By the Court,
Noecross, C. J.:This action concerns the title to a certain piece of mining ground on Prospect Mountain in the Eureka Mining District, Eureka County, Nevada. The ground in question appears to have been embraced within the several mining claims following, named in the order of their location: Grindstone, Sam Tilden, Beehive, and Fannie. Plaintiffs instituted this action October 13, 1906, basing their right to recover upon the Fannie location. Prior to making this last-named location, the plaintiffs had been lessees of the said John Pardy, deceased, who was an original defendant, andAvho died subsequent to the rendition of judgment in the action. Plaintiffs based their right to recover upon the Fannie location upon the theory that the Beehive location was void because of the fact that its locator, the said John Pardy, was at the time of making the location a deputy United States mineral surveyor. After the defendants had filed their answer to plaintiffs’ complaint, proceedings were suspended in the court below for the reason that the question of the right of a deputy mineral surveyor to locate a mining claim was then pending in this court in the case of Hand v. Cook, 29 Nev. 518. The decision of this court in the Hand v. Cook case, supra, having been adverse to plaintiffs’ contention, plaintiffs appeared in court in, person and dismissed their complaint. Prior to the dismissal of the complaint, Henry K. Mitchell, who had been the attorney for the plaintiffs, was granted permission to intervene and filed a complaint in intervention, claiming title to the ground in controversy by virtue of a deed, elated March 15, 1907, for the Sam Tilden claim from one Maurice Hartnett. The defendants’ objection to the right of the said Henry K. Mitchell to *368intervene in the action having been overruled, defendants filed an answer and subsequently an amended answer to the said intervener’s complaint in intervention.
The case was tried upon the issues raised upon the complaint in intervention and the amended answer thereto. The defendant J. H. Byerly having no interest in the controversy other than that of lessee of the defendant John Pardy, and his lease having expired prior to the entry of judgment in the case, judgment was entered in favor of the defendant Pardy. The Sam Tilden location was made by the said Maurice Hartnett March 9, 1889. The Beehive location was made by the defendant Pardy July 27, 1899, and covers the major portion of the Sam Tilden claim. These two locations are the only ones directly involved in the action. The issues as made by the defendants were a denial of the allegations of the inter-vener; the allegation of the location of the Beehive; the possession thereunder continuously from the time of such location; that such possession was open, adverse, and notorious; the forfeiture of the Sam Tilden claim; and, also, a special plea of the statute of limitations of both two and five years. The case was tried by the court; but the court, deeming certain equitable features to be involved in the case, impaneled a jury in an advisory capacity. General and special issues were submitted to .the jury, which were found in favor of the defendant Pardy. The findings were adopted by the court, and a decision and judgment entered in favor of said defendant. From the judgment, and from an order denying the inter-vener’s motion for a new trial, the intervener has appealed.
The motion for new trial was based upon the grounds: (1) Insufficiency of the evidence to justify the decision of the court, and that such decision is contrary to the evidence, and that the same is against law. (2) Errors in law occurring at the trial and excepted to by the intervener.
A preliminary question is raised by counsel for respondents which goes to the jurisdiction of the lower court to entertain the complaint in intervention. We need not, we think, determine whether the intervener had such an interest in the result of the suit between the original plaintiffs and defendants as would entitle him to intervene, or whether the situation pre*369sented at that time falls within tbe rule laid down in the case of Harlan v. Eureka Mining Co., 10 Nev. 92, as contended. Had the plaintiffs remained in the suit and the issues raised upon the plaintiffs’ complaint and the defendants’ answer been tried and determined, the position of counsel for respondents might be correct. After the plaintiffs dismissed their complaint, the case went to trial between the intervener and the defendants upon the issues raised by their respective pleadings. The intervener became virtually the plaintiff in the case. At the time the plaintiffs dismissed the complaint, defendants did not ask to have the entire proceedings dismissed, but, without further objection, proceeded to trial upon the issues raised by their answer to the intervener’s complaint. We think, under the state of facts, the court had jurisdiction of the parties as well as the subject-matter.
The statement on motion for new trial presents nine assignments of error, which we will consider in order.
