35 Nev. 229 | Nev. | 1912
By the Court,
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
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
From the j udgments and from orders denying motions for a new trial defendants have appealed.
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
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
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.