Noble Gold Mines Co. v. Olsen

• Decision Date: 05 April 1937
• Docket Number: 3159.
• Citation: 66 P.2d 1005,57 Nev. 448
• Parties: NOBLE GOLD MINES CO. v. OLSEN et al.
• Court: Nevada Supreme Court

66 P.2d 1005

57 Nev. 448

NOBLE GOLD MINES CO. v. OLSEN et al.

No. 3159.

Supreme Court of Nevada

April 5, 1937

Appeal from District Court, Pershing County; L. O. Hawkins, Judge.

Action by the Noble Gold Mines Company against R. C. Olsen and others. From a judgment for defendants and an order denying plaintiff's motion for a new trial, plaintiff appeals.

Affirmed.

Clarence L. Young, of Lovelock, for appellant.

W. A Wilson and H. J. Murrish, both of Lovelock, for respondents.

TABER Justice.

This cause comes here on appeal from a judgment of the Sixth judicial district court, Pershing county, and from an order of said district court denying a motion for new trial. Appellant was plaintiff in the court below. The action was brought to quiet its title to the northeast quarter of the northeast quarter of section 15, township 33 north, range 30 east, Mount Diablo base and meridian; also an irregular parcel of land described as follows: Beginning at the southeast corner No. 6 of the North Star lode mining claim in Scossa mining district, Pershing county, Nev., and running thence north 16° 44' east 648 feet, more or less, to the section line between section 10 and 15 of township 33 north, range 30 east, M. D. B. & M.; thence in an easterly direction 74 feet, more or less, along the north boundary line of section 15 to the northeast corner of the northwest quarter of the northeast quarter of section 15, township 33 north, range 30 east, M. D. B. & M.; thence south along the east side line of said northwest quarter of the northeast quarter of said section 15, 620 feet, more or less, to a point; thence west and parallel to the north boundary line of said section 15, 265 feet, more or less, to corner No. 6 of North Star lode mining claim, the point or place of beginning, situated in Scossa mining district, Pershing county, Nev.

The original official government survey of the lands in the vicinity of the above-described property was made in 1875. In 1903 said section 15, as nonmineral land, was patented to the Central Pacific Railroad Company. By deed dated February 4 1931, the Southern Pacific Land Company conveyed to George B Noble, now president of plaintiff corporation, the northeast quarter of the northeast quarter of said section 15. On February 23, 1933, said George B. Noble deeded said subdivision to plaintiff.

The Scossa mining district was organized in 1930, and the Scossa brothers, Charles and James, after whom the new mining camp was named, located the North Star load mining claim. On the 2d day of July, 1931, the Scossa deeded to said George B. Noble the irregular piece of land hereinbefore described. Said George B. Noble, in turn, deeded said irregular tract to plaintiff February 23, 1933.

On December 11, 1930, defendant R. C. Olsen, and his father, J. P. Olsen, located the Hawk Eye lode mining claim just east of said North Star claim. On March 27, 1931, defendant R. C. Olsen and E. F. Laughton located the Belcher lode mining claim a short distance easterly from said Hawk Eye claim. All the essentials of both federal and Nevada laws were complied with to make said Hawk Eye claim valid, except that, as contended by plaintiff, the point of discovery, location monument, location work, annual labor and all other work done on said claim were on patented land owned at the time of its location by the Central Pacific Railroad Company and, at the time this suit was brought, by plaintiff corporation.

No government survey monuments were found in the immediate vicinity of any of the above-named mining claims at or about the time of their location, so the interested parties could not without a new survey know where the section lines were as originally established by the government, nor on what sections or subdivisions their claims were located. A survey was made in February, 1931, by Carl Stoddard and Kerby Stoddard, who were originally employed to make the survey by Martin Goni and Herbert Hamlin. It is admitted that George B. Noble was interested in the hiring of the Stoddards to make this survey and that he contributed $50 towards its cost. One of the chief purposes of the Stoddard survey was to locate the boundary line between sections 10 and 15 in said township. This boundary line, as located by said survey, will henceforth be referred to as the Stoddard line. It cut across and approximately bisected the shaft then being sunk by Mr. Noble in ground believed by him to be within the exterior boundaries of his said railroad subdivision.

