11 Nev. 200 | Nev. | 1876
By the Court,
This is an action of ejectment instituted in pursuance of an act of Congress, to determine the right to certain mining ground for which the Lucerne Mining Company had applied for a patent, and appellant had filed his protest.
The appellant claims title to the mining ground in controversy, under the mining location and claim known as “Waller’s Defeat.” The respondents claim title under the mining locations and claims known as the “Boston” and the “ Lucerne;” the former having been located prior, and the latter subsequent, to the location of the “Waller’s Defeat.” The jury found a verdict in favor of respondents. Appellant moved for a new trial, and from the order overruling that motion this appeal is taken.
Several points are presented and relied upon by appellant, which will be noticed in their regular order.
1. It is claimed that the court erred in refusing appellant’s challenge to the juror Mathewson, upon the ground that said juror had formed and expressed an unqualified opinion as to the course and direction of the Waller’s Defeat lode. Appellant claimed at the time of the challenge, and still insists, that this was one of the main questions involved in the case, and that under the provisions of the sixth subdivision of section 164 of the Civil Practice Act (1 Comp. L. 1225), the court should have allowed the chai-' lenge. Mathewson, upon his voire dire, stated that he was well acquainted with all the mining claims in the locality of the mining ground in dispute; that he had a decided opinion as to the course of all the claims in that vicinity; that he knew nothing at all about the merits of the case; that he had no opinion upon the question as to whether or not the
Upon the trial of this cause, there was some controversy as to the course of the various claims. There was testimony offered by respondent tending to prove that the Waller’s Defeat ran with a certain canon; also, testimony offered by appellant tending to prove that it ran over a hill almost at right angles with the cañón. Without deciding the question as to the meaning of the statute, 'we are of the opinion that the action of the court in refusing the challenge must be sustained upon two grounds: First. It was impossible for the court to determine from the pleadings or facts before it, at the time the challenge was interposed, whether - the course of the lode, or lodes, was, or ivas not, one of the main questions involved in the case. If appellant desired to present the point upon its merits, he should, in the absence of an admission upon the part of the respondent, at least, have offered to prove by some competent evidence that this was one of the main questions involved in the case. Second. From the answers given by the juror, it seems to us apparent that he was of the opinion that the vein, or veins, of ore upon which the respective claims were located ran in the same general direction; otherwise he would certainly have had an opinion as to whether or not there was more than one lode in that locality; and also an opinion as to whether or not the Lucerne and Waller’s Defeat were upon the same lode. In reply to the questions asked upon this point, he answered in the negative. If his answers were truthful, is it not clear that he could not have formed the opinion, as argued by appellant, that the Waller’s Defeat ran with the cañón, and that the Lucerne ran over the hill nearly at right angles with the cañón ? For if that was a fact, the claims could not be upon the same lode. The juror having an opinion as to the general direction of the two claims, if he believed they run at right angles, as a matter of course, must have entertained the opinion that they were not upon the same lode. We think it must have
2. At the close of the testimony offered on behalf of respondents, appellant moved the court “to strike out as immaterial and irrelevant all the testimony * * * relating to the location of the Boston claim and the work done under that location; also, the notice of location of the Boston Company.” The court refused to grant said motion. It is argued that the title claimed by respondents is to a lode; that the Boston notice did not claim a lode, but Avas AA'hat is known as a hill claim; that the only controversy in this action is as to the title to a lode, and that no title to the lode can be acquired from a hill location. ' The notice of the Boston’ location reads as follows:
“Notice is hereby given that we, the undersigned, have taken up and claim for mining purposes twelve hundred feet of ground on the face of this hill on the south side of Gold Canon, running north' 1200 feet from stake, with all its dips, angles and spurs, from thence to the centre of the hill. 7 June, 1859.” (Names of locators.)
