Nelson v. Smith

• Decision Date: 04 December 1918
• Docket Number: 2299.
• Citation: 176 P. 261,42 Nev. 302
• Parties: NELSON et al. v. SMITH et al.
• Court: Nevada Supreme Court

176 P. 261

42 Nev. 302

NELSON et al. v. SMITH et al.

No. 2299.

Supreme Court of Nevada

December 4, 1918

Appeal from District Court, Mineral County; J. Emmet Walsh, Judge.

Action by J. P. Nelson and another against Chris. Smith and another. From judgment for plaintiffs, and from order denying new trial, defendants appeal. Appeal from judgment dismissed, and order denying new trial affirmed.

Wm Forman, of Tonapah, and T. L. Foley, of Goldfield, for appellants.

Withers & Withers, of Reno, for respondents.

SANDERS J.

There are two appeals in this case included in the one notice taken by the defendants. One is from the judgment; the other from the order denying the defendants' motion for a new trial.

Upon the case being called for argument in this court, counsel for respondents, upon notice previously given, moved the court to dismiss both appeals, upon the ground that neither had been taken within the time required by law.

Section 5329, Revised Laws, provides, inter alia, that an appeal may be taken from a final judgment in an action within 6 months after the rendition of the judgment; that an appeal from an order refusing or granting a new trial may be taken within 60 days after the order has been made and entered in the case.

It affirmatively appears from the record that the judgment in this case was rendered on the 25th of November, 1915, and that the appeal therefrom was taken on the 9th of July, 1917 a period of more than 19 months after the rendition of the judgment. The motion to dismiss the appeal from the judgment is therefore granted. Central T. Co. v. Holmes Co., 30 Nev. 437, 97 P. 390; Ward v. Silver Peak, 37 Nev 470, 143 P. 119.

It also affirmatively appears from the record that the order refusing a new trial was made and entered in the minutes of the court on the 10th day of May, 1917. The appeal from the said order was taken on the 9th of July, 1917, within 60 days after the entry of the order in the minutes of the court. Clearly, the time for taking an appeal from an order refusing or granting a motion for a new trial begins to run from the date of the entry of the order in the minutes of the court, and not from the date of the filing of a decision upon the merits of the motion. The motion to dismiss the appeal from the order denying a new trial is denied.

This action was commenced in the district court of Mineral county for the double purpose of quieting the plaintiffs' title to a group of lode mining claims situate in the Bell Mining District, described in the complaint as the Royal George group, consisting of the Royal George, Royal Georges Nos. 2, 3, 4, 5, 6, 7, 8, and the Royal George Protector, and to enjoin the defendants from perfecting or attempting to perfect a mining location upon and over the premises, or any part thereof, and to restrain the defendants from mining or extracting ore from the plaintiffs' discovery. It developed, however, from the subsequent pleadings, as well as from the admission of counsel, that the real controversy in the case relates to the possession, or right to the possession, of 262 feet of valuable mining ground included within the exterior boundaries of the plaintiffs' alleged Royal George No. 4 and Royal George Protector locations, and the defendants' alleged superior right thereto in virtue of their alleged Gilt Edge Fraction lode mining claim. The issues were submitted to a jury, and a general verdict returned in favor of the plaintiffs in this language: "We, the jury, find the issues joined in this case in favor of the plaintiffs." The trial court evidently considered this verdict, informal as it was, as binding upon the court, and adopted the verdict as a finding of fact without any further or additional findings, and as conclusions of law the court found:

"That as against the defendants the plaintiffs are the owners, in the possession, and entitled to the possession, of all the ground claimed by the defendants as their alleged Gilt Edge Fraction lode mining claim, being the whole thereof which is in conflict with and overlaps the plaintiffs' said Royal George No. 4 mining claim and Royal George Protector mining claim, and that the defendants have not, nor has either of them, any right, title, or interest in or to any ground included within the exterior boundaries of said Royal George No. 4 mining claim, or said Royal George Protector lode mining claim, and that their alleged Gilt Edge Fraction lode mining claim is not a valid, subsisting lode mining location made upon the unappropriated public domain of the United States, and that the defendants acquired no rights whatever by their asserted location of said alleged Gilt Edge Fraction lode mining claim, and that all rights asserted by the defendants in this action adverse to the plaintiffs are wholly void and of no effect."

