Appeal from the Seventh Judicial District Court, Esmeralda County; Theron Stevens, Judge.
R. G. Withers, and Dickson, Ellis, Ellis & Schulder, for Appellants.
Curtis H. Lindley, Detch & Carney, Wm. E. Colby, Grant H. Smith, and McIntosh & Cooke, for Respondents.
McIntosh & Cooke, for Respondents, in reply to the petition for rehearing.
This is an appeal from a judgment in favor of the respondents in an action to quiet title in the plaintiff, appellant herein, to the Los Gazabo lode mining claim.
The Round Mountain Red Top Mining Company and John F. Davidson, defendants in the court below, are not affected by the questions raised by the appeal in this case. The complaint, among other matters, alleges: That, under and by virtue of a patent from the United States therefor, the plaintiff is the owner, and for a long time past has been and now is in the possession and entitled to the possession of the Los Gazabo lode mining claim and location, Survey No. 2,815, in said Round Mountain or Jefferson mining district; and said Los Gazabo location has parallel end lines, and it is described by metes and bounds as follows: [Here follows the description.] That said Los Gazabo lode or vein so far departs from a perpendicular on its dip and on its downward course into the earth, and within vertical planes drawn downward through the end lines of said Los Gazabo location, so continued in their own direction, as that it extends outside of the vertical side lines of said Los Gazabo location on the surface, and into, through, and across the underground portion of certain lands claimed by the defendants as being the Gold Leaf and the Black Hawk so-called lode mining locations, and as being the property of the defendants.
The defendant, the Round Mountain Sphinx Mining Company, respondent herein, in its amended answer denied the validity of the said Los Gazabo lode mining claim, and alleged that said Los Gazabo claim was located entirely within the surface boundaries of certain prior existing mining claims known as and called the Sunnyside No. 1, Sunnyside No. 2, Sunnyside Fraction, and Sunnyside No. 3 lode mining claims. And as a further answer defendant alleged: That it is the owner of, possessed of, and entitled to, the possession of that certain lode mining claim called the Gold Leaf lode, situate in the Round Mountain or Jefferson mining district, county of Nye, State of Nevada, and more particularly described as follows: [Here follows description of claim.] That within the exterior boundaries of
said Gold Leaf claim there is disclosed in the discovery a lode, vein, or ledge, * * * the general course or strike of the top or apex of which is northerly and southerly, said lode, vein, or ledge entering the southerly end line and running parallel to the side line thereof, passing out of the northerly end line of said claim; that said Gold Leaf lode, vein, or ledge on its dip from the apex extends to, beneath, and beyond the northeasterly side line of said claim, and the defendant Round Mountain Sphinx Mining Company is the owner of said vein
within vertical planes drawn downward through the end lines of said claim extended in their own direction indefinitely, and includes the vein claimed by plaintiff as the pretended Los Gazabo veins.
The diagram (see p. 414) shows the relative locations of the Sunnyside claims, the Los Gazabo claim, and the Gold Leaf claim, the ledge and its dip, ...