Appeal from the Fifth Judicial District Court, Nye County; M. R. Averill, Judge.
John R. Smith and S. L. Carpenter, for Appellant.
Thomas, Bryant, Nye & Malburn and Bartlett & Thatcher, for Respondent.
By the Court, Norcross, J.:
This is a suit brought under the provisions of section 2326, U. S. Revised Statutes (U. S. Comp. St. 1901, p. 1430; Rev. Laws, 2384), upon an adverse claim and protest filed in the United States Land Office at Carson City, (Diagram) Nevada, against the application of the respondent for a patent to the three mining claims named Indiana No. 1, Indiana No. 2, and Indiana No. 3, embraced in survey No. 3,654. Respondent, as plaintiff in the court below, alleged ownership of the Conservative claim, embraced in survey No. 3,201, and that the same was located prior
to any of the said Indiana claims, and that respondent is entitled to the area in conflict between the said Indiana claims and the said Conservative claim. An answer was filed putting in issue the material allegations of the complaint. A diagram accompanying appellant's brief is inserted (p. 162) showing substantially the area in controversy, only that portion of which shown in black is now questioned on this appeal by appellant.
The court below found the facts of the case as follows:
FirstThat the Conservative lode mining claim was duly located under the laws of the State of Nevada and the United States on the 23d day of January, A. D. 1905, and since that time has been maintained as a valid location under said laws.
SecondThat the Indiana No. 1 lode mining claim was duly located under the laws of the State of Nevada and the United States on or about the 17th day of February, A. D. 1905, and has been maintained as a mining location from that time to the present.
ThirdThat, as originally located, the Indiana No. 1 lode mining claim lay about 100 feet west of its present position as shown by its patent survey.
FourthThat, before the boundaries of the Indiana No. 1 were defined by stone monuments, the south boundary of the Conservative lode mining claim had been defined by two stone monuments, one at its southwest corner about 79 feet north of its present southwest patent post, and the other at a point south 17 degrees 41 minutes west 151 feet slope measurement from post No. 3, survey 3,049, K. K. No. 1 Lode.
FifthThat, before the boundaries of the Indiana No. 1 were defined as shown by its patent survey, the boundaries of the Conservative had been defined by posts set very nearly in the positions the posts of its patent survey now occupy.
SixthThat the Indiana No. 2 claim in its present status is junior to the Conservative claim as defined by its ...