Indiana Nevada Mining Co. v. Gold Hills Mining & Milling Co., 35 Nev. 158

Indiana Nevada Mining Co. v. Gold Hills Mining & Milling Co.

35 Nev. 158 | Nev. | 1912

By the Court,

Norcross, J.:

This is a suit brought under the provisions of section 2326, U. S. Revised Statutes (U. S. Comp. St. 1901, p. 1430; Rev. Laws, 2384), upon an adverse claim and protest filed in the United States Land Office at Carson City,

Nevada, against the application of the respondent for a patent to the three mining claims named "Indiana No. 1, ” '.'Indiana No. 2,” and "Indiana No. 3,” embraced in survey No. 3,654. Respondent, as plaintiff in the court below, alleged ownership of the " Conservative claim, ” embraced in survey. No. 3,201, and that the same was located prior *163to any of the said Indiana claims, and that respondent is entitled to the area.in conflict between the said "Indiana” claims and the said "Conservative” claim. An answer was filed putting in issue the material allegations of the complaint. A diagram accompanying appellant’s brief is inserted (p. 162) showing substantially the area in controversy, only that portion of which shown in black is now questioned on this appeal by appellant.

The court below found the facts of the case as follows:

"First — That the Conservative lode mining claim was duly located under the laws of the State of Nevada and the United States on the'23d day of January, A. D. 1905, and since that time has been maintained as a valid location under said laws.

"Second — That the Indiana No. 1 lode mining claim was duly located under the laws of the State of Nevada and the United States on or about the 17th day of February, A. D. 1905, and has been maintained as a mining location from that time to the present.

"Third — That, as originally located, the Indiana No. 1 lode mining claim lay about 100 feet west of its present position as shown by its patent survey.

"Fourth — That, before the boundaries of the Indiana No. 1 were defined by stone monuments, the south boundary of the Conservative lode mining claim had been defined by two stone monuments, one at its southwest corner about 79 feet north of its present southwest patent post, and the other at a point south 17° 4T west 151 feet slope measurement from post No. 3, survey 3,049, K. K. No. 1 lode.

"Fifth — That, before the boundaries of the Indiana No. 1 were defined as shown by its patent survey, the boundaries of the Conservative had been defined by posts set very nearly in the positions the posts of its patent survey now occupy.

"Sixth — That the Indiana No. 2 claim in its present status is junior to the Conservative claim as defined by its survey for amended certificate'. ”

It is the contention of appellant that the portion of *164ground in question should have been determined to be a part of the Indiana No. 1, and that if not found to be within the exterior boundaries of that claim, as originally located, it was then a portion of the No. 2 location.

[1] The only finding questioned by the appellant is the third quoted, supra. This finding was based on conflicting evidence, and under the well-established rule is conclusive on this court. It would seem that the court below held as a matter of law, and it is so contended by counsel for respondent in this appeal, that the location monument as originally placed and maintained, until moved a hundred feet, more or less, to the east at the time of the patent survey, fixed the center of the lode or vein for the purposes of the location; that the lode line must be deemed to pass through the point covered by that monument, and that the side lines of the claim may not be placed more than 300 feet therefrom. This very interesting question of law we need not consider, for the court found as a fact that the claim, as originally marked on the ground, had its easterly side line substantially 300 feet easterly of a line passing through the discovery monument as established at the date of the location.

[2] As the patent survey of the Conservative was made in January, 1907, and the south end line of the claim was moved to the south of the line originally monumented to correspond with the call in the location notice and certificate prior to the patent survey of the Indiana No. 1, and the moving of the easterly side line of that claim to the east, it follows that the owners of the Conservative claim have a better right than the owners of the Indiana No. 1 to the ground in conflict occasioned by such changes in the boundaries of the respective claims.

[3] Counsel for appellant contend that the court below based the rights of the respondent to the area in question upon an excluded amended certificate of location of the Conservative claim filed with the county recorder, but not with the district recorder after the patent survey. Failure to properly file a certificate or amended certificate of location only shifts the burden of proof, and in this case there *165was proof, independent of the excluded certificate, upon which the court undoubtedly relied, showing the changes made in the southerly end line of the Conservative. (Ford v. Campbell, 29 Nev. 578, 92 Pac. 206.)

[4] Appellant’s contentions based on the Indiana No. 2 location are also, we think, without merit. When the Indiana group of claims was located on February 17, 1905, the No. 2 claim was located immediately to the north of No. 3, and covering in the main the Bimetallic No. 3 claim, shown on the diagram. During the year 1906 the owners of the Bimetallic No. 3 received a patent for the latter claim, which claim as patented contained within its surface boundaries the location monument and shaft of the Indiana No. 2. The effect of this was to extinguish the Indiana No. 2 as a valid location.

[5] At the time of the patent survey of the Indiana claims, November 28, 1908, a small fraction of vacant ground was found to the north of the Indiana No. 3 and to the west of the Bimetallic. This was located by the owners of the Indiana claims. It was called a relocation of the Indiana No. 2, and an amended certificate of the certificate of the original location filed. We think the Indiana No.' 2 claim must be regarded as a new and independent location, and that no rights can attach thereto by virtue of the extinguished location of the claim of the same name. As it is subsequent in time to the patent survey of the Conservative claim, the owners of the latter claim have a- superior right to the ground in question as against any rights based on the Indiana No. 2 location.

[6,7] This disposes of the question raised by the appellant on this appeal. Counsel for the respondent have assigned " cross-errors, ” and contend that we should sustain their contention that the locations of both the "Indiana No. 1” and the "Indiana No. 2" locations are void. If we concede, without so deciding, that respondent is entitled to raise these questions, nevertheless, under the view we have taken of the No. 2 location, its validity is immaterial to respondent. The alleged invalidity of the No. 1 location is based upon'the contention that *166the removal of the location monument of the claim at the time of the patent survey was'in effect a forfeiture or abandonment of the claim, as it left the claim without a valid location monument. This contention is clearly without merit. Abandonment is largely, if not entirely, a question of intent, and here the intent was manifestly to the contrary. Forfeitures are not favored in the law, and are only held to exist when facts clearly justify. No facts warranting the holding of a forfeiture of the "IndianaNo. 1” claim appear in this case.

The judgment and order appealed from are affirmed.