Murray v. Osborne

• Decision Date: 01 October 1910
• Docket Number: 1,842.
• Citation: 111 P. 31,33 Nev. 267
• Parties: MURRAY et al. v. OSBORNE et al.
• Court: Nevada Supreme Court

111 P. 31

33 Nev. 267

MURRAY et al. v. OSBORNE et al.

No. 1,842.

Supreme Court of Nevada

October 1, 1910

Appeal from District Court, Nye County; J.P. O'Brien, Judge.

Action by Sutherland Murray and another against Charles H. Osborne and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

McIntosh & Cooke, for appellants.

Bartlett Thatcher & Gibbons and J. A. Sanders, for respondents.

TALBOT J. (after referring as above to the recited part of the opinion of the district judge).

On behalf of appellant, it is urged that the evidence does not support the findings or judgment, which was rendered in favor of respondents and plaintiffs; that the court erred in refusing to make certain specific findings of fact submitted and requested by appellant in lieu of the findings of the court which were mere conclusions of law; that the Juanita notice was defective because it did not refer to that claim as a relocation of the ground; and that, under the plaintiffs' own testimony, they cannot maintain the location of their mining claims, and are not entitled to judgment because they failed to do the amount of location work required by the statute in new ground in addition to the removal by them of dirt which had caved in the old cut and tunnel where the work according to plaintiffs' witnesses was performed.

Particular objection on the ground that it is a conclusion of law is made to finding No. 1, "that on the 5th day of May 1908, plaintiffs by or through their grantors and predecessors in interest were, and ever since have been, the owners in possession and entitled to possession of the Juanita and Juanita No. 1 mining claims." It is clear from the allegations, proofs, other findings, and judge's opinion that the use of the figure 8 was a clerical mistake, and that the year 1906 was intended. If this finding stood alone, appellants, upon request and petition within five days after the rendering of the judgment, as was done, would have been entitled to a finding detailing the facts regarding the posting of notices, the marking of boundaries, and the doing of the location work upon the claims. After referring to these locations as having been made by the locators on May 5, 1906, it is stated in finding No. 10: "That said locations Juanita and Juanita No. 1 were and each of them was made and perfected as by law required. That notices of said claims, to wit, Juanita and Juanita No. 1, were posted on the ground located. That the discovery work required by law was done upon said locations, to wit, Juanita and Juanita No. 1, within the time required by law by the locators of said claims. That each of said claims, to wit, Juanita and Juanita No. 1, was monumented, and the boundaries thereof defined by monuments within the time required by law therefor."

Appellants say that it is important to them to have a finding showing the amount of new work, the number of feet, and the place where it was done, for they are proceeding on the theory that 10 linear feet of new work was not performed in the tunnel by plaintiffs, and that new work to this extent was necessary to perfect the plaintiffs' location. Taking the statement in the findings quoted and the one in the opinion of the district judge that the cut at the entrance to the tunnel for a distance of about 15 feet and the tunnel for a length of about 30 feet had been cleared of dirt which had caved until it was about as high as the tunnel in places, and that the tunnel had been extended 5 or 6 feet, it is clear that the district judge concluded that the tunnel had been extended only 5 or 6 linear feet, and that this extension, in addition to the removal of the earth which had caved in the cut and tunnel for a distance of about 45 feet, was sufficient location work on the Juanita. Under our practice, when findings are not made or requested, any findings necessary to support the judgment are presumed. In view of the position taken by the appellants, it is important here to have a finding, or have it appear, that the amount of work required by the statute had not been done in new ground. But as it is apparent to this court from the other findings and the opinion of the district judge...