This action was brought by the plaintiff in the District Court of Lawrence county, to determine the rights of the parties claiming adversely about two hundred feet by one hundred and fifty feet of mining .ground situate in White wood Quartz Mining district in said county.
The plaintiff claims ownership of the ground in controversy by virtue of what is known as the “ Ophir ” mining claim, and the defendants claim such ownership by virtue of their “ Golden Terry Extension ” mining claim, these Wo mining claims overlapping and conflicting with each other to that extent.
This ground is alleged to be very valuable for the gold-bearing ores therein, and has given rise to much and costly litigation.
The plaintiff brings the action in the nature of an action to *452quiet the title and for an injunction, alleging also in its complaint that the defendants have unlawfully entered into the disputed ground by means of a tunnel commenced within the plaintiff's “ Ophir ” mining claim, and without plaintiff’s consent have extracted and carried away large quantities of valuable gold-bearing ores therefrom, and are continuing to extract and take away such ores to plaintiff’s great damage.
The plaintiff derives title to the ground by transfers coming down to it from the locators of the “ Ophir” — H. C. Harney and others — who, the complaint alleges, made a location of such mining claim on the 7th day of June, 1876, — the complaint further alleging that the plaintiff and its grantors have ever since said location been in the lawful possession of said “ Ophir ” claim.
The defendants, in substance, deny the validity of the £' Ophir ” location so far as it affects the ground in controversy, alleging several reasons for the invalidity, among which, are, that it was located, while that portion of the Territory within which it is situated, was a part of the Great Sioux Indian Reservation; as such reservation was defined and set apart for the exclusive use of the Sioux Nation of Indians, by the treaty with the several bands of that nation; and that it was predicated upon a discovery made wholly within the boundaries of another valid and subsisting prior mining location, no part of which has ever been abandoned.
The defendants also deny that the plaintiff or its grantors have ever been in the possession of any portion of the disputed property, until shortly before the commencement of the action when the plaintiff’s employes run a tunnel from its “ Golden Terra ” claim into the ore body found in this ground and underneath the defendants’ workings.
They further allege facts constituting an equitable estoppel against the plaintiff’s claiming this disputed property, and that they have been in the quiet and undisputed possession of the same, expending large sums in the development thereof, ever since ^ the 28th of February, 1877, when the Indian title thereto became extinguished, until the plaintiff’s interference by means of the tunnel before spoken of.
Other facts are alleged in the pleadings not necessary here to recite.
*453The trial was to the court, a jury being waived as to such issues as were properly triable to a jury, and a decision and judgment was rendered and entered for defendants, and plaintiff appeals.
A motion was made by plaintiff in the District Court for a new trial and overruled, and upon this action of the court arises the first and most important alleged error. The most important because if the action of the court in denying a new trial was right then as will hereafter be made to appear, the record contains nothing which will entitle the plaintiff to a reversal of the judgment.
In order to a proper understanding of the points involved in those grounds for such motion most strenuously urged here it is necessary to recite somewhat the history of the trial of the action and the facts bearing upon the motion in their chronological order.
The trial commenced on the seventh day of July, 1879, was concluded and finally submitted together with each parties’ proposed findings of fact to the court, on the second day of August, 1879. On September 26th following occurred the fire in Deadwood, hereinafter spoken of, at which it is alleged were destroyed the stenographer’s notes taken at the trial and the transcripts therefrom held by counsel. On the 6th of December the judge signed and filed his decision containing the findings of fact and conclusions of law. On December 30th plaintiff’s attorneys filed the motion for a new trial which was heard January 29, 1880, taken under advisement and decided February 2d, .1880. By stipulation of the parties the court extended the time for preparing and settling the bill of exceptions or case from time to time until March 1st, 1881, and on February 28th, 1881, the bill of ex- ■ ceptions as it appears in the record was finally settled and signed, there having elapsed one year and five months from the time of the Deadwood fire until the record was fully completed. These facts will be seen to be important when we come to consider the reasons urged for a new trial of the action.
The motion for a new trial is made upon the minutes of the court and accompanying affidavits in support of the first and second grounds or reasons, set forth and alleges the following reasons for the motion:
*454First — “ Irregularity in the proceedings of the court. Because the court rendered its decision after the destruction by fire, without the fault of plaintiff, of the records, all the depositions, exhibits, and all the oral evidence taken in said cause.
“II. — Accident which ordinary prudence could not have guarded against.
