Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co.
Decision Date | 03 January 1914 |
Docket Number | 1942. |
Citation | 138 P. 71,36 Nev. 543 |
Parties | ROUND MOUNTAIN MINING CO. v. ROUND MOUNTAIN SPHINX MINING CO. |
Court | Nevada Supreme Court |
On rehearing. Former opinion overruled, and judgment reversed and remanded.
For former opinion, see 35 Nev. 392, 129 P. 308.
R. G Withers, of Reno, and Dickson, Ellis & Shulder, of Salt Lake City, Utah, for appellant.
Curtis H. Lindley, of San Francisco, Cal., Detch & Carney, of Goldfield, and William E. Colby, Grant H. Smith, and Horatio Alling, all of San Francisco, Cal., for respondent.
The facts in this case presenting a somewhat novel as well as important question of law relative to the construction of a patent to a group of mining locations, and the petition for a rehearing having raised a doubt in the minds of members of the court as to the correctness of certain of the conclusions heretofore reached, and it appearing that we were in error in accepting as a fact the statement "Appellant made no exclusion in favor of the Los Gazabo, either in its verified application for patent, or in its published notice, or in its final application to purchase," contained in the brief of respondent (35 Nev. 406, 129 P. 308), the court was impelled to grant a rehearing. The case has been reargued and we have again carefully considered the questions involved aided by the exhaustive briefs and the illuminating arguments of eminent counsel upon both sides of the case. As a result of the further examination we have given to this case, we are convinced that we were in error in adopting in their entirety the views expressed by the learned trial judge.
The character of the action is stated in the former opinion (35 Nev. 393, 129 P. 308). Reference is there made to the issues in the case, but we think it advantageous to quote in addition the following paragraph in the amended answer "Denies that the plaintiff is now or ever was the owner of, possessed of, or entitled to the possession of the Los Gazabo mining claim, situate in the Jefferson mining district, Nye county, Nev., but admits upon information and belief that the plaintiff has by some means obtained an alleged patent for the said pretended Los Gazabo mining claim, which said alleged patent defendant alleges is without force or effect and wholly null and void because the same was not obtained or issued in pursuance of the statutes of the United States therein and for the providing of the issuance thereof."
For convenience of reference, we incorporate in this opinion the diagram showing the relative situation of the Gold Leaf mining claim, the property of respondent, and the Sunnyside-Los Gazabo group, the property of appellant.
(Image Omitted)
We think it important also to set forth a portion of the language of the patent to this group, as the validity of that part of the patent which purports to grant title to the Los Gazabo claim is the ultimate question upon appeal in this case. The patent, in part, reads: "Whereas, in pursuance of the provisions of the Revised Statutes of the United States, chapter six, title thirty-two, and legislation supplemental thereto, there have been deposited in the General Land Office of the United States the plat and field notes of survey and the certificate, No. 1315, of the register of the land office at Carson City, in the state of Nevada, accompanied by other evidence, whereby it appears that the Round Mountain Mining Company did, on the twenty-eighth day of May, A. D. 1908, duly enter and pay for that certain mining claim or premises, known as the Sunnyside No. 1, Sunnyside No. 2, Sunnyside No. 3, Sunnyside Fraction and Los Gazabo lode mining claims, designated by the Surveyor General as Survey No. 2815, embracing a portion of the unsurveyed public domain, in the Jefferson mining district, in the county of Nye and state of Nevada, in the district of lands subject to sale at Carson City, and bounded, described and platted as follows: * * *." Here follows a description by courses and distances of the several mining claims which the patent purports to convey in the order first above mentioned in the patent.
In view of the allegation in the answer that the patent to the Los Gazabo is void because the same was not obtained or issued in pursuance of law, it is well to consider to what extent a patent is subject to collateral attack.
We quote from Lindley on Mines (2d Ed.) § 777, the following: The same eminent author in section 742 says:
In Empire State Co. v. Bunker Hill Co., 114 F. 420, 52 C. C. A. 222, Ross, J., speaking for the Circuit Court of Appeals, Ninth circuit said: See, also, s. c., 109 F. 538, 48 C. C. A. 665, and 186 U.S. 482, 22 S.Ct. 941, 46 L.Ed. 1260.
In the case of U.S. Mining Co. v. Lawson, 134 F. 769, 67 C. C. A. 587, the Circuit Court of Appeals, Eighth circuit, speaking through Van Devanter, J., expressed the view that, from the inclusion of a conflicting area within a patent to a mining location, it did not necessarily follow that the...
To continue reading
Request your trial-
Walls v. Evans
... ... rules governing mining operations carried on thereunder ... There is ... Co. v. Oil Co., 104 F. 20, 45; Round ... Mountain Mining Co. v. Round Mountain Sphinx ... ...
-
United States v. Mobley, 108.
...362, 363; Beals v. Cone, 27 Colo. 473, 484, 495, 62 P. 948, 83 Am.St.Rep. 92; 20 Mor.Min.Rep. 591; Round Mountain Min. Co. v. Round Mountain Sphinx Min. Co., 36 Nev. 543, 560, 138 P. 71; New England & C. Oil Co. v. Congdon, 152 Cal. 211, 213, 92 P. 180. Nor does assessment work take the pla......
-
Cole v. Ralph
...Ct. 187, 56 L. Ed. 359; Beals v. Cone, 27 Colo. 473, 484, 495, 62 Pac. 948, 83 Am. St. Rep. 92; Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co., 36 Nev. 543, 560, 138 Pac. 71; New England Oil Co. v. Congdon, 152 Cal. 211, 213, 92 Pac. 180. Nor does assessment work take the pla......
-
Dredge Corp. v. Husite Co., 4413
...main contention: Burke v. Southern Pacific R. R. Co., 234 U.S. 669, 34 S.Ct. 907, 58 L.Ed. 1527; Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co., 36 Nev. 543, 138 P. 71; Earl v. Morrison, 39 Nev. 120, 154 P. 75; Gale v. Best, 78 Cal. 235, 20 P. 550, 12 Am.St.Rep. 44; Crofoot v......