Gibson v. Hjul

• Decision Date: 30 April 1910
• Docket Number: 1,858.
• Citation: 108 P. 759,32 Nev. 360
• Parties: GIBSON et al. v. HJUL et al. (MITCHELL, Intervener.
• Court: Nevada Supreme Court

108 P. 759

32 Nev. 360

GIBSON et al. v. HJUL et al. (MITCHELL, Intervener.

No. 1,858.

Supreme Court of Nevada

April 30, 1910

Appeal from District Court, Eureka County.

Action by Angus R. Gibson and another against P. H. Hjul administrator of John Pardy, deceased, and another. Henry K Mitchell intervened, and, from a judgment for defendant Pardy, appeals. Affirmed.

A. R Gibson, a witness for defendant Pardy, testified that he together with W. C. Stewart, had leased the Beehive claim from the defendant Pardy and had extracted ore therefrom and shipped the same to reduction works; that the said Maurice Hartnett was aware of the work being done by them upon the Beehive claim, but made no claim whatever that he owned the property. The witness further testified that he had been familiar with the property for a number of years, and that the annual labor was not done on the ground for many years until the Pardy location was made.

W. C. Stewart testified that he was associated with the witness A. R. Gibson in a lease of the Beehive mine from the defendant Pardy; "that Maurice Hartnett knew of the said lease and of the work that the said Stewart and Gibson were doing on the said Beehive mine; and that the said Hartnett never objected thereto, but, on the contrary, lent them some tools to work with on the said mine."

The contention made by counsel for appellant that the proof shows that the end lines of the Beehive claim are not parallel is of no force in this case, as such a fact, if it be a fact, does not make the location invalid, but could only affect extralateral rights, which are not involved in this case. Section 365, Lindley on Mines.

There is evidence in this case that, at the time of the location of the Beehive claim, the Sam Tilden claim was subject to forfeiture for failure to do the annual labor required; that, since the location of the Beehive claim, the defendant Pardy has been in the open, notorious, and adverse possession thereof against the intervener and his grantor and against all the world.

The judgment and order appealed from are affirmed.

SWEENEY, J., concurs.

TALBOT J.

I concur in the affirmance of the judgment of the district court in favor of the defendants for reasons not relating to the invalidity of the location of the Beehive by John Pardy at the time that he was United States deputy mineral surveyor. If the action as between the intervener, who is in the position of a plaintiff, and the defendants, who are the only parties to this appeal, depended upon whether such a surveyor could make a valid location of a mining claim, it might be proper for this court to frankly reverse its decision and correct its conclusion in Hand v. Cook, 29 Nev. 518, 92 P. 3, because the federal courts, acting within the jurisdiction vested in them for finally construing federal enactments, as well as the United States Land Office and the Supreme Court of Utah, have placed an interpretation upon the act of Congress the reverse of that given by a majority of the members of this court in that case.

In Waskey v. Hammer, 170 F. 36, 95 C. C.A. 310, the United States Circuit Court of Appeals, in an opinion by Judge Ross, concurred in by Judges Gilbert and Morrow, after citing section 452, U.S. Rev. St. (U. S. Comp. St. 1901, p 257), which provides that "the officers, clerks and employés in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public lands," and stating that the later rulings in the Land Department were to the effect that this statute is applicable to a deputy surveyor, said: "In the case of Hand v. Cook, 29 Nev. 518, 92 P. 3, a majority of the Supreme Court of Nevada held that the statute in question did not apply to a deputy mineral surveyor; but the reverse was held by the Supreme Court of Utah in the case of Lavagnino v. Uhlig, 26 Utah, 1, 71 P. 1046, 99 Am. St. Rep. 808. It will not do for a court to take a strained and narrow view of the language employed by Congress in its enactments, but rather give such a construction as will carry into effect its obvious intent. We entertain no doubt that a deputy mineral surveyor is an employé 'in the General Land Office,' within the meaning of the statute. *** Nor do we see that there is any much clearer way to prohibit an act than to say expressly that it is prohibited. That Congress did in the section in question. In the case of Prosser v. Finn, 208 U.S. 67, 28 S.Ct. 225, 52 L.Ed. 392, the Supreme Court held that section 452 applied to a special agent of the Land Department who had made an entry under the timber culture act (Act March 3, 1873, c. 277, 17 Stat. 605, as amended by Act March 13, 1874, c. 55, 18 Stat. 21). The court said: 'The...