cook, 29 Nev. 518" court="Nev." date_filed="1907-10-15" href="https://app.midpage.ai/document/hand-v-cook-6670498?utm_source=webapp" opinion_id="6670498">29 Nev. 518. The decision of this court in the Hand v. Cook case, supra, having been adverse to plaintiffs’ contention, plaintiffs appeared in court in, person and dismissed their complaint. Prior to the dismissal of the complaint, Henry K. Mitchell, who had been the attorney for the plaintiffs, was granted permission to intervene and filed a complaint in intervention, claiming title to the ground in controversy by virtue of a deed, elated March 15, 1907, for the Sam Tilden claim from one Maurice Hartnett. The defendants’ objection to the right of the said Henry K. Mitchell to
The case was tried upon the issues raised upon the complaint in intervention and the amended answer thereto. The defendant J. H. Byerly having no interest in the controversy other than that of lessee of the defendant John Pardy, and his lease having expired prior to the entry of judgment in the case, judgment was entered in favor of the defendant Pardy. The Sam Tilden location was made by the said Maurice Hartnett March 9, 1889. The Beehive location was made by the defendant Pardy July 27, 1899, and covers the major portion of the Sam Tilden claim. These two locations are the only ones directly involved in the action. The issues as made by the defendants were a denial of the allegations of the inter-vener; the allegation of the location of the Beehive; the possession thereunder continuously from the time of such location; that such possession was open, adverse, and notorious; the forfeiture of the Sam Tilden claim; and, also, a special plea of the statute of limitations of both two and five years. The case was tried by the court; but the court, deeming certain equitable features to be involved in the case, impaneled a jury in an advisory capacity. General and special issues were submitted to .the jury, which were found in favor of the defendant Pardy. The findings were adopted by the court, and a decision and judgment entered in favor of said defendant. From the judgment, and from an order denying the inter-vener’s motion for a new trial, the intervener has appealed.
The motion for new trial was based upon the grounds: (1) Insufficiency of the evidence to justify the decision of the court, and that such decision is contrary to the evidence, and that the same is against law. (2) Errors in law occurring at the trial and excepted to by the intervener.
A preliminary question is raised by counsel for respondents which goes to the jurisdiction of the lower court to entertain the complaint in intervention. We need not, we think, determine whether the intervener had such an interest in the result of the suit between the original plaintiffs and defendants as would entitle him to intervene, or whether the situation pre
The statement on motion for new trial presents nine assignments of error, which we will consider in order.
Error is assigned in admitting in evidence the laws or regulations of the Eureka Mining District. These regulations were offered in evidence in support of defendants’ objection to the admission in evidence of the notice of location of the Sam Tilden claim; defendants contending that such notice was not in accordance with the district regulations. The objection to the admission of the notice in evidence was overruled and the notice admitted. Even conceding, for the purposes of this case, that those regulations were erroneously admitted, appellant was in no way injured thereby.
Error is assigned in the ruling of the court excluding as evidence a certain notice recorded by the said Maurice Hartnett, December 19, 1893, in the office of the county recorder of Eureka County, which notice was filed in pursuance of the act of Congress relieving locators from the necessity of doing annual labor for the year 1893. This notice was offered for the purpose of proving an act of ownership upon the part of intervener’s grantor at the time of filing such notice. As this notice was filed nearly six years prior to the date of the initiation of defendants’ claim, and as they have not questioned the ownership of the Sam Tilden claim by intervener’s grantor prior to the date of the location of the Beehive claim,
Error is assigned in the ruling of the court excluding the evidence of Maurice Hartnett offered for the purpose of proving that the Sam Tilden claim was one of a group of claims known as and called the Excelsior Group. It is difficult to understand the making of this assignment, in view of the fact that the record upon appeal contains the following from the testimony of the said Maurice Hartnett: "Maurice Hartnett then testified: 'That the property conveyed was and is the Sam Tilden in suit and constitutes one of the Excelsior Group which he conveyed by the deed offered.’ ” The deed which was admitted in evidence over the defendants’ objection also described the claim as one of the Excelsior Group.
