Ford v. Campbell

• Decision Date: 01 November 1907
• Docket Number: 1,727.
• Parties: FORD et al. v. CAMPBELL et al.
• Court: Nevada Supreme Court

92 P. 206

29 Nev. 578

FORD et al. v. CAMPBELL et al.

No. 1,727.

Supreme Court of Nevada

November 1, 1907

Appeal from District Court, Nye County.

Action by James G. Ford and others against William Campbell and another. From a judgment in favor of plaintiffs, and from an order denying defendants' motion for a new trial, they appeal. Affirmed.

Campbell Matson & Brown and Augustus Tilden, for appellants.

M. S Bonnerfield, John T. Wheeler, and W. A. Massey, for appellees.

NORCROSS J.

This is an appeal from the judgment and from an order denying defendants' motion for a new trial.

The action was brought for the recovery of the possession of a certain mining claim in Bullfrog mining district, Nye county called the "Ella May No. 1," and for damages for the withholding thereof. The complaint alleges that the plaintiffs were on the 13th day of April, 1905, the owners of, in the possession of, and entitled to the possession, and are now such owners and entitled to the possession, of the said claim, particularly describing it; that, the plaintiffs being so possessed, the defendants on the 13th day of April 1905, without right, entered into the possession of the demanded premises and ousted the plaintiffs, and now unlawfully withhold the possession thereof from the plaintiffs, to their damage in the sum of $25,000. The answer denied the allegations of the complaint and alleged: "That defendants on the 13th day of April, 1905, were, ever since have been, and now are the owners, subject to the paramount title of the United States, in possession and entitled to the possession, of the real estate or mining ground mentioned and described in the complaint, by location thereof on the 13th day of April, 1905, as a lode mining claim under and by virtue of, and in full compliance with and in conformity to the laws of the United States and of the state of Nevada, relative to mineral locations made on, and the acquisition of, the public domain of the United States; that whatever right, if any was ever acquired by plaintiffs in and to the real estate or mining ground mentioned and described in the complaint, was by the location thereof as a lode mining claim on the 10th day of September, 1904, naming and designating the same the 'Ella May Lode Mining Claim,' but no discovery shaft, cut, cross-cut, tunnel, or open cut was in manner and form as provided by law, or at all, sunk, run, or opened upon said mining claim and location, and said claim and location were abandoned by plaintiffs, and said real estate or mining ground by them on the 13th day of December, 1904, relocated as the Ella May No. 1 lode mining claim, but the boundaries thereof were not in any manner, or at all, marked, defined, or designated, and the location of said ground so standing when the defendants located the same as aforesaid." With the issues thus made by the pleadings, the parties went to trial.

The proofs showed that on the 10th day of September, 1904, the plaintiffs posted a location notice upon the ground in question designating the claim as the "Ella May." Subsequently, and within the time allowed by law, they monumented and marked the boundaries of the claim, and performed their location work as they then supposed within the limits of their said claim, after which, on or about the 7th day of December, 1904, they filed a certificate of their location with the district mining recorder and with the county recorder. On or about the 13th day of December, 1904, the plaintiffs had their claim surveyed, and then discovered that a portion thereof overlapped a prior existing claim, and that this overlapping area included their location cut. They then moved their two south end monuments so as to exclude the conflicting area, and posted a notice on their location cut to the effect that they abandoned such location work. Upon the advice of the surveyor, the plaintiffs, without removing the first notice of location, posted an additional location notice in the location monument reading as follows: "Notice of Relocation. Notice is hereby given that the undersigned hereby locate and claim the following described piece of mineral bearing ground as a lode claim. From this discovery monument 410 feet in S. 3~10' West direction and 750 feet in a N. 23~ E. and 300 feet on each side of the middle of the vein. The South end line is identical with the North end line of the Pearlie lode claim and the Little Jim lode claim laps this claim on the west side. The general course of the vein or ledge is S. 3~10' W. and N. 23~ E., and the size of the claim is 1160 feet long by 600 feet wide, this claim shall be known as the Ella May No. 1. Situate in Bullfrog Mining District, Nye Co. Nevada. Relocated this 13th day of December 1904. This claim is marked at each corner and on each side line center by a mound of rock and a rock chiseled with description of corner and is relocated to better describe the locus of said claim. Locators: J. G. Ford. J. H. Ford. J. T. Wheeler. C. R. Ford. Location work consists of cut about 250 feet N.E. of this monument, work equal to 240 cu. feet. Same recorded." Plaintiffs then excavated a new discovery cut within the boundaries of their claim as modified. On March 31, 1905, plaintiffs filed with the county recorder, but not with the district recorder, another or additional location certificate.