“ 1st. — That after the conclusion of the evidence, argument of counsel and the submission of said cause to the court and before said decision was rendered, the records, ail the depositions, exhibits in said action, and all the oral evidence taken on the trial of said action were destroyed by fire, without the fault of plaintiff, to-wit: by fire t hat destroyed the principal part of Deadwood on Septem- • ber 26th, 1879, as will more fully appear by the annexed affidavits.
“ 2nd. — That by the destruction of said records and evidence the plaintiff is deprived of a review of the findings of fact and conclusions of law by this court and by the appellate court, to the great and irreparable injury of said plaintiff.”
Then foil ows other reasons, to-wit: insufficiency of the evidence to sustain certain findings of fact; that the decision of the court is against law; that certain conclusions of law are against law; error in law occurring at the trial, specifying such error, and that the court erred in law in not finding certain facts requested by plaintiff.
Accompanying this motion are affidavits alleging the destruction by the fire of September 26th, 1879, of the pleadings, of the notes of the testimony taken by the stenographers, of the transcript therefrom in counsel’s possession, of a number of exhibits, and a number of important depositions.
The attorneys for the defendants presented and filed a counter affidavit stating, in substance, that copies of the pleadings had been preserved and substituted for the originals; that a large amount of the testimony on the material points in the case which had been briefed from the transcript of the stenographer’s had also been preserved and was then with the clerk, and that it was entirely practicable to make a complete and accurate case, or bill of exceptions, with the aids at hand.
*455Upon this motion the judge rendered a decision, in writing, which, as it found upon the disputed facts involved in the motion, was incorporated into the bill of exceptions and brought to this court, in which, after reciting the grounds of the motion, the judge says, upon the subject of the alleged destruction of the papers: “ The argument upon this motion has been confined to the causes stated in the 1st and 2d grounds above given. Those causes I propose briefly to review:
“ 1st. As to the alleged irregularity in the proceedings of the court, in rendering a decision after the occurrence of the fire, at which the stenographer’s notes, the transcripts therefrom furnished the counsel for the respective parties, and the original pleadings were destroyed; the facts are these: I had a copy of the pleadings furnished by the plaintiff for the court in pursuance of the statutes. A large part of the testimony compiled from the stenographer’s transcript, relating to all those subjects I demand as material to the just determination of the case, my own memorandas, and the findings prepared and submitted by each party. These were preserved, and, as stated in defendant’s affidavit opposing this motion, the copies of pleadings have been since substituted for and made originals, and the testimony and findings, together with the plats and exhibits thereto attached, have been placed with, and are now with, the clerk of this court. The record proper, to-wit: the pleadings, minutes of the trial and decision being now complete.
“ Again. The fire occurred on the morning of the 26th of September. My decision was not filed until December 6th. In the meantime, save about three weeks, during which I was absent attending the Supreme Court at Yankton, the court was constantly daily open for the transaction of business, notwithstanding which no motion was made relative to the subject, and no suggestion ever reached me of the propriety of postponing the decision until the evidence could be retaken or substituted. Certainly the amplest opportunity was afforded, and if such a course had been deemed' advisable by plaintiff’s counsel they should have moved the Court to that effect, or in some way called the Court’s attention to the necessity or propriety of reproducing the evidence in all its details and minuteness before the decision was filed.”
*456The Judge, in his decision upon the motion, says further:
“ A large mass of the oral, and at least a part of the documentary, evidence, has been preserved. As much of the destroyed oral and documentary evidence as could be had in a new trial, can be reproduced and put into the bill of exceptions or case. It may be difficult and involve much labor, but it is not impossible. I see no difficulty in counsel bringing before them their witnesses in instances where the testimony or its substantial parts have escaped them, and learn what in substance such witn esses did testify to. I believe copies of all the necessary documentary evidence are already with the clerk, among the findings and evidence returned to him. The power of the Court is sufficient to afford the needed time, and if there is any doubt upon that subject defendants’ counsel have already in open court offered to stipulate, which offer the Court will enforce, if necessary.
“ Therefore I have concluded that the just and proper remedy— just to the defendants as well as the plaintiff, is not by granting a new trial but by allowing plaintiff time and affording facilities for bringing all the evidence upon the record it desires to incorporate into the bill or case, and I-'have drawn an order to that effect.” * * *.
Thereupon the following order was entered :
“The motion to, vacate the findings and decision of the Court, and for a new trial in this action coming on for hearing and argument by the coun sel for the respective parties, and upon consideration thereof, it is by the Court on this 2d day of February, A. D. 1880, ordered that the said motion of plaintiff be and the same is overruled and denied.
