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tiff herein, cannot operate as a bar to this action.

As to the bar of the statute of limitations, it is sufficient to say it was not established by evidence free from substantial conflict. No objection was made to the testimony of Julius Chester until after it was all in, and then a motion was made to strike out a part of it on the ground that it was irrelevant and imma. terial. A motion to strike out on that ground ought not to be granted unless the evidence is clearly irrelevant and immaterial. The evidence which the court refused to strike out is not, in our opinion, clearly of that character. The court seems to have found the facts which the counsel for defendant sought to elicit from the witness Brundage, by questions to which objections were made by plaintiff's counsel and sustained by the court. It is therefore clear that if said rulings were erroneous, the defendant was not prejudiced thereby. The practice of filing but one undertaking where appeals are taken, as in this case, both from the judgment and order denying a new trial, is about as well settled as any question of that kind can be, and we do not think that it should now be treated as an open one. Judgment and order affirmed.

Hearing in bank denied.

(17 Nev. 25)

ROSE et al. v. RICHMOND MIN Co. OF NEVADA. (No. 1,082.)1

(Supreme Court of Nevada. Jan. Term, 1882.) RECORD ON APPEAL ASSIGNMENT OF ERRORSMINING CLAIMS-CONTESTS-LOCATION-APPEARANCE-DOCKET FEES-PATENTS.

1. Where a judgment is appealed from on the sole ground that it is not supported by the findings of facts, it is not necessary that the statement on appeal should contain the evidence.

2. Where the conclusions of law based on the findings of fact are specifically excepted to and assigned as errors, a general statement that the judgment is not supported by the findings is unnecessary, under Civil Prac. Act Nev. § 332, (1 Comp. Laws, § 1393,) requiring the errors relied on to be specified.

3. Under Comp. Laws Nev. § 1674, (St. 1873, p. 50,) providing that in actions to determine the right of possession of a mining claim, where an application for a patent has been made to the United States by either of the parties, it shall only be necessary to confer jurisdiction on the court to try the action that it appear that an application for a patent has been made, and that the parties to the action are claiming the mine, a complaint alleging that plaintiffs are the owners and possessed of the mine in controversy, and that defendant adversely claims the mine and right of possession, and has filed an application for a patent, is sufficient, as it need not allege that plaintiffs contested defendant's application, nor that such application is void.

4. Where the clerk advances the docket fee and places the case upon the docket, defendant cannot object that the fee was not paid in advance by plaintiffs, as required by 2 Comp. Laws Nev. 8 2766, 2767.

5. Defendant waives the issuance of summons by appearing and filing a demurrer and

answer.

6. It cannot be objected in the suit to deter

This case, filed January term, 1882, is now published by request, with others, in order that the Pacific Reporter may cover all cases in volume 17, Nevada Reports.

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mine the right of possession of a mining claim that plaintiffs' protest to defendant's application for a patent does not show "the nature, boundaries, and extent" of plaintiffs' location. Such objection should have been made in the landoffice when the protest was filed.

7. Where both plaintiff and defendant are in possession of different portions of the same lode, plaintiff can, under section 1674, supra, maintain an action to determine the right of possession to the entire lode.

8. Under 14 St. U. S. p. 252, § 4, providing "that no location shall exceed 200 feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode," a location is not wholly void because the locator claims in good faith a discovery interest, when in fact the same lode had previously been located on by others at another point. It is voidable only as to the excess of the discovery interest.

9. Under Rev. St. U. S. § 2326, providing that, where an adverse claim is filed during the period of publication of an application for a patent to a mining claim, all proceedings shall be stayed till the controversy shall have been settled by a court of competent jurisdiction, and that a failure on the part of the claimant to prosecute his suit in the proper court with dili gence to final judgment shall be a waiver of his claim, a patent issued after the filing of such adverse claim and the institution of the suit, but before final judgment, is void, though the clerk of the court in which the suit is pending certifies that no proceedings have been had therein for three years. The court, and not the land department, has jurisdiction to determine the question of due diligence in the prosecution of the suit.