On the 13th day of April 1905, the defendants, appellants herein, entered upon the ground in question, and posted a location notice thereon reading as follows: "Notice of Location. The undersigned, hereby give notice that we have located a claim on a lode or vein. (1) The name of said location, or claim is the Winnifred. (2) The name of the locators is as follows, to wit: William Campbell, three-fourths, Add Rickard, one-fourth. (3) The claim was located on April 13th, 1905. (4) Number of lineal feet claimed in length along course of the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the vein or lode as near as may be is as follows, to wit: Situated in the Bullfrog mining district, county of Nye, state of Nevada, commencing at the discovery monument and running 1100 feet north and 400 feet south from the monument, together with 300 feet on each side of the center of the vein. This ground was formerly held by J. H. Ford, Wheeler, and others, and known as Ella May No. 1, but they, not having complied with the law, have forfeited their rights to said claim. This claim is 1,500 feet long and 600 feet wide, and is about 12 or 14 hundred feet west of the Denver lode. Witness our hands this 13th day of April, 1905. [Signed] William Campbell, 3/4ths. Add Rickard, 1/4th. Witness: E. M. Swan." They subsequently monumented and marked the boundaries of their said claim, sunk a discovery shaft, and filed a certificate of location with the district and county recorder, within the time required by law for such acts to be performed. It appears both from defendants' answer and their notice of location that defendants recognized that the plaintiffs had initiated a valid location of the claim in controversy, but contend that whatever rights plaintiffs had to the mining ground had been forfeited for noncompliance with the law before the defendants made their entry and location.

To support the position of appellants, the principal contention made is that the plaintiffs and respondents never made a valid record of their claim, and that such record is an essential part of a valid location. Section 3 of "an act relating to the location, relocation, manner of recording lode and placer claims, mill sites, tunnel rights, amount of work necessary to hold possession of mining claims and the right of co-owners therein" (Comp. Laws, p. 43, § 210) "Within ninety days of the date of posting the location notice upon the claim the locator shall record his claim with the mining district recorder and the county recorder of the mining district or county in which such claim is situated by a location certificate which must contain: 1st, the name of the lode or vein; 2d, the name of the locator or locators; 3d, the date of the location and such description of the location of said claim, with reference to some natural object or permanent monument, as will identify the claim; 4th, the number of linear feet claimed in length along the course of the vein each way from the point of discovery, with a width on each side of the center of the vein, and the general course of the lode or vein as near as may be; 5th, the dimensions and location of the discovery shaft, or its equivalent, sunk upon the claim; 6th, the location and description of each corner, with the markings thereon. Any record of the location of a lode mining claim which shall not contain all the requirements named in this section shall be void. *** And any such record, or a copy thereof, duly verified by a mining recorder or duly certified by a county recorder shall be prima facie evidence of the facts therein stated." The contention of counsel for appellant is well taken, that where there is a district recorder, whose place of business is publicly known, to make a valid record, it is essential to record the certificate of location of a mining claim within such district with the district recorder, as well as with the county recorder. Section 25 of the act heretofore mentioned reads as follows: "Where there is no mining district, or where a district having once existed the residence of the officers within the district and their places of business within the district where the books are kept are not publicly known, district recording shall not be required of the locator or claim owner. But recording shall be required in the office of the county recorder in all cases; as well where...