Sissons v. Sommers

• Decision Date: 14 January 1899
• Parties: SISSONS et al. v. SOMMERS et al.
• Court: Nevada Supreme Court

55 P. 829

24 Nev. 379

SISSONS et al. v. SOMMERS et al.

Supreme Court of Nevada

January 14, 1899

Appeal from district court, Washoe county; A. E. Cheney, Judge.

Action by D. H. Sissons and others against Robert Sommers and others. From a judgment for defendants, and an order denying a new trial, plaintiffs appeal. Affirmed.

Goodwin & Dodge and Wren & Julien, for appellants.

R. M Clarke, for respondents.

BONNIFIELD C.J.

This action was brought to recover damages of the defendants for the alleged wrongful entering upon the Morning Star mining claim, and extracting and removing therefrom large quantities of valuable mineral-bearing rock, and to obtain a perpetual injunction, restraining defendants from continuing the trespass. By the complaint the claim is particularly described by metes and bounds, and as being situated in Olinghouse canon, White Horse mining district, Washoe county state of Nevada, and it is alleged, among other things, that the plaintiffs were, are now, and ever since the 24th day of May, 1897, have been, the owners, in the possession, and entitled to the possession, of said mining claim. The answer puts in issue all the material allegations of the complaint and alleges all the facts necessary to constitute a valid mining location by the defendants, December 22, 1897, of the mining ground described in the complaint, and named by defendants the "Forlorn Hope Vein." And it is alleged that the defendants are the owners, in the possession, and entitled to the possession, of said mining claim. The sufficiency of the evidence on the part of the defendants is not questioned by the plaintiffs, except that it is claimed that the ground was not subject to location by them. The case was tried by the court sitting without a jury. The trial resulted in a judgment for the defendants. The plaintiffs appeal from the judgment, and from the order of the court denying their motion for new trial.

The plaintiffs' claim to said mining ground is based upon a location thereof claimed to have been made the 22d day of May, 1897, by one of the plaintiffs, and they introduced evidence to prove the performance of every act necessary to constitute a valid location, and every condition requisite to continue the right acquired thereby, under the laws of congress and of this state. The sufficiency of such evidence in every material particular was contested at the trial, and is assailed by counsel of defendants on appeal, by elaborate argument, while counsel for plaintiffs maintain the sufficiency of the evidence to prove every material fact by like argument. As we understand it, the court found for the plaintiffs on all the facts except as to the doing of the discovery work prescribed by St. Nev. 1897, p. 103, which provides: "Sec. 2. Before the expiration of ninety days from the posting of such notice upon the claim the locator must sink a discovery shaft upon the claim located to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary, to show by such work a lode deposit of mineral in place. A cut, or cross cut, or tunnel which cuts the lode at a depth of ten feet, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft." The court found, in effect, that the discovery work done by plaintiffs within the 90 days was not sufficient under said statute, and that no further work was done by the plaintiffs prior to the entry of the defendants upon said mining claim on the 22d day of December, 1897. As conclusion of law the court found that the plaintiffs' location of the Morning Star mining claim was not completed prior to the entry of the defendants, on account of the lack of the amount of discovery work required by said statute, and gave judgment for defendants accordingly. Counsel argue and urge that the work performed by the plaintiffs was a substantial compliance with said statute. By stipulation of the parties the judge of the trial court visited the mining claim to determine from actual inspection and observation the sufficiency of the discovery work done by the plaintiffs, and to determine all other disputed matters of fact so far as the same might be determined by such examination. We do not...