10. Where a claimant protests, as required by Rev. St. U. S. § 2326, against the issuance of a patent to a certain lode, on the ground that he has a valid prior location of the same lode, he is not bound to protest against a second application by the same party under a different name for a patent to the same lode, and a patent granted upon such second application is void.

11. Where a patent is issued without any authority of law, its validity may be attacked in any proceeding.

12. Where a patent is absolutely void, its holder cannot be adjudged to hold it in trust for the party entitled to the land. It is of no effect whatever.

Appeal from district court, Eureka county.

Suit by E. H. Rose and others against the Richmond Mining Company of Nevada, to determine the right of possession and ownership to a mining claim. Judg. ment for defendant. Plaintiffs appeal. Reversed.

Baker & Wines, William M. Stewart, W illiam F. Herrin, and W. S. Wood, for appellants. Robert M. Clark, Wren & Cheney, and Crittenden Thornton, for respondent.

HAWLEY, J. This action was brought by appellants to determine the right of possession to certain mining ground. The cause was tried before the court without a jury. A judgment was rendered in favor of respondent. No motion for a new trial was made. The appeal is taken from the judgment. Appellants claim that upon the facts found by the court the judgment should have been in their favor. The following diagram shows the relative positions of the Tip Top, St. George, and Victoria locations, relied upon by respondent, and of the Uncle Sam location, upon which appellants rely:

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From the findings of the court it appears | that the mining ground in controversy is situated on Ruby hill, in the Eureka mining district; "that along and through the hill, for a distance slightly exceeding a mile, and extending in a north-westerly and south-easterly direction, is a zone of limestone, in which at different places throughout its length mineral is found;" that underlying this zone on the southerly side is a well-defined, unbroken foot-wall of quartzite, which has a general dip to the north-east; that on the northerly side of this zone of limestone is a hanging-wall of shale; and that this zone of limestone

is a vein or lode of rock in place, bearing gold, silver, lead, and other valuable minerals; that the Uncle Sam mining claim was located upon this zone of limestone on the 14th day of January, A. D. 1872, by E. H. Rose and two other persons; that they included in said location 800 linear feet of said zone, 200 linear feet having been located for a discovery claim; that they recorded the notice of location in due time, and marked the boundaries of the claim before the St. George was located; that several years prior to the location of the Uncle Sam claim said zone had been discovered, and a large number of mining

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claims located upon it; that Rose knew of the existence of said locations, and that work was being prosecuted thereon; that at the time of the location of the Uncle Sam, and for a long time prior and subsequent thereto, it had been the custom and usage of the larger portion of the miners upon this zone or lode to include in their locations 200 feet for a discovery claim; that it was not known or believed at the time of the location of the Uncle Sam that the belt or zone of limestone running through Ruby hill constituted but one zone or lode; that the locators of the Uncle Sam believed there was no other valid existing location upon the ground included within the surface boundaries of their location; that a mining claim called the "Phillips" was located on the 23d day of September, A. D. 1871, by Phillips and others, upon the identical ground afterwards located by the Uncle Sam; that the Phillips claim and location was abandoned prior to the location of the Uncle Sam; that Rose, prior to the location of the Phillips, had discovered the ore within the limits of the Uncle Sam location; "that Rose and his associates made the Uncle Sam location in good faith, and in accordance with the customs and usages of the majority of the miners in said mining district, and they and their grantees have ever since remained in the actual possession of said Uncle Sam location as located, to the extent of annually sinking a shaft thereon, maintaining, and at times occupying, a cabin thereon, and excavating drifts and tunnels thereon; * that Rose and his co-locators did the amount of work required to hold said mining claim under the laws of the United States, and their successors in interest continued to do the necessary work to hold said claim after succeeding to the interest of Rose and his co-locators up to the time of this trial;" that none of said work was done within the surface limits of the St. George, but was done within the surface lines of the Uncle Sam location; that the St. George claim was located on the 20th day of March, 1873, subsequent to the location of the Uncle Sam; "that from and after the date of the location and discovery of the St. George mining claim and lode herein, the Richmond Min

