The facts sufficiently appear in the opinion. W. M. Davidson filed his application in the United States Land Office at Carson City for a patent to the Sleeper Mine, situated in Ferguson mining district, Lincoln county, and the plaintiff filed in said office a protest against the issuance of such patent and an adverse claim to that portion of the Sleeper Mine embraced within the boundaries of the Fraction Mine, claiming said Fraction Mine for himself and his alleged coöwners, George Nesbitt and A. Borth, as tenants in common.
This action was brought by the plaintiff against said W. M. Davidson, pursuant to section 2325 of the Revised Statutes of the United States and section 1900 of the General Statutes of Nevada, to determine the right of possession to the Fraction Mine.
The case was tried before the district court in and for said county without a jury. A judgment was given in favor of said plaintiff and his cotenants. A notice of motion for new trial was given and statement on motion made by W. M. Davidson, the defendant. Before said motion was heard, Delamar's Nevada Gold Mining Company was substituted for said Davidson as defendant. The motion was denied. The appeal is taken from the judgment and from the order denying a new trial. *Page 281
The notice of motion for new trial designates as grounds thereof: First — Insufficiency of the evidence to justify the judgment and that the judgment is against law. Second — Errors in law occurring at the trial and excepted to by the defendant. The court made no express findings. One of the specifications of error is that the judgment is not supported by the evidence. The inquiry then is presented: Is there substantial evidence to support the judgment?
The evidence shows that W. DeBeck, H. Stevens and A. Borth located the Fraction Mine on the 12th day of May, 1892, and that they performed all the acts required to make a valid location; that the Nesbitt Brothers and A. Borth did assessment work in each of the years 1895, 1896 and 1897 to the full amount required by law; that the Sleeper Mine was located on the 1st day of January, 1895, and the boundaries thereof take in the Fraction Mine; that no work was done on the Fraction Mine in either of the years 1893 and 1894, but that the Nesbitt Brothers in December of each of said years had a notice recorded in the county recorder's office where the original notice of the location of the Fraction Mine was filed, declaring their intention in good faith to hold and work said mine.
The plaintiff claimed that he and George Nesbitt, his brother, had acquired all the right, title, interest and claim of said W. DeBeck and H. Stevens in and to the Fraction Mine, and that they and A. Borth were the owners of said mine as tenants in common. In support of this claim he offered in evidence a judgment recovered by the Nesbitt Brothers against said W. DeBeck for $212 in the justice's court of Pioche township in Lincoln county, and a judgment recovered by them against said H. Stevens on the same day and in the same court for $160, together with all the records, papers and proceedings of said court in said cases, to the introduction of which counsel for defendant objected on several different grounds, and the court excluded them on the ground, in effect, that the record showed that the justice's court had not acquired jurisdiction over either defendant in either of said cases.
It appears that on the 15th day of July, 1893, the justice's court issued an execution on each of said judgments and *Page 282 specially deputed A. J. Denton, pursuant to the provisions of section 571 of the civil practice act, to serve the same; that on the 11th day of August next following, said special officer sold to the Nesbitt Brothers all the right, title and interest of said DeBeck and Stevens, respectively, in and to the Fraction Mine under and in pursuance of the commands of said executions; that on said last date said officer executed to the Nesbitt Brothers a certificate of said sales, respectively, and filed a duplicate copy thereof in the office of the county recorder on the 19th day of August, 1893; that on the 19th day of February, 1894, said officer executed to the Nesbitt Brothers deeds of conveyance of the said interest of DeBeck and Stevens, respectively, in said mine, no redemption having been made. The certificates and deeds were admitted in evidence, against the objections of the defendant, but for the purpose only of showing or as "tending to show color of title and adverse possession."
Counsel for appellant contends and his theory is, in effect, that said judgments being void, the certificates of sale and the deeds executed to the Nesbitt Brothers are void and do not tend to show color of title or adverse possession to said Fraction Mine; that all acts done by the Nesbitt Brothers with reference to said mine are nugatory and can avail the plaintiff nothing in this action; that they acquired no right to file said notice in 1893, nor in 1894, because the certificates of sale gave no right of entry upon the Fraction Mine, and that said deeds gave no right to such entry; that the original locators of the Fraction Mine having failed to perform the required annual labor for the years 1893 and 1894, and having failed to file any notice of intention to hold and work the mine, as required by the acts of congress in that respect, and the Nesbitt Brothers not having taken actual possession until the fall of 1895, the mine had been forfeited and was subject to relocation when the defendant and James Murphy located the Sleeper Mine.
The vital question in this case is whether the said notices the Nesbitt Brothers caused to be recorded, of their intention to hold and work said mine, had the legal effect of saving the mine from being subject to relocation for any period of time. In determining this question it is not necessary to consider *Page 283 what legal value said certificates of sale and deeds may have, if any, except as evidence tending to show the good faith of the Nesbitt Brothers and their coclaimant, A. Borth, in all they did with reference to said mine.