A narroAv or illiberal vieAV in the construction of Avritten notices of mining locations would often lead to the deprivation of the rights of the locators. In many of the locations made by miners, especially in new mining districts, the notices of location are frequently found to be vague and indefinite. They are often prepared upon the ground, and usually written by men unaccustomed to the forms used by lawyers. A common sense view must be taken of such notices. What was the intention of the parties who made the location? If, in the present case, we seek for that intention from the language employed in the notice, is it not found in the use of the words “-with all its dips, angles and
3. The deed from Surrhyne to the Lucerne Mining Company, under which the respondents claim title, does not mention the Boston notice or claim. It conveys an undivided interest “of all that gold and silver mining ledge or ground * * * more particularly described as folloAvs, to wit: That set of claims known as the Lucerne Company’s claims, of'1800 feet in extent, located on the Lucerne quartz ledge. Said company’s claims running northerly from a certain shaft sunk upon the lead aforesaid one thousand feet, and running south from said shaft eight hundred feet, * * * being the undivided interest of the party of the first part, in all that original claim located by the Lucerne Company, and duly recorded in the Gold Hill records.”
Did this deed convey any title to the ground claimed by the Boston notice of location ? It appears from the testimony that the Boston notice was written and posted upon the ground in July, 1859; that thereafter, in March, 1860, the same parties who had located the Boston, using their own names and the names of ten other persons, located the Lucerne, claiming fourteen claims on the Lucerne ledge. The notices of the Boston and Lucerne locations were both written by Surrhyne, the grantor of the deed to the Lucerne Mining Company. The Lucerne notice was posted on a stake at the north end of the Boston claim, and extended “in a southerly direction twenty-eight hundred feet.” The testimony offered upon the part of the respond
4. Testimony was offered by appellant, in rebuttal of re-spondent’s case, tending to prove that the locators of the Boston claim had treated it as separate and distinct from the Lucerne claim, and several deeds from the various locators in the Boston were introduced in evidence, in some of which the Boston ground was described as being bounded on the north by the Lucerne. The object of this testi
This instruction was calculated to mislead the jury. The conclusions we have reached upon other points fully justify the action of the court in refusing to give this instruction. But little need be added to what we have already said. As an abstract proposition of law, it may, for the purpose of the argument, be admitted, that the instruction is correct. It is the intention of the parties that imparts life to every contract, and controls the court in the construction of every written instrument. But how is that intention to be ascertained? When the language of a deed is doubtful, the first thing we inquire is: What was the intention of the parties ? But courts do not always seek for the intention of the parties independent of the language used in the deed. On the contrary, we think it is a well-settled legal principle, that where the language of a deed admits of but one construction, and the location of the lode or premises intended to be conveyed is clearly ascertained by a sufficient description of the grounds, in the deed, by courses, distances or monuments, it cannot be controlled by any different exposition derived from the acts of the parties in locating the premises, or from the failure of the grantor to designate the various names by which the ground conveyed was at different times known. It is only when the language is equivocal, imperfect or ambiguous, and the location of the ground, or identity of the lode, or lodes, made doubtful, that the construction put upon the deed by the parties who located the ground may be resorted to to aid iii ascertaining the intention of the parties. The very object of a description in a deed is to define what the parties intended, the grantor to convey, and the grantee to receive, by-the
5. Finally, it is contended that the court erred in refusing to give this instruction: “The jury are instructed that if they believe from the evidence that the locators of the Boston claim re-located the Lucerne claim upon the same ledge as that which they claimed under the notice of location of the Boston company, commencing at the north stake of the Boston claim and claiming 2800 feet, including the ground claimed by the Boston company’s notice, such relocation is an abandonment of the Boston claim, and they must exclude from theii\consideration the Boston claim and all work done under it.”
This instruction presents the simple question whether, as matter of law, the fact of making a second location upon the same lode with the names of other parties included iq the notice of location, is an abandonment of the first location. The answer to this is plain. The question of abandonment is one of intention. Whether it was the intention of the original locators of the Boston claim to abandon their interest in the ground derived from the Boston notice of loca
We are not called upon in this case to determine wliat, if any, rights were acquired by tbe second notice of location; or the rights, if any, of the additional locators in the second notice, and upon these questions we express no opinion.
The judgment of the district court is affirmed.