“And in consideration of the facts stated in support of said motion it is further ordered that all proceedings herein, except the entry of judgment, be stayed for the period of sixty days, to enable the plaintiff to prepare and have settled a statement of case or bill of exceptions, and plaintiff is given sixty days time from this date for that purpose.
“ It is further ordered that if plaintiff shall be so advised and shall desire, it may have and subpoenaes are directed to issue from this court for such witnesses as may be by the respective *457counsel designated to attend for examination upon the Cóurt or Judge thereof, or a referee, to be appointed by the Court, to enable said plaintiff to prepare and have settled a case, or bill of exceptions, according to the truth of the matter, due notice being given of the time and place of such examination to opposite counsel.”
The only objection urged by plaintiff in this court against the decision of the District Court upon the motion for a new trial, relates to the alleged irregularity in rendering the decision of the Court after the fire, without a restoration of the minutes of the testimony, etc., and to the destruction thereof.
That portion of the motion based upon the minutes of the Court is not now presented, and, of course, could not be considered, no portion of the evidence, except such as pertains to certain exceptions therein being found in the transcript.
In arriving at a correct determination of the question involved in the decision of the District Court denying a new trial, it will require consideration of the practice prescribed by the Statutes of this Territory in actions of the character of the one before us.
Our practice act, adopted originally at the Legislative session of 1867-8, has met with the approval of Congress, and has been expressly affirmed and constituted the governing practice in suits in equity as well as in actions at law.
We are, therefore, not noAv embarrassed by any doubt regarding the power of the Legislature under the Organic act to provide one uniform mode of procedure for both classes of actions.
As is well known the Practice act, called the Code of Civil Procedure, was adopted from and largely modeled after the Code of Procedure of New York, with certain modifications necessary to adopt it to our system of courts, and with other amendments suggested by the legislation of California, where a similar Code is in force, and our own experience.
This Code undertakes to and does abolish all distinction in the modes of procedure between actions at law and suits in equity? preserving, however, the right of trial in each to its appropriate tribunal, to-wit: to a jury and to the Court. All are now called civil actions. A motion for a new trial is as requisite in an equity *458case as'in an action at law. The same form is required in preserving the exceptions, in making up a bill of exceptions or statement of the case, and in bringing the evidence into the record in what was heretofore denominated a suit in equity as in an action at law. In an equity case no more than in an action at law does the evidence adduced upon the trial form any part of the record unless made so by bill of exceptions or statement, nor is such evidence at all requisite as a support to the decree or judgment.
The record proper in an action tried upon issues of fact consists of the summons; the pleadings; the verdict, if tried to a jury; the decision, if tried to the Court; and the judgment. All other proceedings, including the evidence, must be brought into the record, if at all, by bill of exceptions or statement of the case, settled and signed by the Judge who tried the action, or settled by this court as pointed out in the Code.
This question thus presented to us is then not one involving a necessity for having the evidence in the recor d as a support to the decree, and is in no way analogous to the questions presented in those cases called to our attention (notably Hughes v. Washington, 65 Ills. 245) occurring in courts which still adhere to a practice in equity cases similar to the chancery practice proper. But it is a question rather whether the plaintiff has had reasonable opportunity to prepare and present its bill of exceptions, and more nearly resembles the questions arising in those cases where bills of exception have been lost or prevented from being settled, and signed by reason of the Judge, trying the cause, going out of office, or having died, contingencies provided for by our Statute.
The complaint is, upon whic h greatest stress is laid, that the stenographer’s notes are lost.
While the law authorizes the District Courts in their discretion to appoint stenographers, and provides for their compensation, it does not in any way make their notes in civil cases official, nor is there any mode for the authentication, of them, or of the transcripts therefrom, other than by the mode for the authentication of evidence taken in any other manner or by any other person, to-wit: by the signature of the judge to the bill of exceptions, or case, in which they, or such parts as are necessary to the bill, are incorporated.
*459Whatever the stenographer may note down as the testimony of a witness, or as evidence received, or proceedings had, has no more binding force, either upon the parties, or the judge who settles the exceptions, than notes taken by any one else. The law simply provides this as a convenient mode at the request of a party, of taking in civil cases full notes of what occurs at the trial, and does not impede any party in taking his own notes. After all, the judge, in case of contention, must settle the exceptions according to his own recollection, aided, if he can be, by his own notes, and, possibly by the stenographer’s.
