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Gibson v. Hjul

December 31, 1910

ANGUS R. GIBSON AND W. C. STEWART, PLAINTIFFS, V. P. H. HJUL, ADMINISTRATOR OF THE ESTATE OF JOHN PARDY, DECEASED, AND J. H. BYERLY, RESPONDENTS. (HENRY K. MITCHELL, INTERVENOR AND APPELLANT.)


Appeal from the District Court of the Third Judicial District, of the State of Nevada, Eureka County; Peter Breen, Judge.

Henry K. Mitchell, in pro. per., for Appellant.

Cheney, Massey & Price, and C. L. Harwood, for Respondent.

By the Court, Norcross, C. J.:

This action concerns the title to a certain piece of mining ground on Prospect Mountain in the Eureka Mining District, Eureka County, Nevada. The ground in question appears to have been embraced within the several mining claims following, named in the order of their location: Grindstone, Sam Tilden, Beehive, and Fannie. Plaintiffs instituted this action October 13, 1906, basing their right to recover upon the Fannie location. Prior to making this last-named location, the plaintiffs had been lessees of the said John Pardy, deceased, who was an original defendant, and who died subsequent to the rendition of judgment in the action. Plaintiffs based their right to recover upon the Fannie location upon the theory that the Beehive location was void because of the fact that its locator, the said John Pardy, was at the time of making the location a deputy United States mineral surveyor. After the defendants had filed their answer to plaintiffs' complaint, proceedings were suspended in the court below for the reason that the question of the right of a deputy mineral surveyor to locate a mining claim was then pending in this court in the case of Hand v. Cook, 29 Nev. 518. The decision of this court in the Hand v. Cook case, supra, having been adverse to plaintiffs' contention, plaintiffs appeared in court in person and dismissed their complaint. Prior to the dismissal of the complaint, Henry K. Mitchell, who had been the attorney for the plaintiffs, was granted permission to intervene and filed a complaint in intervention, claiming title to the ground in controversy by virtue of a deed, dated March 15, 1907, for the Sam Tilden claim from one Maurice Hartnett. The defendants' objection to the right of the said Henry K. Mitchell to

[32 Nev. 360, Page 368]

intervene in the action having been overruled, defendants filed an answer and subsequently an amended answer to the said intervenor's complaint in intervention.

The case was tried upon the issues raised upon the complaint in intervention and the amended answer thereto. The defendant J. H. byerly having no interest in the controversy other than that of lessee of the defendant John Pardy, and his lease having expired prior to the entry of judgment in the case, judgment was entered in favor of the defendant Pardy. The Sam Tilden location was made by the said Maurice Hartnett March 9, 1889. The Beehive location was made by the defendant Pardy July 27, 1899, and covers the major portion of the Sam Tilden claim. These two locations are the only ones directly involved in the action. The issues as made by the defendants were a denial of the allegations of the intervenor; the allegation of the location of the Beehive; the possession thereunder continuously from the time of such location; that such possession was open, adverse, and notorious; the forfeiture of the Sam Tilden claim; and, also, a special plea of the statute of limitations of both two and five years. The case was tried by the court; but the court, deeming certain equitable features to be involved in the case, impaneled a jury in an advisory capacity. General and special issues were submitted to the jury, which were found in favor of the defendant Pardy. The findings were adopted by the court, and a decision and judgment entered in favor of said defendant. From the judgment, and from an order denying the intervenor's motion for a new trial, the intervenor has appealed.

The motion for new trial was based upon the grounds: (1) Insufficiency of the evidence to justify the decision of the court, and that such decision is contrary to the evidence, and that the same is against law. (2) Errors in law occurring at the trial and excepted to by the intervenor.

A preliminary question is raised by counsel for respondents which goes to the jurisdiction of the lower court to entertain the complaint in intervention. We need not, we think, determine whether the intervenor had such an interest in the result of the suit between the original plaintiffs and defendants as would entitle him to intervene, or whether the situation pre

[32 Nev. 360, Page 369]

sented at that time falls within the rule laid down in the case of Harlan v. Eureka Mining Co., 10 Nev. 92, as contended. Had the plaintiffs remained in the suit and the issues raised upon the plaintiffs' complaint and the defendants' answer been tried and determined, the position of counsel for respondents might be correct. After the plaintiffs dismissed their complaint, the case went to trial between the intervenor and the defendants upon the issues raised by their respective pleadings. The intervenor became virtually the plaintiff in the case. At the time the plaintiffs dismissed the complaint, defendants did not ask to have the entire proceedings dismissed, but, without further objection, proceeded to trial upon the issues raised by their answer to the intervenor's complaint. We think, under the state of facts, the court had jurisdiction of the parties as well as the subject-matter.

The statement on motion for new trial presents nine assignments of error, which we will consider in order.

Error is assigned in admitting in evidence the laws or regulations of the Eureka Mining District. These regulations were offered in evidence in support of defendants' objection to the admission in evidence of the notice of location of the Sam Tilden claim; defendants contending that such notice was not in accordance with the district regulations. The objection to the admission of the notice in evidence was overruled and the notice admitted. Even conceding, for the purposes of this case, that those regulations were erroneously admitted, appellant was in no way injured thereby.

Error is assigned in the ruling of the court excluding as evidence a certain notice recorded by the said Maurice Hartnett, December 19, 1893, in the office of the county recorder of Eureka County, which notice was filed in pursuance of the act of Congress relieving locators from the necessity of doing annual labor for the year 1893. This notice was offered for the purpose of proving an act of ownership upon the part of intervenor's grantor at the time of filing such notice. As this notice was filed nearly six years prior to the date of the initiation of defendants' claim, and as they have not questioned the ownership of the Sam Tilden claim by intervenor's grantor prior to the date of the location of the Beehive claim,

[32 Nev. 360, Page 370]

we are unable to see wherein this proposed evidence was material and wherein its rejection could ...


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