And further found that the plaintiffs were entitled to the injunctive relief demanded by their complaint, and ordered judgment and decree to be entered accordingly.

Before proceeding further with the discussion, we will dispose of a preliminary motion made by the appellants in the course of the trial.

Upon the calling of the case for trial in the district court, one of counsel for plaintiffs requested of the court that the name of George S. Green, Esq., be entered of record as attorney for plaintiffs. This request was met by a motion on the part of defendants' counsel for an order barring the said Green, or the firm of Mack & Green, of which he was then a member, from appearing as attorney for plaintiffs, upon the ground that said George S. Green and the said firm of Mack & Green had been hired previously to act as attorneys for the defendants in this cause. Evidence, both oral and documentary, was adduced in support of and against the granting of the motion. The court denied the motion. This ruling constitutes one of the principal assignments of error relied upon by the defendants in support of their motion for a new trial. The question being one purely of fact, and decided by the trial court upon conflicting testimony, we are not authorized to disturb the ruling. Furthermore, we are not prepared to say that the court abused its discretion in denying the motion.

The purely legal questions involved in this appeal relate to the validity of lode mining claim locations under the act of Congress of May 10, 1872, c. 152,§§ 2, 5, 17 Stat. 91, 92 (U. S. Comp. St. 1916, §§ 4615, 4620), that provides, inter alia, that a mining claim "may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode." "The location must be distinctly marked on the ground, so that its boundaries can be readily traced."

The briefs are devoted largely to an able and extended discussion of the effect of our local law (section 2422, Rev. Laws) upon a lode mining claim that as staked or monumented covers more ground than called for in the notice of location posted at the point of discovery, and includes more of the vein than allowed by the federal and state law. If the location by virtue of which the plaintiffs claim title and right to the possession of the ground in dispute is invalid under the federal law, it must follow that it is also invalid under the local statute. The rights of the contestants must primarily be determined by the rules of law concerning the right of possession of mining claims under the act of Congress. In this connection it is well to give a connected statement of the facts concerning the locations in question:

First. Royal George No. 4.-Nelson, one of the plaintiffs and respondents, located this claim on the 4th day of February, 1915. The evidence tends to show that the location, as was all of the other locations referred to in the complaint, was monumented without the aid of a compass or other instrument. It appears from the notice of location that the locator claimed 600 feet of the vein in a westerly direction and 900 feet in an easterly direction from the point of discovery.

Second. Royal George Protector.-The testimony of Nelson, the locator, tends to show that in the month of May, 1915, he discovered a cross-vein at or near the easterly end line of the Royal George No. 4. It also appears that at or near the point of contact of these veins Nelson uncovered what promises to be a mine. To secure the full benefit of his discovery at this point he located all the adjacent territory by virtue of the Royal Georges Nos. 5, 6, 7, and 8. It appears that these and prior locations were so marked on the ground as that their end lines served as a common end line for the entire group, except the Royal George Protector. Nelson, according to his testimony, became fearful or apprehensive, because of the apparently long distance from the point of the discovery on the Royal George No. 4 to the easterly end line as staked, that there might be some vacant ground between the point 900 feet as called for by his location notice and the easterly end of the claim as monumented that included his later discovery, and, as he says, "to claim any vacant ground that might be there," he, without amending the location of the Royal George No. 4, on May 15, 1915, located the supposedly excess ground by posting a notice of location in the southeast corner monument of the Royal George No. 4, which then served as a common corner for Nos. 2, 4, 7, and 8, claiming by this notice 200 feet in a southerly direction, and 1,300 feet in a northerly direction, and 300 feet on each side, and called the claim "Royal George Protector."

Third. Gilt Edge Fraction Lode Claim.-It appears the defendants (appellants), upon reading the description contained in the location notice of the Royal George No. 4 and stepping off the distance from the discovery point to the easterly end line as plainly...