No complaint is made to us by the plaintiff of the loss of any exception, save those to the decision of the court upon the facts, to-wit: because of the alleged insufficiency of the evidence to justify the findings of certain of the facts specified in its motion for a new trial, and because of the failu re of the court to find certain facts requested of the court by plaintiff to be, found, and which are named in the motion.
By the rules prescribed by the Statute, the rules of the court and our decisions, these exceptions do not require and do not admit of the setting out of the testimony in full and at length in the bill.
Section 279, Code of Civil Procedure, provides: “The objection must be stated with so much of the evidence as is necessary to explain it; and no more. When the exception is to the verdict or decision upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify 'the particulars in which such evidence is alleged to be insufficient.”
We have endeavored in repeated instances to enforce this wholesome rule, and if the evidence was here in mass and in minuteness as it is desired, we should be compelled to disregard these exceptions for want of compliance therewith.
It seems that notwithstanding the decision was not made and filed until December 6th, some two months and ten days after the destruction by fire of the stenographer’s notes, no steps were taken by the plaintiff to reproduce the testimony or to call the court’s attention to the loss, and no ihention is made of any wish to have it reproduced until the motion for a new trial, December 30th, *460and then the plaintiff chose to base its motion upon the minutes of the court. Upon a motion thus based there was no necessity for a reproduction of the testimony or for the use of the stenographer’s notes if they had been in existence, although they perhaps might and no doubt would have been convenient to counsel ; the reliance however in such case being upon the memory of the judge, assisted by such memorandum as he may have made.
It is optional with a defeated party to first prepare his bill of exceptions or statement of the case, have it settled and signed and move for a new trial upon it or he may move upon the minutes of the court. The plaintiff could have asked, after counsel found the decision adverse, for time to make, have settled and signed a bill of exceptions or case before moving for a new trial, and then if it had been refused such reasonable time as was proper, under the circumstances, might have had some cause to complain, although from the liberality displayed in extending the time after the motion, which was a year and two months and as long as requested, it cannot be doubted sufficient time would have been allowed by the District Court.
Counsel preferred, however, to rely upon the grounds stated in the motion rather than to make any effort in the direction of reproducing the destroyed evidence. They could have at least tried to do so and thus demonstrated its practicability or impracticability.
We see no impossibility or impracticability in the way of their making up, with the aid of so much as was preserved, and tendering a bill containing all the evidence needed, as they alleged it to be. By doing this their adversaries would have been compelled for their own protection to propose such amendments as they alleged were pertinent, and this bill thus tendered, with the proposed amendments when presented to the judge would have enabled him to satisfactorily determine whether a bill could be or not correctly settled according to the truth of the matter, and it is possible if this had been done preparatory to making the motion for a new trial with a view to make it the basis of the motion and it was found impracticable, the judge for that reason would have granted a new trial. But nothing of the kind was done or attempted.
*461The magnitude of the labor involved can furnish no excuse for not making the attempt and cannot justify this court in establishing the precedent here asked to be established. Our Statute gives ample power to the judge in settling a bill of exceptions and to parties in preparing one. Depositions could have been retaken, witnesses could have been called before the judge or a referee for the purpose. They could have been compelled to testify and it cannot be presumed they would testify differently from their testimony upon the trial.
These and many other reasons can be urged showing why it was not impracticable to make and have settled as elaborate and complete a bill of exceptions or case as the plaintiff may have desired.
We cannot say it was error for the District Court to refuse a new trial simply upon the plaintiff’s alleging it was impracticable to restore the evidence, no effort whatever being made in that direction, so far as is shown in the transcript brought to this court.
A reasonable discretion must be accorded the District Courts in the determination of motions of this character. A District Judge has better opportunity than this court of knowing the good faith or the want of it of the parties making such motions, and whether the loss of important evidence is or is not irreparable without awarding a new trial, and conceding that under our Statute a new trial is a right, deman dable and not discretionary' in any sense when manifest error prejudicial to the party has been committed upon the tria], still this is not inconsistent with the rule of reasonable discretion in the determination of motions based upon the grounds urged in this case.
The plaintiff has no legal cause of complaint. No right was denied the plaintiff which the law gave it, or which it could reasonably ask. The amplest time was given and every facility afforded for reproducing upon paper the evidence, which was not already with the papers in the case and the clerk. Indeed this court has no means of determining that all that was proper to show the per-tinency of the plaintiff’s objection to the decision was not fully preserved.
