Indiana Nevada Mining Co. v. Gold Hills Min. & Mill. Co.

• Decision Date: 07 October 1912
• Docket Number: 1,945.
• Citation: 126 P. 965,35 Nev. 158
• Parties: INDIANA NEVADA MINING CO. v. GOLD HILLS MIN. & MILL. CO.
• Court: Nevada Supreme Court

126 P. 965

35 Nev. 158

INDIANA NEVADA MINING CO. v. GOLD HILLS MIN. & MILL. CO.

No. 1,945.

Supreme Court of Nevada

October 7, 1912

Appeal from District Court, Nye County; M. R. Averill, Judge.

Suit by the Gold Hills Mining & Milling Company against the Indiana Nevada Mining Company. From a judgment for plaintiff defendant appeals. Affirmed.

John R Smith, of Denver, Colo., and S. L. Carpenter, of Los Angeles Cal., for appellant.

Thomas Bryant, Nye & Malburn, of Denver, Colo., and Bartlett & Thatcher, of Tonopah, for respondent.

NORCROSS J.

This is a suit brought under the provisions of section 2326, U.S. Revised Statutes (U. S. Comp. St. 1901, p. 1430; Rev. Laws, § 2384), upon an adverse claim and protest filed in the United States Land Office at Carson City, Nev., against the application of the respondent for a patent to three certain mining claims named "Indiana No. 1," "Indiana No. 2," and "Indiana No. 3," embraced in survey No. 3,654. Respondent, as plaintiff in the court below, alleged ownership of the "Conservative claim," embraced in survey No. 3,201, and that the same was located prior to any of the said Indiana claims, and that respondent is entitled to the area in conflict between the said "Indiana" claims and the said "Conservative" claim. An answer was filed putting in issue the material allegations of the complaint. A diagram accompanying appellant's brief is here inserted showing substantially the area in controversy, only that portion of which shown in black is now questioned on this appeal by appellant.

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The court below found the facts of the case as follows:

"First. That the Conservative lode mining claim was duly located under the laws of the state of Nevada and the United States on the 23d day of January, A. D. 1905, and since that time has been maintained as a valid location under said laws.

Second. That the Indiana No. 1 lode mining claim was duly located under the laws of the state of Nevada and the United States on or about the 17th day of February, A. D. 1905, and has been maintained as a mining location from that time to the present.

Third. That, as originally located, the Indiana No. 1 lode mining claim lay about 100 feet west of its present position as shown by its patent survey.

Fourth. That, before the boundaries of the Indiana No. 1 were defined by stone monuments, the south boundary of the Conservative lode mining claim had been defined by two stone monuments, one at its southwest corner about 79 feet north of its present southwest patent post, and the other at a point south 17~ 41' west 151 feet slope measurement from post No. 3, survey 3,049, K. K. No. 1 lode.

Fifth. That, before the boundaries of the Indiana No. 1 were defined as shown by its patent survey, the boundaries of the Conservative had been defined by posts set very nearly in the positions the posts of its patent survey now occupy.

Sixth. That the Indiana No. 2 claim in its present status is junior to the Conservative claim as defined by its survey for amended certificate."

It is the contention of appellant that the portion of ground in question should have been determined to be a part of the Indiana No. 1, and that if not found to be within the exterior boundaries of that claim, as originally located, it was then a portion of the No. 2 location.

The only finding questioned by appellant is the third quoted, supra. This finding was based on conflicting evidence, and under the well-established rule is conclusive on this court. It would seem that the court below held as a matter of law, and it is so contended by counsel for respondent in this appeal, that the location monument as originally placed and maintained, until moved a hundred feet, more or less, to the east at the time of the patent survey, fixed the center of the lode or vein for the purposes of the location; that the lode line must be deemed to pass through the point covered by that monument, and that the side lines of the claim may not be placed more than 300 feet therefrom. This very interesting question of law we need not consider, for the court found as a fact that the claim, as originally marked on the ground, had its easterly side line substantially 300 feet easterly of a line passing through the discovery monument as established at the date of the location.

As the patent survey of the Conservative was made in January, 1907 and the south end line of the claim was moved to the south of the line originally monumented to correspond with the call in the location notice and certificate prior to...