Error is assigned in admitting in evidence the laws or regulations of the Eureka Mining District. These regulations were offered in evidence in support of defendants’ objection to the admission in evidence of the notice of location of the Sam Tilden claim; defendants contending that such notice was not in accordance with the district regulations. The objection to the admission of the notice in evidence was overruled and the notice admitted. Even conceding, for the purposes of this case, that those regulations were erroneously admitted, appellant was in no way injured thereby.
Error is assigned in the ruling of the court excluding as evidence a certain notice recorded by the said Maurice Hartnett, December 19, 1893, in the office of the county recorder of Eureka County, which notice was filed in pursuance of the act of Congress relieving locators from the necessity of doing annual labor for the year 1893. This notice was offered for the purpose of proving an act of ownership upon the part of intervener’s grantor at the time of filing such notice. As this notice was filed nearly six years prior to the date of the initiation of defendants’ claim, and as they have not questioned the ownership of the Sam Tilden claim by intervener’s grantor prior to the date of the location of the Beehive claim, *370we are unable to see wherein this proposed evidence was material and wherein its rejection could possibly be prejudicial error.
Error is assigned in the ruling of the court excluding the evidence of Maurice Hartnett offered for the purpose of proving that the Sam Tilden claim was one of a group of claims known as and called the Excelsior Group. It is difficult to understand the making of this assignment, in view of the fact that the record upon appeal contains the following from the testimony of the said Maurice Hartnett: "Maurice Hartnett then testified: 'That the property conveyed was and is the Sam Tilden in suit and constitutes one of the Excelsior Group which he conveyed by the deed offered.’ ” The deed which was admitted in evidence over the defendants’ objection also described the claim as one of the Excelsior Group.
Error is assigned in overruling intervener’s objection to the testimony of W. C. Stewart and A. R. Gibson relating to a lease from the defendant Pardy. This evidence, we think, was clearly admissible as showing or tending to show possession by Pardy and work done or being done upon the claim in question. While, at the time this evidence was offered, defendant Pardy had not offered his proof of location of the Beehive claim, this evidence was subsequently supplied. The court has the discretion to admit evidence out of the regular order, subject to the supplying of other evidence later which will establish its relevancy or materiality.
Error is assigned in sustaining the objection interposed by the defendants to a question asked the witness A. R. Gibson to explain how or why he and his partner gave up their lease. The witness had previously testified that he and his partner, Stewart, had given up their lease. Conceding, without deciding, that the question was permissible in cross-examination, we are unable to see wherein the exclusion of this testimony could possibly have been prejudicial to the intervener, as it ¡was not material to the issues presented.
Error is assigned in admitting as evidence defendants’ notice of location of the Beehive mining claim. A notice of location of a mining claim is not required to be recorded under the statutes of this state. (Comp. Laws, 208, et seq.) Comp. Laws, *371210, provides for the filing of a certificate of location which must contain certain specified statements. A certificate complying with the provisions of this section is made "prima facie evidence of the facts therein stated.” The section further provides: "Any record of the location of a lode mining claim which does not contain all the requirements named in this section shall be void.” The notice admitted in evidence does not answer the requirements of a certificate of location, in that it fails to contain at least the fifth requirement: "The dimensions and location of the discovery shaft, or its equivalent, sunk upon the claim.” The notice, we think, was admissible as evidence of an act of location and in support of defendants’ claim of adverse possession, and, also, for purposes of explaining the testimony of defendant Pardy and other witnesses. Defendant did not rely on it as a certificate of location or offer it in evidence as a certificate. (Jones v. Prospect Tunnel Co., 21 Nev. 352.) The filing of a defective certificate of location or the failure to file any certificate does not invalidate the claim. We had occasion to go into this question very fully in the case of Ford v. Campbell, 29 Nev. 578. In that case we held that the failure to file a certificate of location in accordance with the provisions of the statute did not render a location void, but that the effect of failure to file such certificate was to impose upon the claim owner the burden of proof to establish by other evidence that a valid location had in fact been made. In this case defendants, we think, established, independent of record proof, the essential requirements of a valid location of the Beehive claim.