Error is assigned in overruling intervener’s objection to the testimony of W. C. Stewart and A. R. Gibson relating to a lease from the defendant Pardy. This evidence, we think, was clearly admissible as showing or tending to show possession by Pardy and work done or being done upon the claim in question. While, at the time this evidence was offered, defendant Pardy had not offered his proof of location of the Beehive claim, this evidence was subsequently supplied. The court has the discretion to admit evidence out of the regular order, subject to the supplying of other evidence later which will establish its relevancy or materiality.
Error is assigned in sustaining the objection interposed by the defendants to a question asked the witness A. R. Gibson to explain how or why he and his partner gave up their lease. The witness had previously testified that he and his partner, Stewart, had given up their lease. Conceding, without deciding, that the question was permissible in cross-examination, we are unable to see wherein the exclusion of this testimony could possibly have been prejudicial to the intervener, as it ¡was not material to the issues presented.
Error is assigned in admitting as evidence defendants’ notice of location of the Beehive mining claim. A notice of location of a mining claim is not required to be recorded under the statutes of this state. (Comp. Laws, 208, et seq.) Comp. Laws,
A further objection to the admission in evidence of the notice of location of the Beehive claim is based upon " a variance between the allegata and probata, in this, that the answer alleges its first course to be at a point commencing south 30% degrees east, 292 feet, from the southwest corner of Eldorado patent No. 140, and its last course to be thence south 30% degrees east, 840 feet, while the notice offered claims in each course above stated 32% degrees east” We think this objection is without merit. Notices of location are not required to be strictly exact, and they are not controlling. The courses and distances described in the notice yield to the monuments
Error is assigned in the finding made by the trial court that a vein, lode, or rock in place was discovered at the time of the Beehive location or in sinking the discovery shaft. It may be seriously questioned whether the evidence shows a discovery in the so-called "discovery shaft” The evidence, however, shows clearly that the defendant Pardy subsequently found valuable ore in other workings upon the claim, some of which ore was extracted and shipped and -was of a value in excess of $100 per ton. It is a reasonable deduction from the evidence that the work done in other parts of the claim where ore was unquestionably discovered was more than the equivalent of that required for a discovery shaft. Conceding, without deciding, that this finding was erroneous, it does not, we think, affect the result in this case.
The last assignment of error goes to the sufficiency of the evidence to justify the decision and judgment. The defendant Pardy, after testifying that he located the Beehive claim at the time stated in the notice, and that he built posts or monuments at the corners described, further testified: "I did $100 worth of work on the Beehive mine for the year 1899, after my location of the claim, and each year since, up to the present time, I have done $100 worth of work on the Beehive. When I located the Beehive mine, I was familar with the ground on which it is located and with the surrounding ground. The ground I located was unoccupied and open to location as mining ground. At the time of my locating it, there had not been any work done on the ground located as the Beehive for a period of at least eight or ten years. I examined the ground and ascertained that the annual labor had not been performed on it, since the time of my location of the Beehive mine. I have had the open and actual possession of the ground against Maurice Hartnett and his grantee as alleged, H. K. Mitchell, and against all others up to the commencement of this suit. Maurice Plartnett, nor any one else, ever informed me I had located ground of his. Maurice Hartnett knew I was working the ground, and did not interfere with my so doing. For over
A. R. Gibson, a witness for defendant Pardy, testified that he, together with W. C. Stewart, had leased the Beehive claim from the defendant Pardy and had extracted ore therefrom and shipped the same to reduction works; that the said Maurice Hartnett was aware of the work being done by them upon the Beehive claim, but made no claim whatever that he owned the property. The witness further testified that he had been familiar with the property for a number of years, and that the annual labor was not done on the ground for many years until the Pardy location was made.
