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Nelson v. Smith

December 31, 1918

J. P. NELSON AND J. H. COOKE, RESPONDENTS, V. CHRIS SMITH AND JAMES SPARGUER, APPELLANTS.


Appeal from Eighth Judicial District Court, Mineral County; J. Emmett Walsh, Judge.

Wm. Forman and T. L. Foley, for Appellants.

Withers & Withers, for Respondents.

By the Court, Sanders, J.:

There are two appeals in this case included in the one notice taken by the defendants. One is from the judgment, and the other from the order denying the defendants' motion for a new trial.

[42 Nev. 302, Page 309]

Upon the case being called for argument in this court, counsel for respondents, upon notice previously given, moved the court to dismiss both appeals, upon the ground that neither had been taken within the time required by law.

Section 5329 of the Revised Laws provides, inter alia, that an appeal may be taken from a final judgment in an action within six months after the rendition of the judgment; that an appeal from an order refusing or granting a new trial may be taken within sixty days after the order has been made and entered in the case.

1. It affirmatively appears from the record that the judgment in this case was rendered on the 25th of November, 1915, and that the appeal therefrom was taken on the 9th of July, 1917, a period of more than nineteen months after the rendition of the judgment. The motion to dismiss the appeal from the judgment is therefore granted. Central T. Co. v. Holmes Co., 30 Nev. 437, 97 Pac. 390; Ward v. Silver Peak, 37 Nev. 470, 143 Pac. 119.

2. It also affirmatively appears from the record that the order refusing a new trial was made and entered in the minutes of the court on the 10th day of May, 1917. The appeal from the said order was taken on the 9th of July, 1917, within sixty days after the entry of the order in the minutes of the court. Clearly, the time for taking an appeal from an order refusing or granting a motion for a new trial begins to run from the date of the entry of the order in the minutes of the court, and not from the date of the filing of a decision upon the merits of the motion. The motion to dismiss the appeal from the order denying a new trial is denied.

This action was commenced in the district court of Mineral County for the double purpose of quieting the plaintiffs' title to a group of lode mining claims situate in the Bell mining district, described in the complaint as the Royal George group, consisting of the Royal George, Royal Georges Nos. 2, 3, 4, 5, 6, 7, 8, and the Royal George Protector, and to enjoin defendants from perfecting or attempting to perfect a mining location

[42 Nev. 302, Page 310]

upon and over the premises, or any part thereof, and to restrain the defendants from mining or extracting ore from the plaintiffs' discovery. It developed, however, from the subsequent pleadings, as well as from the admission of counsel, that the real controversy in the case relates to the possession, or right to the possession, of 262 feet of valuable mining ground included within the exterior boundaries of the plaintiffs' alleged Royal George No. 4 and Royal George Protector locations, and the defendants' alleged superior right thereto in virtue of their alleged Gilt Edge Fraction lode mining claim. The issues were submitted to a jury and a general verdict returned in favor of the plaintiffs in this language: “We, the jury, find the issues joined in this case in favor of the plaintiffs.” The trial court evidently considered this verdict, informal as it was, as binding upon the court, and adopted the verdict as a finding of fact without any further or additional findings, and as conclusions of law the court found:

“That as against the defendants the plaintiffs are the owners, in the possession, and entitled to the possession, of all ground claimed by the defendants as their alleged Gilt Edge Fraction lode mining claim, being the whole thereof which is in conflict with and overlaps the plaintiffs' said Royal George No. 4 mining claim and Royal George Protector mining claim, and that the defendants have not, nor has either of them, any right, title, or interest in or to any ground included within the exterior boundaries of said Royal George No. 4 mining claim, or said Royal George Protector lode mining claim, and that their alleged Gilt Edge Fraction lode mining claim is not a valid, subsisting lode mining location made upon the unappropriated public domain of the United States, and that the defendants acquired no rights whatever by their asserted location of said alleged Gilt Edge Fraction lode mining claim, and that all rights asserted by the defendants in this action adverse to the plaintiffs are wholly void and of no effect.”

And further found that the plaintiffs were entitled to the injunctive relief demanded by their complaint, and

[42 Nev. 302, Page 311]

ordered judgment and decree to be entered accordingly. Before proceeding further with the discussion we will dispose of a preliminary motion made by the appellants in the course of the trial.

3. Upon the calling of the case for trial in the district court, one of counsel for plaintiffs requested of the court that the name of George S. Green, Esq., be entered of record as attorney for plaintiffs. This request was met by a motion on the part of defendants' counsel for an order barring the said Green, or the firm of Mack & Green, of which he was then a member, from appearing as attorney for plaintiffs, upon the ground that said George S. Green and the said firm of Mack & Green had been hired previously to act as attorneys for the defendants in this cause. Evidence, both oral and documentary, was adduced in support of and against the granting of the motion. The court denied the motion. This ruling constitutes one of the principal assignments of error relied upon by the defendants in support of their motion for a new trial. The question being one purely of fact, and decided by the trial court upon conflicting testimony, we are not authorized to disturb the ruling. Furthermore, we are not prepared to say that the court abused its discretion in denying the motion.

The purely legal questions involved in this appeal relate to the validity of lode mining claim locations under the act of Congress of May 10, 1872, c. 152, secs. 2, 5, 17, Stat. 91, 92 (U. S. Comp. St. 1916, secs. 4615, 4620), that provides, inter alia, that a mining claim “may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode.” “The location must be distinctly marked on the ground, so that its boundaries can be readily traced.”

4. The briefs are devoted largely to an able and extended discussion of the effect of our local law (Rev. Laws, 2422) upon a lode mining claim that as staked or monumented covers more ground than called for in the notice of location posted at the point of discovery, and includes more of the vein than ...


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