concurring:,
I concur in the affirmance of the judgment of the district court in favor of the defendants for reasons not relating to the invalidity of the location of the Beehive by John Pardy at the time that he was United States deputy mineral surveyor. If the action as between the intervener, who is in the position of a plaintiff, and the defendants, who are the only parties to this appeal, depended upon whether such a surveyor could make a valid location of a mining claim, it might be proper for this court to frankly reverse its decision and correct its conclusion in Hand v. Cook, 29 Nev. 518, because the federal courts, acting within the jurisdiction vested in them for finally construing federal enactments, as well as the United States land office and the Supreme Court of Utah, have placed an interpretation upon the act of Congress the reverse of that given by a majority of the members of this court in that case.
In Waskey v. Hammer, 170 Fed. 36, 95 C. C. A. 310, the United Stat,es Circuit Court of Appeals, in an opinion by Judge Ross, concurred in by Judges Gilbert and Morrow, after citing section 452, U. S. Rev. Stats. (U. S. Comp. Stats. 1901, p. 257), which provides that "the officers, clerks and employees in the general land office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public lands)’ and stating that the later rulings in the land department were to the effect that this statute is applicable to a deputy surveyor said: "In the case of Hand v. Cook, 29 Nev. 518, a majority of the Supreme Court of Nevada held that the statute in question did not apply to a deputy mineral surveyor; but the reverse was held by the Supreme Court of Utah in the case of Lavagnino v. Uhlig, 26 Utah, 1, 71 Pac. 1046, 99 Am. St. Rep. 808. It will not do for a court to take a strained and narrow view of the language employed by Congress in its enactments, but rather give such a construction as *375will carry into effect its obvious intent. We entertain no doubt that a deputy mineral surveyor is an employee 'in the general land office/ within the meaning of the statute. * * * Nor do we see that there is any much clearer way to prohibit an act than to say expressly that it is prohibited. That Congress did in the section in question.
"In the case of Prosser v. Finn, 208 U. S. 67, 28 Sup. Ct. 225, 52 L. Ed. 392, the supreme court held that section 452 applied to a special agent of the land department who had made an entry under the timber culture act (act March 3, 1873, c. 277, 17 Stat. 605, as amended by act March 13, 1874, c. 55, 18 Stat. 21). The court said: 'The difficulty in the way of any relief being granted to the plaintiff arises from the statute prohibiting any officer, clerk, or employee in the general land office, directly or indirectly, from purchasing or becoming interested in the purchase of any of the public land. That a special agent of the general land office is an employee of that office is, we think, .too clear to admit of serious doubt. * * * It is not clear, from any document or decision to which our attention has been called, what is the scope of the duties of a special agent of the land office, but the existence of that office or position has long been recognized. Suffice it to say that they have official connection with the general land office, and are un'dér its supervision and control with respect to the administration of the public lands. (Wells v. Nickles, 104 U. S. 444, 26 L. Ed. 825; 1 Land Dec. Dep. Int. 608, 620; Instructions to Special Timber Agents, 2 Land Dec. Dep. Int. 814, 819-822, 827, 828, 832; Circular of Instructions, 12 Land Dec. Dep. Int. 499.) They are in every essential sense employees in the general land office. They are none the less so, even if it be true, as suggested by the learned counsel for the plaintiff, that they have nothing to do with the survey and sale of the public lands, or with the investigation of applica-cations for patents, or with hearings before registers (and receivers. Being employees in the general land office, it is not for the court, in defiance of the explicit words of the statute, to exempt them from its prohibition. Congress has said, without qualification, that employees in the general land office shall not, while in the service of that office, purchase or *376become interested in the purchase, directly or indirectly, of public lands.’”
In my opinion, these decisions of the highest federal courts construing this act of Congress are conclusive .until or unless the Supreme Court of the United States reverses the case of Waskey v. Hammer, which is reported to be pending before that tribunal at this time on a writ of certiorari, or unless it reverses its own decision in Prosser v. Finn, or makes an improbable distinction by holding that a United States deputy mineral surveyor is not an officer or employee of the general land office when a special agent is held to be such an employee.
It is shown by the evidence, and apparently conceded, that John Pardy posted the notices and did the work regularly required for making the location, and did the annual work every year on the Beehive. Assuming that the location of this claim was void because John Pardy was a deputy mineral surveyor at the time it ivas made, there are obstacles which would prevent a recovery by the intervener.
As to the Sam Tilden claim, on which he relied as having been located ten years before the Beehive, it appeared that notices of location had been posted and recorded; but the jury found that the location work required by the rules and regulations of the mining district and the annual work required by the laws of Congress, had not been performed. If the Sam Tilden had been properly located, it might be said that, if its locator remained in possession and continued to claim the ground, he could hold it without- doing the annual work as against any one who failed to make a valid new location. But there is evidence supporting the plea of the statutes of limitations for actions for mining claims and for real estate interposed by defendants and tending to show an abandonment of the ground by the locator of the Sam Tilden and an estoppel against him, in addition to any mere failure to do the annual work which might result in forfeiture upon the making of a new valid location. The testimony of the locator of the Sam Tilden that he had done the annual work was contradicted by witnesses who asserted that no work had been done on the ground for eight or ten years before the location of the Beehive. The jury found the special issues in *377favor of the defendants, and the findings were approved by the court.
In the statement, which is to be commended for its conciseness while apparently fully and clearly presenting the issues raised, evidence indicating abandonment of the ground and acts which would estop the claimant under the Sam Tilden location from asserting a right to it is apparently uncontra-dicted. There was testimony that the locator of the Beehive had done the work for seven years with the knowledge of the locator of the Sam Tilden, who did not object or tell him that he owned the ground; that the locator of the Sam Tilden knew that the lessees were working on the Beehive and never made any objection, but, on the contrary, loaned them tools to work with and procured a tape-line and helped them to measure off the land, and never told them that he owned or claimed the ground or not to work or trespass there; and that he said he hoped they would get ore and that he would not bother about it.
In view of the weakness of the intervener’s claim under these circumstances, as apparently found by the jury, and considering the finding that the necessary location work had not been done on the Sam Tilden at the time the notices for its location were filed and recorded in the year 1889, that the annual work had not been done for so many years prior to the location of the Beehive in 1899, and that no objection had been made by the locator of the Sam Tilden to the work being done on the Beehive for seven years after its location, and that, instead of objection being made, assistance and encouragement w^ere given by him to the lessees working on the Beehive, and the evidence of acts relating to an estoppel and a bar under the statute of limitations, enough appears to sustain the judgment, regardless of any question of the insufficiency or invalidity of the location of the Beehive.