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ing Company of Nevada has been actually in possession of the said lode, as in the said patent described, and has been engaged in mining and extracting the precious metals therefrom, and *** in sinking winzes and running drifts, tunnels, and levels at a great depth below the surface of the earth, and none of the excavations made by either party came in conflict with any of those made by the other;" that respondent, on the 1st day of August, 1873, made an application, through the local United States land-office at Eureka, for a patent to the St. George mining claim; that on the 29th day of September, 1873, and within the period allowed by law for publication of notice, Rose and his associates filed a protest in said land-office, which showed the boundaries and extent of their claim, against said application; that on the 21st day of October, 1873, they filed the

complaint in this action in the office of the clerk of the district court of Eureka connty; that at that time they did not pay the docket fee required by the statute of this state, (2 Comp. Laws. § 2766;) that the docket fee was advanced and paid by the clerk to the county treasurer, in his regular monthly settlement, on the 3d day of November; that respondent regularly appeared in said action, and filed a demurrer and answer; that it did not at any time move to dismiss said action or file a plea in abatement therein; that after said cause was at issue it was regularly placed upon the calendar for trial; that thereafter it remained on the calendar until the March term, 1874, but was not tried, for the reasons that negotiations were pending for a settlement of the mat. ters in controversy; that at the March term, 1874, the cause was continued upon motion of counsel for respondent, and thereafter the cause was not placed upon the calendar, nor any proceedings had, until the March term, 1880; that negotiations for a settlement were still pending, and Rose and his associates were led to believe from representations made to them by the officers and agents of the Richmond Mining Company that it would abandon all claim to that portion of the Uncle Sam west of the west end line of the Tip Top claim, or that it would purchase the Uncle Sam claim, and it was owing to *hese facts that the prosecution of the suit was delayed; that in the month of September, A. D. 1876, the Richmond Mining Company made application to the landoffice at Eureka for final entry and payment for the St. George claim, and presented a certificate of the clerk of the district court to the effect that this action had not been placed upon the calendar, nor had any proceedings been had therein, after the March term, 1874; that the officers of the land department upon this certificate decided that this action had not been prosecuted with due diligence, and for this reason that the Richmond Company was entitled to a patent; that these proceedings were had without notice to plaintiffs, and at a time when they and their attorneys believed from the representations made by the officers and agents of the Richmond Company, as before stated, that a settlement would be agreed upon, and that there was no necessity for a trial; that the ruling of the officers of the land-office at Eureka was approved by the commissioner of the general landoffice at Washington, D. C.; that plaintiffs were notified of his decision, and informed that they would have 60 days within which to appeal from the decision of the secretary of the interior; that they did not take any steps in the matter, and did not appeal from the decision; that thereafter. on the 7th day of May, 1877, the government of the United States issued a patent to the St. George claim and lode to the respondent; that on the 30th day of April, 1874, the government of the United States issued to the respondent a patent to the Tip Top claim and lode; that on the 18th day of October, 1878, the respondent made an application for a patent to the Victoria claim, which had

been located subsequent to the location of the Uncle Sam, and procured a patent therefor from the United States on the 28th day of February, 1880; that no protest was filed against said application by the owners of the Uncle Sam claim; that the Tip Top, St. George, Victoria, and the Uncle Sam claim are each upon the same vein or lode; that at the time of the trial of this action the Albion Consolidated Mining Company was the owner of the Uncle Sam claim, and this action is prosecuted for its benefit by the consent of the plaintiffs.

All that portion of the mining ground, within the limits of the Uncle Sam location, on the easterly side of the line A Con the diagram, belongs to the respondent by virtue of the Tip Top location and patent. We have been thus particular in stating the facts, in order that some of the questions which we will have occasion to discuss may be the more clearly comprehended. The real controversy upon this appeal involves the validity of the Uncle Sam location, owned by appellants, and of the St. George and Victoria locations and patents, owned by respondent. There are, however, numerous preliminary questions to be first disposed of. The case upon every point fairly bristles with legal and techinical objections, urged by respondent. If any of the objections are well taken, the judgment should be affirmed. If none of them are tenable, the judgment must be reversed. The various questions presented have been elaborately argued, with marked ability. From the interest thus . manifested, as well as the importance of some of the questions involved, and the peculiar facts of the case, we deem it to be our duty to decide all the points that have been made; but in so doing we shall not attempt to answer all the reasons advanced by counsel. It is enough to state our opinion upon the points discussed, and to give the reason for our decision thereon.

