Steel v. Gold Lead Gold & Silver Min. Co.

• Decision Date: 03 September 1883
• Parties: JOHN STEEL and others v. GOLD LEAD GOLD & SILVER MINING Co.
• Court: Nevada Supreme Court

1 P. 448

18 Nev. 80

JOHN STEEL and others v. GOLD LEAD GOLD & SILVER MINING Co.

Supreme Court of Nevada

September 3, 1883

In an action of ejectment, to recover possession of mining ground if the defendant relies upon a forfeiture by plaintiff for failure to comply with the local rules of the mining district, such forfeiture must be specially pleaded; but in an action to determine conflicting rights to mining claims which may be brought by the plaintiff whether he is in or out of possession, each party must prove his claim to the premises in dispute, and the proof of forfeiture may be given, though not specially pleaded.

Where a company has applied for a patent to a claim, it need not, in order to preserve its rights, protest against any subsequent applications for the same ground while its own application is pending.

Appeal from the first judicial district court, Storey county.

LEONARD J., dissents.

Kirkpatrick & Stephens and Lindsay & Dickson, for appellants.

Lewis & Deal, for respondent.

HAWLEY C.J.

This suit was brought to determine the right of possession to certain mining ground for which defendant had applied for a patent. The complaint and answer contain the usual averments. Defendant subsequently filed a supplemental answer, claiming title to the ground in controversy by virtue of a deed from the Jacob Little Consolidated Mining Company. When the cause was tried, plaintiffs introduced evidence, oral and documentary, tending to prove a valid location by them on January 1, 1877, of the ground described in their complaint as the Emma claim. The defendant introduced evidence, oral and documentary, tending to prove a location made by defendant's grantor, Andrew Charles, on August 28, 1878 of the Gold Lead claim. A witness was then called and testified on behalf of defendant that he was and had been acquainted with the premises described in the complaint as the Emma claim ever since the first day of January, 1877. This witness was then asked the following question: "Did the plaintiffs do any work on the Emma claim in the year 1877?" Plaintiffs objected to this question on the ground that defendant, in its answer, failed to plead or rely upon a forfeiture of plaintiff's interest in the premises in controversy, by reason of their failure to perform the work or make the expenditure required by law upon the Emma claim. This objection was overruled, and the witness testified "that the plaintiffs had done no work on said Emma claim in the year 1877." Other witnesses gave testimony tending to prove that plaintiffs did no work and made no expenditures on the Emma claim in the year 1877, and that plaintiffs did not perform $100 worth of work in labor on said claim in the year 1878.

The plaintiffs, admitted for the purposes of this trial, that the predecessors in interest and grantors of the Jacob Little Consolidated Mining Company made a valid location on the thirty-first of January, 1863, of the Jacob Little Consolidated Mining Company's claim; that said location embraces the portion of the Emma claim described in the answer; that the Jacob Little Consolidated Mining Company, on the second of July, 1877, regularly filed its application for a patent from the United States for said claim; that plaintiffs failed to make or file any protest or adverse claim to said application.

Defendant admitted that the Sierra Nevada Mining Company, within the time allowed by law, duly made and filed its protest and adverse claim to the application of the Jacob Little Company, and within due time instituted a suit in the proper court against the Jacob Little Company to determine the right of possession to the premises embraced in said application; that a judgment was rendered in said action on the twenty-seventh of December, 1878, in favor of the Sierra Nevada Company; that upon the determination of said suit the Sierra Nevada Company caused a certified copy of the judgment roll in said action to be filed with the register of the United States land-office; that no further proceedings have been had in said cause nor in said land-office under said application; that the Sierra Nevada Company has filed its protest and adverse claim against the application of the defendant herein for a United States patent, and duly commenced an action against defendant, which is pending and undetermined, to determine the right of possession to the premises in controversy herein, and that the Jacob Little Company failed to file its protest and adverse claim to the application of the defendant for a patent.

Thereupon defendant offered in evidence a deed executed on the twenty-sixth of September, 1879, from the Jacob Little Company to the defendant, whereby all the right, title, and interest of the Jacob Little Company in and to the Jacob Little claim was conveyed to the defendant. Plaintiffs objected to the admission of this deed in evidence, because it appeared from the admission made by the defendant that the Jacob Little Company, at the time said deed was executed, had no right, title, or interest in the premises in controversy which could be used adversely to the plaintiffs in this action; that said deed, if admissible at all, is only admissible for the purpose of showing title in the defendant to that portion merely of the ...