W. C. Stewart testified that he was associated with the witness A. R. Gibson in a lease of the Beehive mine from the defendant Pardy; "that Maurice Hartnett knew of the said lease and of the work the said Stewart and Gibson were doing on the said Beehive mine; and that the said Hartnett never objected thereto, but, on the contrary, lent them some tools to work with on the said mine.”
The contention madé by counsel for appellant that the proof shows that the end lines of the Beehive claim are not parallel is of no force in this case, as such a fact, if it be a fact, does not make the location invalid, but could only affect extralateral rights, which are not involved in this case. (Section 365, Lindley on Mines.)
There is evidence in this case that, at the time of the location of the Beehive claim, the Sam Tilden claim was subject to forfeiture for failure to do the annual labor required; that, since the location of the Beehive claim, the defendant Pardy
The judgment and order appealed from are affirmed.
Concurrence Opinion
concurring:,
I concur in the affirmance of the judgment of the district court in favor of the defendants for reasons not relating to the invalidity of the location of the Beehive by John Pardy at the time that he was United States deputy mineral surveyor. If the action as between the intervener, who is in the position of a plaintiff, and the defendants, who are the only parties to this appeal, depended upon whether such a surveyor could make a valid location of a mining claim, it might be proper for this court to frankly reverse its decision and correct its conclusion in Hand v. Cook, 29 Nev. 518" court="Nev." date_filed="1907-10-15" href="https://app.midpage.ai/document/hand-v-cook-6670498?utm_source=webapp" opinion_id="6670498">29 Nev. 518, because the federal courts, acting within the jurisdiction vested in them for finally construing federal enactments, as well as the United States land office and the Supreme Court of Utah, have placed an interpretation upon the act of Congress the reverse of that given by a majority of the members of this court in that case.
In Waskey v. Hammer, 170 Fed. 36, 95 C. C. A. 310, the United Stat,es Circuit Court of Appeals, in an opinion by Judge Ross, concurred in by Judges Gilbert and Morrow, after citing section 452, U. S. Rev. Stats. (U. S. Comp. Stats. 1901, p. 257), which provides that "the officers, clerks and employees in the general land office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public lands)’ and stating that the later rulings in the land department were to the effect that this statute is applicable to a deputy surveyor said: "In the case of Hand v. Cook, 29 Nev. 518" court="Nev." date_filed="1907-10-15" href="https://app.midpage.ai/document/hand-v-cook-6670498?utm_source=webapp" opinion_id="6670498">29 Nev. 518, a majority of the Supreme Court of Nevada held that the statute in question did not apply to a deputy mineral surveyor; but the reverse was held by the Supreme Court of Utah in the case of Lavagnino v. Uhlig, 26 Utah, 1" court="Utah" date_filed="1903-04-04" href="https://app.midpage.ai/document/lavagnino-v-uhlig-8654712?utm_source=webapp" opinion_id="8654712">26 Utah, 1, 71 Pac. 1046, 99 Am. St. Rep. 808. It will not do for a court to take a strained and narrow view of the language employed by Congress in its enactments, but rather give such a construction as
"In the case of Prosser v. Finn, 208 U.S. 67" court="SCOTUS" date_filed="1908-01-13" href="https://app.midpage.ai/document/prosser-v-finn-96757?utm_source=webapp" opinion_id="96757">208 U. S. 67, 28 Sup. Ct. 225, 52 L. Ed. 392" court="SCOTUS" date_filed="1908-01-13" href="https://app.midpage.ai/document/prosser-v-finn-96757?utm_source=webapp" opinion_id="96757">52 L. Ed. 392, the supreme court held that section 452 applied to a special agent of the land department who had made an entry under the timber culture act (act March 3, 1873, c. 277, 17 Stat. 605, as amended by act March 13, 1874, c. 55, 18 Stat. 21). The court said: 'The difficulty in the way of any relief being granted to the plaintiff arises from the statute prohibiting any officer, clerk, or employee in the general land office, directly or indirectly, from purchasing or becoming interested in the purchase of any of the public land. That a special agent of the general land office is an employee of that office is, we think, .too clear to admit of serious doubt. * * * It is not clear, from any document or decision to which our attention has been called, what is the scope of the duties of a special agent of the land office, but the existence of that office or position has long been recognized. Suffice it to say that they have official connection with the general land office, and are un'dér its supervision and control with respect to the administration of the public lands. (Wells