Since the Stoddard survey, it has at all times been admitted that a portion of the Hawk Eye claim, as originally marked on the ground, extends to the south across the boundary line between said sections 10 and 15 and onto the said northeast quarter of the northeast quarter of section 15, the subdivision owned by plaintiff. According to this survey, the discovery point and location monument of the Hawk Eye claim are, and all work done by defendants has been, north of the Stoddard line. Defendants, since said survey, have never claimed any ground south of that line, and plaintiff admits that they have not at any time done any work there.

The boundary line between said sections 10 and 15 has been located in at least three other places than that established by the Stoddard survey. In January, or early in February, 1931, Tom Mack, employed by the corporation which sold said 40-acre subdivision to Mr. Noble, located the boundary line between said sections about 200 feet south of the Stoddard line. John G. Huntington, whose qualifications as a surveyor were admitted by defendants just as Carl Stoddard's qualifications were admitted by plaintiff, made a survey in the summer of 1935 and first located said boundary line about 260 feet north of the Stoddard line, later establishing it approximately 200 feet north thereof. According to Mr. Huntington's survey, the discovery point and location monument of the Hawk Eye claim are, and practically all work done by defendants has been, south of the boundary line between said section 10 and 15. Upon the basis of the Huntington survey, plaintiff, on August 2, 1935, served written notice on defendants that their shaft and principal workings were located within the boundaries of plaintiff's patented land, and requesting them to evacuate the property of which they were in possession. Defendants having failed to comply with said notice, plaintiff commenced this action on the 11th day of August, 1935.

The defense was based on two contentions: First, that the Stoddard line is the true boundary line between sections 10 and 15; and, second, that were it to be conceded that the preponderance of evidence favors the Huntington survey, plaintiff is estopped, as to the defendants, on the issues made in this case, from asserting that the Stoddard line is not the boundary line between said sections. By way of cross-complaint, defendants alleged their ownership, subject to the paramount title of the United States, in the Hawk Eye claim, and prayed the court to quiet their title thereto. The trial court did not make any finding, based on the surveys alone, determining the true boundary line between said sections 10 and 15. It based its decision squarely upon the ground that plaintiff was estopped from maintaining its suit and from denying that the Stoddard line is the dividing line between its property and that of defendants.

Following, in substance, is the evidence chiefly relied upon by defendants in support of their plea of estoppel.

Plaintiff and Mr. Noble, knowing of defendants' location of the Hawk Eye claim from the beginning, knowing also of the expense being incurred and work being done by defendants, took no steps to dispossess them for more than 4 1/2 years after said claim was located, nor until, through their efforts and the outlay of approximately $10,000, it had produced about $8,000 in ore values and had become a paying proposition. Mr. Noble has lived at Scossa since some time in 1930, and he and plaintiff, ever since that time, have operated mining properties in immediate proximity to the Hawk Eye claim.

Defendants further point out that in the deed from the Scossas to Mr. Noble, Mr. Noble's deed to plaintiff, and in plaintiff's complaint, the first course in the description of the irregular tract of land hereinbefore mentioned begins at the southeast corner of the North Star claim and runs thence north 16° 44' east 648 feet, more or less, to the section line between said sections 10 and 15. W. A. Pray, a qualified surveyor employed by defendants after this action was commenced, measured said course from said corner of the North Star claim to the Stoddard line and found the distance to be approximately the same as that given in said deeds and complaint, to wit, 650.8 feet, showing clearly, as defendants contend, that the Stoddard line was regarded by the parties to said deeds as the boundary line between said sections, and that the second course in the description of said irregular tract, being the north boundary thereof, was intended to run easterly along said Stoddard line.

Before accepting the Scossa deed, Mr. Noble caused a survey to be made of the irregular tract by Mr. Frank O'Leary, a civil engineer, for the purpose of assuring a correct description.

The Stoddard line has been accepted by defendants ever since it was located. After the Stoddard survey, defendants did not at any time attempt to take possession of or do any work on any ground south of the Stoddard line.

Edward M. Ranson, locomotive fireman residing at Imlay, Nev., and co-owner, with R. Nenzel, of the Belcher claim, testified that in 1933 and 1934 he was employed at Scossa as foreman at the Red Top mine for the American Milling & Mining Company and as a miner at the Great...