The evidence discloses that, from the date of said sales, A. Borth regarded the Nesbitt Brothers as having acquired all the interests of DeBeck and Stevens in said mine, and that the Nesbitt Brothers and A. Borth mutually recognized each other as coöwners of said mining claim as tenants in common; that upon consultation and agreement between them, and at the request of A. Borth, the Nesbitt Brothers had said notices recorded in lieu of performing the annual labor; that said notices were recorded for the benefit of all three and to represent said mine; that in all things done in the premises all of said claimants acted in good faith and in the belief that the Nesbitt Brothers acquired all the right, title and interest of DeBeck and Stevens in and to said mine by virtue of said judgments, and sales made thereunder.
If the Nesbitt Brothers at the instance of A. Borth, and in pursuance of an agreement between them and him, had in good faith performed one hundred dollars' worth of labor or improvements on said mine in 1893 and 1894, pursuant to the provisions of section 2324, U. S. Revised Statutes, certainly the mine would not have been subject to relocation on the 1st day of January, 1895, although it might turn out on judicial investigation that the Nesbitt Brothers had no legal or equitable title to any interest therein. Such labor would have represented the mine, and defeated any relocation made in 1895. It is true that work done by a mere trespasser or stranger to the title will not inure to the benefit of the locator. (Little Gunnel M. Co. v. Kamber, 1 Morr. Min. Rep. 536.) But when the mine is represented by an owner, and annual work performed by or at the instance of the owner or some one in privity with him, it is sufficient. (2 Lindley on Mines, sec. 633.)
Evidently it was the intention of congress, in passing the special acts of 1893 and 1894, suspending the requirements of section 2324 of the Revised Statutes as to the annual labor on mining claims, that the recording of the prescribed notice should have the same legal effect as performing the labor. *Page 284
The act of 1893 provides * * * "that no mining claim which has been regularly located and recorded as required by the local laws and mining regulations shall be subject to forfeiture for non-performance of the annual assessment work for the year eighteen hundred and ninety-three;provided, that the claimant or claimants of any mining location, in order to secure the benefits of this act, shall cause to be recorded in the office where the location notice or certificate was filed on or before December thirty-first, eighteen hundred and ninety-three, a notice that he or they in good faith intend to hold and work said claim." The act of 1894 was the same in terms as the act of 1893, except the year of 1894 was substituted for the year 1893.
The Fraction Mine being represented by one of the locators, A. Borth, and said Nesbitt Brothers having had said notices recorded, in pursuance of said agreement and at the instance of said Borth, as well as of themselves, and under the honest belief of all three that the Nesbitt Brothers had legally acquired all the right, title and interest of the other two locators by virtue of said judgments and sales made thereunder, we are of opinion that said mine had not been forfeited nor subject to relocation when the location of the Sleeper Mine was made, and, therefore, that the location of the Sleeper Mine was and is invalid in so far as it covers the Fraction mining claim.
The contention of counsel that, in the sense of said Statutes of 1893 and 1894, "the claimant or claimants" authorized to secure the benefits of said acts, must have a valid claim to the mining ground claimed, is not, in our opinion, tenable. In case of conflicting locations of the same mining claim, the respective claimants are both required to perform the annual labor, and in 1893 and 1894 they were both required to do the required assessment work, or cause the prescribed notice to be recorded in lieu thereof, yet in no such case could both have a valid claim to the same mine.
Counsel contends that the judgment is against law in that it quiets the title in the plaintiff, which title they allege "never existed and which title, if it exists at all, is still in DeBeck and Stevens, and with which title the plaintiff has shown neither a legal nor an equitable connection, and neither *Page 285 of them (DeBeck and Stevens) being parties to this action, that title cannot be affected by this action, nor can it be quieted in a party who is a stranger to it, and especially it cannot be quieted in favor of such stranger as against abona fide prior occupant, claiming under color of title superior to that set up by the plaintiff."
The answer to this contention is that the title to the Fraction Mine was quieted in the plaintiff and his said coclaimants, one of whom is A. Borth, one of the original locators; that, as we think we have shown, said mine has not been subject to forfeiture, and hence the defendant's relocation is invalid; that if the Nesbitt Brothers have no valid title to DeBeck and Stevens' interest, and have not otherwise a valid interest in said mine, A. Borth has the exclusive right of possession as against them, as well as against the defendants, and the invalidity of the claim of the Nesbitt Brothers could not avail the defendant or make valid or strengthen his claim, nor could it invalidate or impair the validity of the claim of A. Borth. Any question that may exist, if any, between any of the locators of the Fraction Mine and the Nesbitt Brothers as to the rights of the latter claimants with reference to said mine, is a matter solely of their own concern, and not a matter in which the defendant has any legal interest.
We are of opinion that the evidence is sufficient to support said judgment and that said judgment is not against law. The judgment and order appealed from are, therefore, affirmed.
ON PETITION FOR REHEARING.