Murray v. Osborne

33 Nev. 267 | Nev. | 1910

By the Court,

Talbot, J.

(after referring as above to the recited part of the opinion of the district judge):

On behalf of appellant, it is uged that the evidence does not support the findings or judgment, which was rendered in favor of respondents and plaintiffs; that the court erred in refusing to make certain specific fundings of fact submitted and requested by appellant in lieu of the findings of the court which were mere conclusions of law; that the Juanita notice was defective because it did not refer to that claim as a relocation of the ground; and that, under the plaintiffs’ own testimony, they cannot maintain the location of their mining claims, and are not entitled to judgment because they failed to do the amount of location work required by the statute in new ground in addition to the removal by them of dirt which had caved in the old cut and tunnel where the work according to plaintiffs’ witnesses was performed.

Particular objection on the ground that it is a conclusion of law is made to finding No. 1, "that on the 5th day of May, 1908, plaintiffs by or through their grantors and predecessors in interest were, and ever since have been, the owners in possession and entitled to possession of the Juanita and Juanita No. 1 mining claims.” It is clear from the allegations, proofs, other findings, and judge’s opinion that the use of the figure 8 was a clerical mistake, and that the year 1906 was intended. If this finding stood alone, appellants, upon request and petition within five days after the rendering of the judgment, as was done, would have been entitled to a finding detailing the facts regarding the posting of notices, the marking of boundaries, and the doing of the location work upon the claims. After referring to these locations as having been made by the locators on May 5,1906, it is stated in finding No. 10: "That said locations Juanita and Juanita No. 1 were and each of them was made and perfected as by law required. That notices of said claims, to wit, Juanita and Juanita' No. 1, were posted on the ground located. That the discovery work required by law was done upon said locations, to wit, Juanita and Juanita No. 1, within the time required by law by the locators of said claims. That each of said claims, to wit, Juanita and Juanita No. 1, was monumented, and the boundaries thereof defined by monuments within the time required by law therefor.”

Appellants say that it is important to them to have a finding showing the amount of new work, the number of feet, and the place where it was done, for they are proceeding on the theory that ten linear feet of new work was not performed in the tunnel by the plaintiffs, and that new work to this extent was necessary to perfect the plaintiffs’ location. Taking the statement in the findings quoted and the one in the opinion of the district judge that the cut at the entrance to the tunnel for a distance of about fifteen feet and the tunnel for a length of about thirty feet had been cleared of dirt which had caved until it was about as high as the tunnel in places, and that the tunnel had been extended five or six feet, it is clear that the district judge concluded that the tunnel had been extended only five or six linear feet, and that this extension, in addition to the removal of the earth which had caved in the cut and tunnel for a distance of about forty-five feet, was sufficient location work on the Juanita. Under our practice, when findings are not made or requested, any findings necessary to support the .judgment are presumed. In view of the position taken by the appellants, it is important here to have a finding, or have it appear, that the amount of work required by the statute had not been done in new ground. But as it is apparent to this court from the other findings and the opinion of thé district judge that he acted on the theory that the work had not been so done, this court is in a position to determine whether as a matter of law the failure to do all the work on new ground would forfeit the claim as fully as if such a finding had been made, and consequently no injury results to the appellants. As between the testimony of the witnesses for the plaintiff that the cut and tunnel had been cleared'out and the tunnel extended five or six feet, and the testimony of numerous witnesses for the defense that they had been on the ground before and after the time that this' work was claimed to have been done, and that it had not been performed, and that the caved earth and growing sagebrush remained in the cut and tunnel, it was the exclusive province of the district court, acting without a jury, to determine. Considering the sharp conflict in the testimony, statements in the opinion, and the time the case was held under advisement, it would seem that the court did not arrive at a conclusion regarding the facts without some difficulty and doubt.

As often held, we cannot disturb the findings of the district court when they are sustained by any substantial evidence. (State v. Buralli, 27 Nev. 56.) As it appears from the opinion of the district judge that the tunnel was extended only five or six feet by the plaintiffs, and there is no evidence to indicate that it was extended further, was such extension in addition to the cleaning out of the cut for fifteen feet and of the tunnel for thirty feet, as determined by the trial judge under the conflicting testimony, sufficient location work to meet the requirements of the statute in force at the time the Juanitas were located? Section 209, Comp. Laws, as amended in 1901 (p. 97, c. 93), directs: "Before the expiration of ninety days from the posting of such notice upon the claim the locator must sink a discovery shaft upon the claim located to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary to show by such work a lode deposit of mineral in place. A cut or crosscut, or tunnel, which cuts the lode at a depth of ten feet, or an open cut along the ledge or lode equivalent in size to a shaft four feet by six feet by ten feet deep, is equivalent to a discovery shaft. ”

Section 214 provides: "The relocation of abandoned lode claims shall be by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim; or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, in which case the record must give the depth and dimensions of the original discovery shaft at the date of such relocation, and erect new or adopt the old boundaries, renewing the posts or monuments if removed or destroyed. In either case a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the record may state that the whole or any part of the new location is located as abandoned property. If it is not known to the relocator that his location is on an abandoned claim, then the provisions of this section do not apply.”

It is argued for appellants that, if the extension of the tunnel for less than ten linear feet was sufficient to make a location good, the amount of earth required to be removed could be reduced to one shovelful. • But, if it be conceded that the extension of the tunnel for a distance of six feet would not be sufficient, it remains for us to determine whether plaintiffs were entitled to credit for removing the caved dirt from the cut and tunnel which, according to the evidence, may have been made thirty or forty years previously, and possibly before the laws now controlling the location of mining claims were in force. If, after such a long period, the earth which had been caved and packed may not be considered in the nature Of new ground, still if the locators removed several times the quantity of earth or rock defined by the statute and more than the equivalent of the labor necessary to do work in new ground, and this work was done in connection with the extension of the tunnel on the ledge and apparently all to the best advantage for the development of the mine and in good faith, we believe that was sufficient.

The extension of the tunnel for five or six feet amounted to one-half or more of the 240 cubic feet of earth required by the statute to be excavated, and if, as testified by witnesses for the plaintiff, about i,000 cubic feet was taken out of the tunnel, this necessarily resulted in the removal by the plaintiffs of several times the quantity of earth required to be excavated in new ground and apparently more than the equivalent of the work which would have been required if it had been in new ground, and this work, including the extension of the tunnel, was as much or more for the benefit of the claim, and was a compliance with both the letter and the spirit of the statute.

There is no evidence indicating whether any location had been made, noticed, or staked on the ground at the time the tunnel was first constructed, and it does not appear that the locators of the Juanitas knew that the ground had been covered by an abandoned claim, or that they were aware of monuments or boundaries which would have made it possible for them to describe a part or all of the ground as being abandoned. Under these circumstances, and under the provision in section 214, Comp. Laws, that in any case where the whole or part of an abandoned claim is taken the record may state that all or part of the new location is on abandoned property, and, if it is not known to the locators that the location is on an abandoned claim, the provisions of that section do not apply, the certificate was not defective for failing to state that the location was made on abandoned ground It has been held that such a statement acts as an estoppel, and prevents the locator making it from denying that the abandoned location had been properly made. Ordinarily forfeitures are not favored, and a very strict or severe construction ought not to be placed on the statute when the prior locators have proceeded in good faith and apparently have done all that is required by a fair construction of the laws relating to mining locations.

We acknowledge that the carefully prepared and indexed brief of appellants, giving correctly the purport of the conflicting testimony of the various witnesses, with reference to the numbers in the 1100-page transcript, has saved time and been of material assistance to the court.

The judgment is affirmed.