We cannot transfer a misfortune which has overtaken the plain*462tiff — if a misfortune has occurred to it in the loss complained of— to the defendants who are equally without fault, at least until it is satisfactorily demonstrated that such misfortune cannot otherwise be remedied, and assuredly it is not so demonstrated in the record before us.
We therefore conclude the District Court committed no error in overruling the motion for a new trial, so far as it was predicated upon the alleged loss of the notes of the trial. The other reasons are not urged and cannot well be, as they are not founded upon any objections which are saved, except that the conclusions of law in the decision are not good law. As to that it was not questioned upon the argument, and we find nothing to induce us to hold that the conclusions are not properly dedueable from and fully sustained by the findings. On the contrary we think they are.
No evidence having been brought into the record, we cannot, of course, review the findings of fact objected to, but must in accordance with the universal rule presume them to be right.
Having disposed of these questions their appeal is virtually disposed of. But there are exceptions in the transcript which we deem it proper to notice more fully than we have done in considering the questions relating to the motion for a new trial.
Evidence was received upon the trial against the plaintiff’s objection tending to prove acts of location of the defendants’ mining claim, and.of acts and declarations in support of the defendants’ plea of estoppel, done and uttered prior to February 28, 1877, the date of the abrogation of the Indian reservation in which these lands were included.
The action was tried before the decision of this court in the case of French et al v. Lancaster et al, not yet reported, in which it was held that no title could be acquired to mining ground situated upon the Sioux Indian Reservation by any acts of location performed while such reservation existed, and that such reservation included all of the Black Hills in this Territory, and existed until February 28, 1877.
To that decision we adhere. By two other decisions — one in United States v. McCall, and the other Uhlig v. Garrison, we have held, the reservation included the Black Hills country, and in the *463last above named that no title could be held or transferred by or between parties, being thereon in violation of the treaty under which such reservation was created.
An examination of the record, however, discloses the fact that the plaintiff first sought and obtained the ruling of the Court in its favor upon this very question. That against the defendants’ objection, evidence was offered and received tending to prove the location of the “ Ophir ” claim by acts done prior to said date, in support of the issue tendered in plaintiffs complaint of the location of the said “ Ophir,” on the 7th of June, 1876. The court in its rulings admitting this evidence at the instance of the plaintiff as in admitting the defendants’ evidence of such prior acts, did not undertake to pass upon the question of the validity of a mining location made upon this Indian Reservation, but placed the admission upon two grounds consistent with the subsequent decision of this court in French v. Lancaster : First. To the end that if it should finally be determined that a valid mining location could be there made prior to the 28th of February, 1877, all the evidence and the findings thereon would be in the record for the inspection of the Appellate Court; and, second, as such evidence would tend to establish, when properly connected by proof of subsequent claim and possession, the existence of facts on and after February 28,1877, essential to a valid mining location: for instance, that a disovery of a vein of gold-bearing ore had been made within the limits of the claim ; that the boundaries were distinctly marked on the ground at and after such date by their remaining stakes marking such boundaries placed prior to such date, and other facts.
This was not in any respect prejudicial to the plaintiff for several reasons. By the allegations in the complaint plaintiff derives its title solely from an attempted location of the “ Ophir ” made, it will be observed, in June, 1876. Beside in the findings the Judge has made a clear distinction between acts done prior to and subsequent to February 28, 1877, and has found -that on the 28th of February, 1877, the defendants were in the exclusive possession of the mining ground in controversy with the requisite discovery of a vein of valuable minerals thereon, and that they shortly there*464after performed every act necessary to constitute a valid location, and have ever since remained in possession, complying with the laws of Congress, the local laws, rules and regulations, to entitle them to maintain their possessory right thereto.
We do not intend now to detract, in any degree, from the effect of our decision concerning the invalidity of attempted acts of location of a mining claim upon the Sioux reservation, done prior to the date before spoken of, and we decline to consider the question of estoppel, or any other question founded upon declarations, or acts, which can neither create a right nor be the means of transferring one; but the views we entertain lead us to the conclusion that all evid ence of such acts and declarations was immaterial, and also harmless; for the findings upon the facts, and acts of location and appropriation which occurred and were done by the defendants, and their grantors, subsequent to the 28th of February, 1877, abundantly support the conclusions of law and the judgment of the District Court, striking out and eliminating altogether from the findings and decision • all that relates to matters prior to that date.
The judgment of the District Court is Affirmed.
All the Justices concurring.