A further objection to the admission in evidence of the notice of location of the Beehive claim is based upon " a variance between the allegata and probata, in this, that the answer alleges its first course to be at a point commencing south 30% degrees east, 292 feet, from the southwest corner of Eldorado patent No. 140, and its last course to be thence south 30% degrees east, 840 feet, while the notice offered claims in each course above stated 32% degrees east” We think this objection is without merit. Notices of location are not required to be strictly exact, and they are not controlling. The courses and distances described in the notice yield to the monuments *372erected on the ground. (1 Lindley on Mines, secs. 381, 382; Book v. Justice M. Co., 58 Fed. 106.)
Error is assigned in the finding made by the trial court that a vein, lode, or rock in place was discovered at the time of the Beehive location or in sinking the discovery shaft. It may be seriously questioned whether the evidence shows a discovery in the so-called "discovery shaft” The evidence, however, shows clearly that the defendant Pardy subsequently found valuable ore in other workings upon the claim, some of which ore was extracted and shipped and -was of a value in excess of $100 per ton. It is a reasonable deduction from the evidence that the work done in other parts of the claim where ore was unquestionably discovered was more than the equivalent of that required for a discovery shaft. Conceding, without deciding, that this finding was erroneous, it does not, we think, affect the result in this case.
The last assignment of error goes to the sufficiency of the evidence to justify the decision and judgment. The defendant Pardy, after testifying that he located the Beehive claim at the time stated in the notice, and that he built posts or monuments at the corners described, further testified: "I did $100 worth of work on the Beehive mine for the year 1899, after my location of the claim, and each year since, up to the present time, I have done $100 worth of work on the Beehive. When I located the Beehive mine, I was familar with the ground on which it is located and with the surrounding ground. The ground I located was unoccupied and open to location as mining ground. At the time of my locating it, there had not been any work done on the ground located as the Beehive for a period of at least eight or ten years. I examined the ground and ascertained that the annual labor had not been performed on it, since the time of my location of the Beehive mine. I have had the open and actual possession of the ground against Maurice Hartnett and his grantee as alleged, H. K. Mitchell, and against all others up to the commencement of this suit. Maurice Plartnett, nor any one else, ever informed me I had located ground of his. Maurice Hartnett knew I was working the ground, and did not interfere with my so doing. For over *373seven years Maurice Hartnett saw me work the ground, doing the annual labor and other work, and did not prevent me from doing the same. He never told me he owned the ground. When I made the location of the Beehive, there was what I call ore or mineral-bearing matter at the location point or discovery shaft. The mine was located on a zone of mineral-bearing lime. That all the limestone on that side of the Prospect Mountain be considered the lode or ledge of mineral-bearing rock.” The witness further testified: "That, after said location of said Beehive, I took a considerable quantity of paying ore from the said Beehive mine.”
A. R. Gibson, a witness for defendant Pardy, testified that he, together with W. C. Stewart, had leased the Beehive claim from the defendant Pardy and had extracted ore therefrom and shipped the same to reduction works; that the said Maurice Hartnett was aware of the work being done by them upon the Beehive claim, but made no claim whatever that he owned the property. The witness further testified that he had been familiar with the property for a number of years, and that the annual labor was not done on the ground for many years until the Pardy location was made.
W. C. Stewart testified that he was associated with the witness A. R. Gibson in a lease of the Beehive mine from the defendant Pardy; "that Maurice Hartnett knew of the said lease and of the work the said Stewart and Gibson were doing on the said Beehive mine; and that the said Hartnett never objected thereto, but, on the contrary, lent them some tools to work with on the said mine.”
The contention madé by counsel for appellant that the proof shows that the end lines of the Beehive claim are not parallel is of no force in this case, as such a fact, if it be a fact, does not make the location invalid, but could only affect extralateral rights, which are not involved in this case. (Section 365, Lindley on Mines.)
There is evidence in this case that, at the time of the location of the Beehive claim, the Sam Tilden claim was subject to forfeiture for failure to do the annual labor required; that, since the location of the Beehive claim, the defendant Pardy *374has been in the open, notorious, and adverse possession thereof against the intervener and his grantor and against all the world.
The judgment and order appealed from are affirmed.
Sweeney, J.: I concur.