should have been for appellants;" yet such is the evident meaning and effect of the language used. We believe it has been the usual practice, in cases like this, to mate the general statement that the judgment is not supported by the findings, and to add a specific statement of" the particular errors" relied upon. But the general statement, the absence of which it is claimed is fatal without the particular specifications, would, according to many of the authorities cited by respondent, be insufficient. It must be remembered that no objections are urged as to the sufficiency of the findings. They are not complained of by either party, but are accepted as correct by both, and must be so treated by this court. The only grounds, therefore, that could have been assigned as error were the alleged erroneous conclusions of law reached by the court upon the undisputed facts set forth in the findings. Every conclusion of law of which complaint is made is separately specified as an error upon the part of the court. The form of the specifications may be subject to criticism, but the substance is there. Appellants have pointed out with great distinctness the specific errors which they claim the court committed in its conclusions of law, in such a manner as to enable this court to readily understand the grounds upon which they rely for a reversal. The specifications are given “with such fullness as to aid the court in the examination of the transcript;" and this court is not left, as was the court in Squires v. Foorman, 10 Cal. 298, and other cases cited by respondent, "to grope its way through the record in search of pos sible errors. The statement on appeal and the assignment of errors come within the rule announced by the decisions in Barrett v. Tewksbury, 15 Cal. 356, and Hutton v. Reed, 25 Cal. 478; and this court has never, in any of its decisions, suggested that any further specification was necessary.

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3. Respondent contends that the complaint does not state facts sufficient to constitute a cause of action. In deciding this question it is important to determine the nature of this action, for upon the character of the pleadings-especially of the complaint-depends the solution of many questions that have been elaborate

1. It is claimed by respondent that the statement on appeal is defective, because it does not contain any evidence, or specify any error which occurred at the trial. This objection is without merit. No question is raised by appellants as to the sufficiency of the evidence to support the findings of act. They do not rely upon any alleged error committed by the court dur-ly and learnedly argued by counsel. The ing the progress of the trial. The statement does contain some, if not all, of the documentary evidence, and it was unnecessary to insert any more of the evidence taken at the trial in order "to explain the particular errors or grounds specified" in the statement on appeal. The statement is sufficient to authorize this court to determine whether the findings of facts sup port the judgment of the district court, provided there is a proper specification of errors, as required by section 332 of the civil practice act, (1 Comp. Laws, § 1393.)

2. We are of the opinion that this provision of the statute has been substantial. ly complied with. It is true, as claimed by respondent, that in the assignment of errors it is not said in direct terms "that the judgment is contrary to the findings, or that, upon the findings, the judgment

complaint alleges "that the plaintiffs are, and ever since the 20th day of January, A. D. 1872, bave been, the owners of, seised and possessed of," the mining ground in controversy," together with all the veins, lodes, and ledges throughout their entire depth, the top or apex of which lies within said surface boundaries; that defendant, unjustly and adversely to plaintiffs, claims an estate in fee, in and to said premises, and the right of possession thereof, and the right of extracting and converting to its own use all the mineral bearing rock, ore, and earth therein contained, and has filed in the United States land office an application for a patent thereto, under the name of 'St. George Ledge and Mine;"" and closes with the usual prayer. We will not follow counsel in that portion of their argument which is

