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Love v. Mt. Oddie United M. Co.

December 31, 1919

FRANK LOVE AND MARTIN EVENSEN, RESPONDENTS, V. MT. ODDIE UNITED MINES COMPANY (A CORPORATION), APPELLANT.


Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

H. R. Cooke, for Appellant.

Norcross, Thatcher & Woodburn, for Respondent.

By the Court, Coleman, C. J.:

This is an action to quiet title to certain mining claims. Judgment was rendered in favor of the plaintiffs, from which, and from an order denying motion for a new trial, an appeal has been taken.

Counsel for respondent object to our considering the merits of the case, for the reason that the bill of exceptions does not contain all of the evidence material and essential to a correct determination thereof.

[43 Nev. 61, Page 64]

Before proceeding further, it may not be out of place to say that at different stages of the proceedings in the lower court, including the preparation of the record upon this appeal, three attorneys who are not now connected with the case participated at different times in its management.

We think the objection urged to a consideration of the case upon its merits is well taken. The bill of exceptions contains only about 1 1/2 typewritten pages of the direct testimony of the witness Love, who testified on behalf of plaintiffs, and is confined solely to that portion of his testimony showing his experience as a prospector and miner. It does not contain one word of testimony given by the witness mentioned on direct examination concerning the material and vital issue in the case, but it does contain about 25 pages of his cross-examination upon the vital issue. The bill of exceptions is in substantially the same condition as to the testimony of the witness Evensen.

Following the first 36 pages of the testimony contained in the so-called “statement on appeal and bill of exceptions” is found a statement by the court reporter as follows:

“I hereby certify that I am the duly appointed, qualified, and acting official reporter of the district court of the Fifth judicial district of the State of Nevada, in and for the county of Nye; that I acted as official reporter upon the trial of the above-named cause, and that at such trial I took verbatim shorthand notes of all testimony and proceedings given and had; that the foregoing 36 pages constitute a partial transcription of said shorthand notes, and, so far as this particular portion of the testimony goes, is a correct statement thereof.”

On page 205 of the statement is found another certificate of the court reporter, which we quote:

“I hereby certify that I am the duly appointed, qualified and acting official reporter of the district court of the Fifth judicial district of the State of Nevada, in and for the county of Nye; and that I acted as such official

[43 Nev. 61, Page 65]

reporter upon the trial of the above-named cause, and that at such trial I took verbatim shorthand notes of all testimony and proceedings given and had; that the foregoing is a full, true, and correct transcription of certain designated testimony, and is in all respects a full, true, and correct statement of said designated testimony and proceedings given and had at such trial.”

The certificate of the trial judge is as follows:

“I, the undersigned, the judge who tried said action, do hereby certify that the foregoing statement on appeal and bill of exceptions has on due notice been settled and allowed by me, and the same is correct, and that it contains a full, true and correct transcription of all of the proceedings upon the trial of said cause and of all the evidence admitted at said trial (with the exception of documentary evidence) material and pertinent to the issue of whether the work on the Verner and on the New York claim was of such a character that the same tended to develop the adjoining claims and which were in controversy between plaintiffs and defendants in this case.”

It will be seen from the two certificates of the official reporter that the purported transcript is but a partial transcript of the evidence, while the certificate of the trial judge shows that the statement and bill of exceptions is a correct transcript of all of the evidence admitted at the trial and pertinent to the issues, with the exception of documentary evidence. We do not feel that it is necessary that we determine whether or not the bill of exceptions shows upon its face that all of the material evidence given on direct examination of the witnesses Love and Evensen is not embodied therein. We are clearly of the opinion, however, that the certificate of the trial judge does not show that all of the evidence material to the issue presented upon this appeal is contained in the bill of exceptions, as contended by counsel for appellant, who relies upon the rule laid down in the case of Bailey v. Papina, 20 Nev. 177, 19 Pac. 33. Eliminating from consideration the certificates

[43 Nev. 61, Page 66]

of the court reporter, which are not necessary at all, it appears from the certificate of the trial judge that documentary evidence material to the issues is not embodied in the statement and bill of exceptions. This being true, we cannot consider the evidence at all, and it must be presumed that the findings and judgment are supported by the evidence. Gammans v. Roussell, 14 Nev. 171; County of White Pine v. Herrick, 19 Nev. 311, 10 Pac. 215; Bailey v. Papina, 20 Nev. 177, 19 Pac. 33.

