By the Court,
Norcross, J.,
dissenting in part:
This is a proceeding brought by the plaintiff under the provisions of “An act to regulate the exercise of the right of eminent domain” (Stats. 1907, p. 279) to condemn a right of way for its railroad across a certain tract of land in the town of Columbia, Esmeralda County, occupied and used by the defendants as a feed corral in *235connection with what was known as the branch Pioneer Livery Stable. As provided by the act, commissioners were appointed to assess the damages, and the commission rendered a report awarding the defendant C. E. Deanor the sum of $1,000, and Summerfield & Johnson $500. C. E. Deanor, who was the lessee of Summerfield & Johnson of the stable and corral, accepted the award in his favor which was paid by plaintiff. Summerfield & Johnson objected to the award made to them, and there was a further submission of the question of their damages and a subsequent award of $1,000 to them, provided that they establish their title to said property.
The plaintiff paid into court the sum of $1,000 subject to the provisions of the award. Subsequent to the award last mentioned, and on January 31 and March 4, 1910, respectively, the Band Goldfield Mining Company and E. S. Johnson severally intervened, and alleged ownership, respectively, of the Yellow Rose quartz mining claim and the Sleepy Hollow mining claim, upon which claims the right of way sought to be condemned in the action was located, and prayed that the entire award be decreed to them in proportion to the area of their respective claims affected. The defendants Summerfield & Johnson objected to the jurisdiction of the court to entertain the petitions in intervention, which objection was overruled. They also filed answers to the petitions denying ownership in petitioners, alleging ownership in themselves by purchase from their grantors and predecessors in interest, and also setting up a right of possession under the statute of limitations. Prior to the trial of the issues between defendants and interveners, and on the 23d day of April, 1910, a stipulation was entered in the minutes of the court between the plaintiff, defendants, and interveners “that the report of the commissioners be confirmed, and that the different claimants to the fund of $1,000 may continue the litigation as to ownership of said fund or any part of it without holding the Las Vegas and Tonopah Railroad *236Company responsible for any more or further sum than the said $1,000 or further costs.” The court found the interveners to be the owners of the property for which the award in damages was made, and rendered several judgments in favor of the said E. S. Johnson in the sum of $657, and the said Band Goldfield Mining Company in the sum of $343.
From the j udgments and from orders denying motions for a new trial defendants have appealed.
[1] The contention that the trial court was without jurisdiction to permit the interventions is, we think, without merit. Section 8 of said act of 1907, supra, provides: “All persons in occupation of, or having or claiming an interest in, any of the property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint.” This section clearly authorizes any person interested either in the property or the award to intervene and assert his rights. Whether such an intervention ought to be permitted at a time subsequent to the .award by the commissioners by a party not named in the complaint, and whose rights would not, therefore, be .affected by the award and judgment, we need not now consider. Bermission at such a time might be erroneous, but, if error at all, it is an error within, and not in excess ■of, jurisdiction. However that may be, the stipulation ■entered in the minutes of the court and quoted supra we think amounts to a waiver of any objection that may have been otherwise well taken.
Upon the merits, we think the court erred in determining that the defendants were not entitled to any portion whatever of the award, and in rendering judgment in favor of interveners for the total amount thereof. The interveners neither alleged or proved any damages to themselves other than might be held to follow from a bare allegation and proof of ownership of the two mining claims in question. Doubtless the main element *237of damage considered by the commissioners was the in j ury to the corral and stable owned by the defendants, the lessee of whom was deemed to have been damaged to the extent of $1,000 for the injury to his business. The said lessee was paying defendants $85 per month rental.
