1,383, Brady v. Husby

• Decision Date: 23 August 1893
• Parties: BRADY et al. v. HUSBY. No. 1,383.
• Court: Nevada Supreme Court

33 P. 801

21 Nev. 453

BRADY et al. v. HUSBY. No. 1,383.

Supreme Court of Nevada

August 23, 1893

Syllabus by Bigelow, J.

1. A party that relies upon an equitable defense to an action of ejectment must set up in his answer the facts constituting the same, or it will not be considered.

2. It is the record of a mining claim, and not the notice of location, that must contain such reference to a natural object or permanent monument as will identify the claim. and only then when the local laws require a record to be made.

3. Where the record of a mining claim contains such reference to a natural object or permanent monument as might, under any circumstances, identify the claim, the record is admissible in evidence, and it becomes a question of fact as to whether such reference is sufficient.

4. In the absence of all evidence upon the point, it will be presumed that the reference is sufficient for identification.

Appeal from district court, Eureka county; A. L. Fitzgerald, Judge.

Action in ejectment by Patrick Brady and James Brady against John Husby. Defendant had judgment, and plaintiffs appeal Reversed.

The other facts fully appear in the following statement by BIGELOW, J.:

Action in ejectment to recover possession of the Eagle Pass mine situated in Cortez mining district, Eureka county, Nev. The plaintiff located the claim August 5, 1885, by plainly marking the boundaries, and placing thereon the following notice of location: "Notice. I, the undersigned, have this day located this vein, ledge, or claim on the Cortez mountain. I claim 750 feet northeasterly and 750 feet in a southwesterly direction, and also 400 feet on the southeast side, and 200 feet on the northwest side, of each side of the claim; this mine to be known as the 'Eagle Pass Mine.' Cortez mining district, August 10, 1885. Pat Brady, Locator." This notice was recorded in the records of Eureka county on August 21st, and in the district records on August 24th, of that year, which was the only record made of the claim. There was evidence tending to show that, by agreement of the parties, the defendant was to be half owner in the location, and that it was located in the plaintiff's name alone, because the defendant was then an alien, and unable to locate mining claims. On March 2, 1890 the defendant, having become a citizen, located the same ground under the name of the "Ontaria Mine," and thereafter ejected the plaintiff from the claim.

F. M Huffaker, for appellants.

R. M. Beatty, for respondent.

BIGELOW, J., (after stating the facts.)

In view of the state of the pleadings in this case, it is unnecessary to pass upon the question of cotenancy, argued by counsel. If the plaintiff's location of the Eagle Pass mine was valid, he became the owner of the legal title to the whole claim. If the defendant is the equitable owner of one-half of that location, and for that reason entitled to retain possession thereof, this would constitute an equitable defense to the action to that extent, but he should have set up in his answer the facts showing that such is the case. Not having done so, the action must be tried and determined upon the issues made by the pleadings, which simply involve the validity of the conflicting locations. Pom. Rem. Rights, §§ 95, 679, 706; Arguello v. Bours, 67 Cal. 447, 8 P. 49; Bruck v. Tucker, 42 Cal. 346.

As this court has frequently decided, it is the record of the mining claim, and not the notice of location, that must contain such reference to some natural object or permanent monument as will identify the claim, and only then when the local laws require a record to be made. Poujade v. Ryan, 21 Nev. --, 33 P. 659; Southern Cross G. & S. Min. Co. v. Europe Min. Co., 15 Nev. 383. It was therefore error to strike out the plaintiff's notice of location because it did not contain such reference. At the time this ruling was made, the court had no judicial knowledge of the existence of any local laws in the mining district providing either for the form of a notice of location, or for any record of the claim. The plaintiff had testified to posting the notice upon the claim as a part of the act of location. As such it was admissible in evidence, as we know of no general law requiring such notice to be in any particular form. Subsequently, however, the defendant offered the recorded notice in evidence, as stated, "for the sole purpose of showing that the said notice does not comply with any law or custom," but thereafter the court seems to have treated it as being in evidence for all purposes, as the sufficiency of the notice and record was passed upon in the findings. Under these circumstances, it seems doubtful, at least, whether the original error of striking out the notice was not cured, and we shall consider the case as though it was. With the exception of the notice of location, or the record of the claim, or perhaps both, there was no contention that the plaintiff's location of the Eagle Pass mine was not strictly in accordance with the law, nor that the annual assessment work had not been duly performed. So to dispose of the appeal, we need only consider the sufficiency of that notice and record.

The defendant introduced in evidence a few sections of local mining laws of the district, of which one required the notice of location to state certain things; but the notice here seems to have complied with those requirements, and, as the defendant does not contend that it did not, we pass it by.

The court found that the local mining laws required the notice of location to be recorded, or at least filed for record, in the records of the district within 30 days after the discovery of a claim, in order to be respected. This finding the appellant claims to be contrary to the evidence, but, without deciding the point, we shall assume the finding to be correct, for the reason that the evidence is not sufficiently before us to enable us to determine the question satisfactorily. The finding is in accordance with the first rule adopted by the...