based upon the theory that this is a suit brought under the provisions of section 256 of the civil practice act. In our opinion, the sufficiency of the complaint must be determined by the provisions of section 1674 of the Compiled Laws (St. 1873, p. 50) and section 39 of the civil practice act. Section 1674 reads as follows: "In all actions brought to determine the right of possession of a mining claim or metalliferous vein or lode, where an application has been made to the proper offiers of the government of the United States, by either of the parties to such action, for a patent for said mining claim, vein, or lode, it shall only be necessary, to confer jurisdiction on the court to try said action, and render a proper judgment therein, that it appear that an application for a patent for such mining claim, vein, or lode has been made, and that the parties to said action are claiming such mining claim, vein, or lode, or some part thereof, or the right of possession thereof." The objections to the complaint, under section 1674, are stated as follows: "There is no allegation that the claim or application of the defendant for a patent is without right, or invalid, or void, or that the plaintiffs ever filed any adverse claim to the defendant's application for a patent. It does not appear from the complaint that any contest ever was initiated or was pending in the land-office at the date of the commencement of this action." The complaint is not defective, either under section 256 or section 1674, because it does not allege the particulars of defendant's claim, and prove that it was invalid. Mining Co. v. Marsano, 10 Nev. 379; Golden Fleece G. & S. Min. Co. v. Cable Con. G. & S. Min. Co., 12 Nev. 320. In the case last cited, BEATTY, J., in delivering the opinion of the court, said: "A review of the question is, however, wholly unnecessary in this case, which is governed by the provisions of section 1674 of the Compiled Laws, and evidently designed to supplement section 2326 of the Revised Statutes of the United States. *** Under these laws the pendency of a contest in the land-office, with respect to a mining claim, gives our district courts jurisdiction to determine the right of possession as between the adverse claimants. The contestant, whether he is in or out of possession, must commence his action to determine the right within thirty days after filing his adverse claim. It would be absurd to hold that, if he happens to be the party in possession, and therefore presumably entitled to the possession, judgment must go against him, in favor of a party out of possession, unless he not only proves his own right affirmatively, but disproves the claim of the defendant by negative testimony. The only sensible construction of the law is that each party must prove his claim to the premises in dispute, and that the better claim must prevail." It is claimed that this decision is in favor of the respondent upon the point that the pendency of the contest in the land office must be alleged. The complaint in that action averred that plaintiff had filed an adverse claim to the defendant's application for a patent; hence the statement in the opinion that

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the pendency of the contest in the landoffice gave the court jurisdiction, which is true; but the question here involved was not presented in that case, and the court did not decide that such an allegation was absolutely essential in order to give the court jurisdiction. Section 1674 does not make the filing of the protest a jurisdictional fact to be alleged in the complaint, and in this respect it differs from the statute considered by the court in Berry v. Cammet, 44 Cal. 352, which is also relied upon by respondent. It has, we believe, been the general practice in this state, in suits of this character, to allege the pendency of the contest in the land-office; and the act of congress (Rev. St. § 2326) has reference to cases where an adverse claim is filed, but it does not attempt to confer any special jurisdiction upon the state courts. In 420 Min. Co. v. Bullion Min. Co., 9 Nev. 248, we said: "Congress did not, by the passage of this act, * confer any additional jurisdiction upon the state courts. The object of the law, as we understand it, was to require parties protesting against the issuance of a patent to go into the state courts of competent jurisdiction, and institute such proceedings as they might, under the different forms of action therein allowed, elect, and there try the rights of possession to such claim, and have the question determined. The acts of congress do not attempt to confer auy jurisdiction not already possessed by the state courts, nor to prescribe a different form of action. We are of opinion that when the action is brought, whatever may be its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes, that apply to such actions in our state courts, irrespective of the acts of congress." Section 1674 was evidently passed to supplement the act of congress, as stated in the Golden Fleece Case; and it designates the jurisdictional facts that are necessary to be alleged in the complaint. The complaint in this action sub. stantially conforms to the language of the statute, and we are of opinion that, tested by the statute and the previous decisions of this court, it states facts sufficient to constitute a cause of action to determine the right of possession to the mining ground in controversy.

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4. The claim of respondent that this action was not commenced in time is not well taken. The complaint was filed within 30 days after the fling of the protest, as required by the statute. It is true that the plaintiffs did not pay the docket fee, (2 Comp. Laws, §§ 2766, 2767,) but it was advanced and paid by the clerk in his next regular monthly settlement with the county treasurer. The findings are silent as to whether any summons was issued or not. They show, however, that the defendant regularly appeared and filed a demurrer and answer to plaintiffs' complaint, and did not at any time move to dismiss the action or file a plea in abatement. From these facts it is apparent that it cannot now be claimed that the action was not commenced in time. The defendant, by demurring and answering, waived the issuance of summons. 1 Comp. Laws, § 1085;

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