Nash v. McNamara

• Decision Date: 23 January 1908
• Docket Number: 1,731.
• Citation: 93 P. 405,30 Nev. 114
• Parties: NASH et al. v. McNAMARA et al.
• Court: Nevada Supreme Court

93 P. 405

30 Nev. 114

NASH et al. v. McNAMARA et al.

No. 1,731.

Supreme Court of Nevada

January 23, 1908

Appeal from District Court, Nye County.

Action by A. D. Nash and others against Dan McNamara and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded for new trial.

L. A Gibbons and Wm. Forman, for appellants.

Key Pettman, Campbell, Metson & Brown, and Geo. A. Bartlett, for respondents.

TALBOT C.J.

The respondents, who were plaintiffs in the district court brought this action to recover certain claims called the "Unions," with designated numbers, situated in the Manhattan mining district, and which had been located on the 24th and 25th days of July, 1905. It was also stated in the complaint that the defendants were breaking down and removing large quantities of ore from the premises, and the prayer was for the recovery of possession, for an injunction, and for $10,000 damages. The defendants, who are the appellants here set up ownership and possession of the ground in themselves under the Liberty and Justice mining claims, located September 29, 1905. The contending parties alleged that the respective locations on which they relied had been made on the unappropriated mineral lands of the United States. This allegation in the complaint was denied by the answer. Upon the trial, after evidence had been introduced regarding the location of these claims, the defendants offered to prove that on July 1, 1905, 24 days prior to the location of the Unions and 91 days before the location of the Liberty and Justice, three men, Kopenhaver, Meissner, and Lawson, had made valid locations on the unappropriated mineral lands of the United States of claims called the "Portlands," and numbered, and which covered the ground in dispute, and that these were valid, existing claims at the time the Unions, upon which respondents rely, were located. After argument and consideration the learned district judge sustained an objection to this offer, and, although he did not allow the defendants to prove that at the time the Union claims were located the ground was covered by prior and existing valid locations, he made a finding that the Unions were located upon the unappropriated public domain of the United States and entered judgment in favor of respondents. Of the 42 specifications of error, a number relate directly or indirectly to the rejection of this offer and to the making of this finding, and the controlling question involved is whether a junior location made upon ground covered by a valid existing senior location will prevail over one made after a failure to do the required work on the senior location, when the statute of limitations has not run in favor of either.

Upon the trial, and also upon the hearing in this court, respondents relied upon the case of Lavagnino v. Uhlig, 198 U.S. 443, 25 S.Ct. 716, 49 L.Ed. 1119, contending that the facts there are similar to those in the present case, and that the law applicable to them has been settled by the latest expression of the highest tribunal. It is admitted by counsel for appellants that the language in the decision in that case is in conflict with Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735, and other decisions of that and other courts favorable to appellants; but it is claimed that it is overruled by a later decision of that court in Brown v. Gurney, 201 U.S. 184, 26 S.Ct. 509, 50 L.Ed. 717. Recognizing that it is the special prerogative of the Supreme Court of the United States to finally construe federal statutes, and that its opinions relating to other matters are entitled to special consideration as coming from the highest and ablest tribunal, it becomes important to examine and analyze the conflicting decisions of that court bearing on the issue before us, and to determine which are most in consonance with reason, justice, legal principles, and the statutes relating to the location of mining claims.

Congress, in the proper exercise of its control over the public domain, by Act May 10, 1872, c. 152, § 2 (section 2319 of the Revised Statutes [U. S. Comp. St. 1901, p. 1424]), provided "that all valuable mineral deposits in lands belonging to the United States are free and open to exploration, occupation and purchase by citizens and those who have declared their intention to become such, under regulations prescribed by law." Section 2322 [page 1425] provides that "the locators of all mining claims, so long as they comply with the laws of the United States and with state and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right and enjoyment of all the surface included within their lines of location and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically" within planes drawn through parallel end lines. Section 2324 [page 1426] provides that "the location must be distinctly marked on the ground so that its boundaries can be readily traced; *** that on each claim located after the 10th day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars worth of work shall be performed or improvements made during each year; *** and upon a failure to comply with these conditions the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location had ever been made: Provided that the original locators, their heirs, assigns, or legal representatives have not resumed work upon the claim after failure and before such location."

Section 208 of the Compiled Laws of Nevada directs that any person, a citizen of the United States, or one who has declared his intention to become such, who discovers a vein or lode, may locate a claim by defining the boundaries thereof in the manner prescribed and by posting at the point of discovery a notice containing the name of the lode or claim, the name of the locator or locators, the date of the location, the number of linear feet claimed in length along the course of the vein, with the width on each side of the center, and the general course of the vein or lode. Section 209 as amended by St. 1901, p. 97, c. 93, § 2, requires that before the expiration of 90 days from the posting of notice of location the locator shall sink a discovery shaft upon the claim of the depth of at least 10 feet or its equivalent.

It is the contention of the appellants that the Portland locations, if made on the 1st day of July, as they offered to prove, withdrew the land from location for 90 days, during which time the respondents could initiate no rights upon it; that as the 10 feet of work required by the state statute was not done upon these claims within 90 days after they were located, upon the expiration of that period they became, similarly as upon a failure to do the annual work required by the federal statute, subject to relocation by the appellants at the time they made their locations. As the language of the opinion in the Uhlig Case stands opposed, not only to the law as established by Belk v. Meagher and as held by lawyers and miners for a quarter of a century, but to numerous decisions of the court, state and federal, in the mining states, and to others of the Supreme Court of the United States, it will be advantageous to consider the Belk Case as leading one, representative of numerous others, and compare the two.

The facts in both are similar to the one before the court, in that the contest here is between a claim alleged to have been located upon ground covered by a prior, valid, existing location, and a relocation made upon the same ground after the expiration of the time for doing the required work on the senior claim. In regard to the periods of time between the making of the locations of the contestants, the Belk Case is more like the one before the court than Lavagnino v. Uhlig. In the Belk Case it was conceded by both parties that the original or senior claims lapsed on the 1st day of January, 1877, because of failure to perform the annual work. Belk made the location under which he claimed on the 19th day of December, 1876, and did all that was necessary to perfect his rights, if the premises were open to location at that time. His entry on the property was peaceful. On February 21, 1877, Meagher made his location, doing all that was necessary to perfect his rights, if the premises were then open to location. Here the difference in the respective dates of location of the contending claims is about 70 days, as in the Belk Case. The two Uhligs, evidently at an expense of not less than $1,600 for the annual work, had been located and maintained for 9 years previous to the location of the claims upon which Lavagnino relied. The statute of limitations applicable to such cases in Utah is 7 years. In Nevada it is 5 years for real estate and 2 years for mining claims. Comp. Laws, § 3706. This difference of time, amounting to nearly 9 years, a period longer than the one specified in the statute, and 70 days, is sufficient to distinguish the Uhlig Case from the present one, and also from the Belk Case, which is more nearly in point. State statutes of limitation relating to mining claims are recognized by section 13 of the act of Congress of July 9, 1870. Properly Uhlig was given his claims by the Supreme Court of Utah, and that judgment was affirmed by the Supreme Court of the United States; but, should force be given to all the language used in that case by the highest tribunal, it conflicts with the Belk Case and other cases.

The following extracts from the unanimous opinion of the court written by the Chief Justice, in Belk v. Meagher, are appropriate: "Mining claims are not...