It may be asked: What documentary evidence could possibly exist which could have aided the trial court in arriving at a conclusion as to the real question of fact involved in the case? Of course, we need not determine that question, though we think it possible that there might have been reports of mining engineers, or signed statements impeaching the testimony of some, or all, of the witnesses who testified in behalf of appellant. Suffice is to say that, since it appears that there was documentary evidence material to the issue, which is not embodied in the bill of exceptions, we could only speculate as to its character and weight, which we are not called upon to do.

Since it is not contended that any error appears from the judgment roll, it follows that the judgment appealed from must be affirmed; and it is so ordered.

On Rehearing

By the Court, Coleman, C. J.:

This is an action to quiet title to a group of eight mining claims. The complaint is in the usual form. The case was tried before a jury. Verdict was rendered in favor of the plaintiffs for four of the claims. From an order denying a motion for a new trial and from the judgment, an appeal has been taken.

Prior to January, 1911, defendant was the undisputed owner of the ground in question consisting of a group of eight claims, under and by virtue of its location as mining claims and a compliance with the laws, rules, and regulations pertaining thereto. On July 25, 1913,

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plaintiffs, asserting that the labor for the year 1912 had not been done upon the claims by the defendant company, entered upon and located them. It is admitted by plaintiffs that the defendant company did enough work on one of the claims (the Verner) to constitute the labor upon said group, if such work can be considered, but contend that the work done at that point did not end to develop the group.

1. It is agreed between counsel that it is purely a question of fact as to whether or not the work done in the Verner shaft in 1912 so tended to improve the entire group of claims as to prevent a forfeiture thereof; and such is the law. Big Three M. & M. Co. v. Hamilton, 157 Cal. 130, 107 Pac. 304, 137 Am. St. Rep. 118.

2, 3. Before proceeding to consider the main question of the case, we will dispose of the error assigned to the giving of that portion of plaintiffs' instruction No. 4, wherein the court told the jury that where work is done upon one claim for the benefit of an entire group, it “must manifestly tend” to the development of all the claims in the group. It is a general rule that in equity cases a judgment will not be reversed because of an erroneous instruction. We might dispose of this phase of the question without saying more; but, in view of the fact that the learned trial judge in his written opinion holds that such is the law, and was evidently controlled by that view of the law in reaching his conclusion, we deem it proper to express our interpretation of the law for the guidance of the courts in the future.

The trial judge, in his written decision, cited section 630 of Lindley on Mines in support of his views. He no doubt accepted the statement of Mr. Lindley without having examined the authorities cited by that eminent author in support of the text, as was most natural, in view of the arduous labors incident to his position; and, while we entertain great deference for the views of Mr. Lindley, we cannot accept his statement of the law. We have examined the decisions of the various courts cited, and do not find that they support the author; nor do

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we see how such a view can be sustained. The word “manifest” means “evident to the senses; evident to the mind; obvious to the mind.” Webster's Int. Dict. The courts uniformly hold that annual labor may be done outside of a claim, or group of claims, upon a patented mining claim, or upon the public domain. Certainly work done outside of a claim, upon a patented mining claim, or upon the public domain, cannot be said to “manifestly” tend to develop such claims; but it is the universal rule that proof may be offered to show that such work was done for the purpose of developing such other claims, and that in fact it tends to develop them, and when so shown it complies with all requirements. If it were the rule that the work “must manifestly” tend to develop a group of claims, work done on the public domain could not count, as by no possible stretch of the imagination could it be said that such work would “manifestly” tend to develop such group, nor could proof cause it to “manifestly” so appear. The correct rule to apply to the situation here presented is declared by the Supreme Court of the United States in Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875, as follows:

“Labor and improvements, within the meaning of the statute, are deemed to have been had on a mining claim, whether it consists of one location or several, when the labor is performed or the improvements are made for its development, that is, to facilitate the extraction of the metals it may contain, though in fact such labor and improvements may be on ground which originally constituted only one of the locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for the turning of a stream, or the introduction of water, or where the improvement consists in the construction of a flume to carry off the debris or waste material.”

Whatever other courts may think or say, the law as laid down by the court mentioned upon this question is final, though, so far as ...


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