v. Nickles, 104 U. S. 444, 26 L. Ed. 825; 1 Land Dec. Dep. Int. 608, 620; Instructions to Special Timber Agents, 2 Land Dec. Dep. Int. 814, 819-822, 827, 828, 832; Circular of Instructions, 12 Land Dec. Dep. Int. 499.) They are in every essential sense employees in the general land office. They are none the less so, even if it be true, as suggested by the learned counsel for the plaintiff, that they have nothing to do with the survey and sale of the public lands, or with the investigation of applica-cations for patents, or with hearings before registers (and receivers. Being employees in the general land office, it is not for the court, in defiance of the explicit words of the statute, to exempt them from its prohibition. Congress has said, without qualification, that employees in the general land office shall not, while in the service of that office, purchase or
In my opinion, these decisions of the highest federal courts construing this act of Congress are conclusive .until or unless the Supreme Court of the United States reverses the case of Waskey v. Hammer, which is reported to be pending before that tribunal at this time on a writ of certiorari, or unless it reverses its own decision in Prosser v. Finn, or makes an improbable distinction by holding that a United States deputy mineral surveyor is not an officer or employee of the general land office when a special agent is held to be such an employee.
It is shown by the evidence, and apparently conceded, that John Pardy posted the notices and did the work regularly required for making the location, and did the annual work every year on the Beehive. Assuming that the location of this claim was void because John Pardy was a deputy mineral surveyor at the time it ivas made, there are obstacles which would prevent a recovery by the intervener.
As to the Sam Tilden claim, on which he relied as having been located ten years before the Beehive, it appeared that notices of location had been posted and recorded; but the jury found that the location work required by the rules and regulations of the mining district and the annual work required by the laws of Congress, had not been performed. If the Sam Tilden had been properly located, it might be said that, if its locator remained in possession and continued to claim the ground, he could hold it without- doing the annual work as against any one who failed to make a valid new location. But there is evidence supporting the plea of the statutes of limitations for actions for mining claims and for real estate interposed by defendants and tending to show an abandonment of the ground by the locator of the Sam Tilden and an estoppel against him, in addition to any mere failure to do the annual work which might result in forfeiture upon the making of a new valid location. The testimony of the locator of the Sam Tilden that he had done the annual work was contradicted by witnesses who asserted that no work had been done on the ground for eight or ten years before the location of the Beehive. The jury found the special issues in
In the statement, which is to be commended for its conciseness while apparently fully and clearly presenting the issues raised, evidence indicating abandonment of the ground and acts which would estop the claimant under the Sam Tilden location from asserting a right to it is apparently uncontra-dicted. There was testimony that the locator of the Beehive had done the work for seven years with the knowledge of the locator of the Sam Tilden, who did not object or tell him that he owned the ground; that the locator of the Sam Tilden knew that the lessees were working on the Beehive and never made any objection, but, on the contrary, loaned them tools to work with and procured a tape-line and helped them to measure off the land, and never told them that he owned or claimed the ground or not to work or trespass there; and that he said he hoped they would get ore and that he would not bother about it.
In view of the weakness of the intervener’s claim under these circumstances, as apparently found by the jury, and considering the finding that the necessary location work had not been done on the Sam Tilden at the time the notices for its location were filed and recorded in the year 1889, that the annual work had not been done for so many years prior to the location of the Beehive in 1899, and that no objection had been made by the locator of the Sam Tilden to the work being done on the Beehive for seven years after its location, and that, instead of objection being made, assistance and encouragement w^ere given by him to the lessees working on the Beehive, and the evidence of acts relating to an estoppel and a bar under the statute of limitations, enough appears to sustain the judgment, regardless of any question of the insufficiency or invalidity of the location of the Beehive.