Southern Nevada Gold & Silver Min. Co. v. Holmes Min. Co.

• Citation: 73 P. 759,27 Nev. 107
• Parties: SOUTHERN NEVADA GOLD & SILVER MIN. CO. v. HOLMES MIN. CO.
• Decision Date: 01 October 1903
• Court: Supreme Court of Nevada

73 P. 759

27 Nev. 107

SOUTHERN NEVADA GOLD & SILVER MIN. CO. v. HOLMES MIN. CO.

Supreme Court of Nevada

October 1, 1903

Fitzgerald J., dissenting.

Appeal from District Court, Esmeralda County.

Ejectment by the Southern Nevada Gold & Silver Mining Company against the Holmes Mining Company. From a judgment for plaintiff defendant appeals. Affirmed.

W. E F. Deal and P. M. Bowler, for appellant.

J. D Treadwell and Bert Schlesinger, for respondent.

BELKNAP C.J.

This is an action of ejectment for the recovery of the possession of plaintiff's mine and damages for ore extracted. It was tried by the First Judicial District Court and a jury, and a verdict rendered in favor of plaintiff for the possession of the mine, and for damages in the sum of $48,000. A motion for new trial was made and overruled, and from the order and judgment an appeal has been taken.

It was conceded at the trial that respondent was the owner of the Chief of the Hill claim, and appellant the owner of the Northern Belle, First Easterly Extension of the Northern Belle, and General Thomas No. 3, and that each of these claims of appellant was prior in location to that of respondent. Although the action was in ejectment for plaintiff's mine, the real controversy was whether respondent or appellant was entitled to so much of the General Thomas No. 3 vein as is within the Chief of the Hill location. Respondent contended that the General Thomas No. 3 and its Chief of the Hill claim are upon the same ledge; that the General Thomas No. 3 ledge crosses its easterly side line, and enters the Chief of the Hill ground at its westerly end line, and thence runs in an easterly direction in the Chief of the Hill ground; that there are two distinct ledges upon the surface--one the Northern Belle, the other the General Thomas No. 3; that the ledges are divided by a body of country rock of varying width, but sufficient to indicate separate fissures; that in the underground workings upon the eighth level of the Northern Belle mine--practically the first level of the General Thomas No. 3, owing to the slope of the hill--the mass of country rock separated the ledges by about 100 feet, and that the separation continued downward to the eleventh level, from which the disputed ore was taken. The identity of the General Thomas No. 3 with that of the Chief of the Hill was shown in part by a drift through country rock from the Chief of the Hill tunnel, from which a winze was sunk 65 feet to stopes made by appellant upon the eleventh level within the ground of respondent, and was supplemented by expert testimony and that of practical miners to the effect that the ledges were the same, with the reasons upon which the conclusion was based. Appellant contended that the Holmes or Northern Belle ledge extended through each of its claims, to wit, Northern Belle, First Easterly Extension of Northern Belle, and the General Thomas No. 3; that the ledge at the surface is several hundred feet in width, and that there is only one vein in its mining ground; that the country rock between the General Thomas No. 3 and the Northern Belle is not a separation of the veins, but an intrusion within the walls of the ledge, commonly called a "horse" by miners; that there is no ore connection between the General Thomas No. 3 and the Chief of the Hill; that the latter is a separate vein, and either disappears or turns to its northerly side line before reaching the General Thomas No. 3.

It is claimed that the evidence is insufficient to support the verdict. The evidence was conflicting upon all material points. There was substantial evidence upon each side. The jury could have adopted the theories of respondent or those of appellant, according to the view they may have taken of the testimony, and upon appeal this court could not properly disturb the judgment upon the ground of insufficiency of evidence. The jury adopted the views of respondent. It was sanctioned by the district court in denying a motion for new trial, and for this court now to interfere upon the ground that the verdict is against the weight of evidence would be, in effect, to abolish the institution of juries.

Among the instructions given at the request of respondent are the following: "(5) The right of the owner of a mining location to follow a ledge beyond his side lines is limited to the right to follow the ledge downward--that is, on its dip; and he has not the right to follow it laterally, or along its strike. If, therefore, a ledge so bends or curves in its course or strike that vertical planes drawn through the end lines of that location will include a portion of the dip of the ledge which cannot be reached from that location without following laterally or along its strike, then the owner of the location has not the right to enter upon that portion of the ledge, or to extract any ore therefrom. (6) If the jury finds from the evidence that there is, within the lines of the General Thomas No. 3, the apex of a ledge, which leaves that location by crossing its easterly side line, and which enters the Chief of the Hill by crossing its westerly end line, and which thereafter continues easterly on its course or strike within the side lines of the latter location, and that the course of that ledge is so bent or curved that its dip within the Chief of the Hill makes a large angle with its dip within the General Thomas No. 3, so that a portion of the dip included within vertical planes drawn downward through the end lines of each of said locations cannot be reached from the General Thomas No. 3 without following the ledge laterally or along its strike, then the defendant, as the owner of the latter location, had not and has not the right to enter upon or extract ore from that portion of said ledge."

The objection to the instructions appears to be in the limitation contained in the following words: "And he has not the right to follow it laterally or along its strike." Under the provisions of section 2322, Rev. St. U.S. [U. S. Comp St. 1901, p. 1425], locators of mining claims "have the exclusive right of possession and enjoyment of all the surface included within the lines of their location and of all veins, lodes and ledges throughout their entire depth the top or apex of which lie inside such surface lines extended downward vertically, although such veins, lodes or ledges may so far depart from the perpendicular in their course downward as to extend outside the vertical side lines of said surface location. But their right to the possession of such outside parts of such veins, lodes or ledges shall be confined...