The defendants and the intervener, E. S. Johnson, assert title from the same original source as shown by the following: June 3, 1903, W. H. Harris located the Wild Cat quartz lode claim, the certificate of location of which was recorded in Rook J, p. 171, Records of Esmeralda County. October 19, 1903, W. H. Harris located the Yellow Rose claim. April 20, 1904, W. H. Harris entered into the following agreement with W. A. Marsh and E. C. Courtney: “That the party of the first part (W. H. Harris) in consideration of the sum of $100, United States gold coin, paid to him, hereby agree that the party of the second part, may occupy and use the surface of a certain tract of land situated on the north side of Columbia .townsite and known as the corral situated on the Yellow Rose Placer claim. Said tract of land is (184) feet fronting on Main Street, in the town of Columbia, and (200) feet deep toward Columbia Mountain. And further agree to give the said second party, a deed to such ground, so soon as he obtains patent to the mining claim on which said tract is situated.” July 11, 1904, W. A. Marsh and E. C. Courtney executed a quitclaim deed to W. J. Sinclair of property described as follows: “One corral situated in the town of Columbia on the Yellow Rose placer claim, said tract of ground is 184 feet fronting on Main Street, and 200 feet deep toward Columbia Mountain.” December 31, 1904, W. J. Sinclair and wife executed a quitclaim deed to defendants Summerfield and Johnson of property described as follows: “Fronting 184 feet on Main Street, 200 feet deep from the north side of said street, commonly known and designated as the branch Pioneer Livery Stable.” June 24, 1904, W. H. Harris deeded to John E. Lutz certain mining premises described as “ ‘Wild Cat’ placer mining claim, the location certificate of which is duly of *238record in the office of the county recorder at Book J, p. 171, especially reserving and excepting from this conveyance the surface rights only of a strip of land 184 feet in length, more or less, and 175 feet in width, more or less, along the southerly end of the said ‘Wild- Cat’ placer, which has heretofore been leased by the grantor herein to William A. Marsh and E. C. Courtney for a corral, and which is now enclosed by a wire fence. Also all those certain lode mining claims situated in said Goldfield Mining District, known, located and recorded as the ‘Granite’ and ‘Yellow Rose’ lode mining claims.” February 15, 1905, deed from John E. Lutz to E. S. Johnson of Yellow Rose lode mining claim, also Granite, White Rose, and Pink Rose lode mining claims, containing the following reservation: “Especially reserving herefrom all that portion of the surface rights of the south 800 feet of the said Yellow Rose mining claim, leased or sold by the party of the first part prior to the date hereof; and the party of the first part, for the, consideration hereinabove mentioned, does hereby sell, assign and transfer said leases and contracts, together with all covenants, rights and interest of party of first part therein, unto the party of the second part, his heirs or assigns.” February 27, 1908, patent of the United States to E. S. Johnson for Yellow Rose lode mining claim.
[2] The patent obtained by intervener E. S. Johnson relates back to the original location of the Yellow Rose claim made by W. H. Harris on October 19, 1903. (Lindley on Mines, 2d ed. sec. 783.)
[3] The defendants, their grantors.and predecessors in interest, holding possession of a portion of the surface of the Yellow Rose claim, under mesne conveyances from the original locator, W. H. Harris, are entitled to possession of the portion of the claim in controversy, for “equity will control the patent title in favor of the party holding the equitable title.” (Lindley on Mines, 2d ed. sec. 719.)
*239[4] The fact that the Yellow Rose claim is described as a placer instead of a lode claim in the agreement between Harris, Marsh, and Courtney of date April 20, 1904, we think is immaterial, for the property is otherwise so described as to leave no doubt as to what was intended. In the conveyance from Harris to Lutz of June 24, 1904, the Wild Cat claim is described also as a placer, although the certificate of location referred to shows it to have been located as a lode claim. We think the intervener, E. S. Johnson, is entitled to no portion of the award.
[5, 6] The right of the Band Goldfield Mining Company to a portion of the award rests upon the fact that at the time of intervention it was the owner of the Sleepy Hollow lode mining claim, an unpatented but valid and subsisting claim located on December 1, 1903, subject to whatever legal rights defendants may be entitled to by reason of the claim of adverse possession. Contrary to my own views of the question, my associates are of the opinion that, as to the Sleepy Hollow mining claim, the defendants have not established an adverse possession, and are not entitled to the amount of the award which the judgment gave to the Band 'Goldfield Mining Company.
The judgment in favor of the Band Goldfield Mining Company is affirmed.
The judgment in favor of E, S. Johnson is reversed, and the court below is directed to enter judgment in favor of the appellants in the sum of $657.
It is so ordered.