Sisson v. Sommers , 24 Nev. 379 ( 1899 )

The facts sufficiently appear in the opinion. This action was brought to recover damages of the defendants for the alleged wrongful entering upon the Morning Star mining claim, and extracting and removing therefrom large quantities of valuable mineral-bearing rock, and to obtain a perpetual injunction restraining defendants from continuing the trespass. By the complaint the claim is particularly described by metes and bounds, and as being situated in Olinghouse canon, White Horse mining district, Washoe county, State of Nevada, and it is alleged, among other things, that the plaintiffs were, are now, and ever since the 24th day of May, 1897, have been, the owners, in the possession, and entitled to the possession, of said mining claim.

The answer puts in issue all the material allegations of the complaint, and alleges all the facts necessary to constitute a valid mining location by the defendants, December 22, 1897, of the mining ground described in the complaint, and named by defendants the "Forlorn Hope vein." And it is alleged that the defendants are the owners, in the possession, and entitled to the possession, of said mining claim. The sufficiency of the evidence on the part of the defendants is not questioned by the plaintiffs, except that it is claimed that the ground was not subject to location by them.

The case was tried by the court sitting without a jury. The trial resulted in a judgment for the defendants. The plaintiffs appeal from the judgment, and from the order of the court denying their motion for new trial.

The plaintiffs' claim to said mining ground is based upon a location thereof claimed to have been made the 22d day of May, 1897, by one of the plaintiffs, and they introduced evidence to prove the performance of every act necessary to constitute a valid location, and every condition requisite to continue the right acquired thereby, under the laws of congress and of this state. The sufficiency of such evidence in every material particular was contested at the trial, and is assailed by counsel of defendants on appeal, by elaborate argument, while counsel for plaintiffs maintain the sufficiency of the evidence to prove every material fact by like argument.

As we understand it, the court found for the plaintiffs on all the facts except as to the doing of the discovery work prescribed by Stats. 1897, p. 103, which provides: "Sec. 2. Before the expiration of ninety days from the posting of such notice upon the claim the locator must sink a discovery shaft upon the claim located to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary, to show by such work a lode deposit of mineral in place. A cut, or crosscut, or tunnel which cuts the lode at a depth of ten feet, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft."

The court found, in effect, that the discovery work done by plaintiffs within the ninety days was not sufficient under said statute, and that no further work was done by the plaintiffs prior to the entry of the defendants upon said mining claim on the 22d day of December, 1897.

As conclusion of law the court found that the plaintiffs' location of the Morning Star mining claim was not completed prior to the entry of the defendants, on account of the lack of the amount of discovery work required by said statute, and gave judgment for defendants accordingly. Counsel argue and urge that the work performed by the plaintiffs was a substantial compliance with said statute. By stipulation of the parties the judge of the trial court visited the mining claim to determine from actual inspection and observation the sufficiency of the discovery work done by the plaintiffs, and to determine all other disputed matters of fact so far as the same might be determined by such examination.

We do not consider that we are warranted by the evidence to disturb the finding of such facts by the court.

The validity of the provisions of said statute with reference to discovery work is directly involved in this case, and presented for determination on this appeal. The determination of this question will dispose of the case, and we do not deem it material to consider or pass upon the many other questions discussed by counsel.

In Colorado and several other states the work as specified in the Nevada statute is required to be performed as a prerequisite to the completion of a location. The same character of work is required in other states, but it is not made, in terms at least, necessary to complete a location, but rather, as we think, a condition to the continuance of the right acquired by location.

We regard it as entirely immaterial whether, under state legislation in reference to discovery work, the performance thereof be regarded as a necessary act of location, or as a condition to the continuance of the right after location. If such legislation is valid in the one case, it is in the other.

In Erhart v. Boaro, 113 U.S. 527, the Supreme Court of the United States recognized the validity of the Colorado act regarding such discovery work. We regard that case as sufficient authority on the subject. Many cases maintaining the validity of such state legislation are cited by Barringer and Adams in their work on the Law of Mines and Mining.

To enable a party to maintain a right to a mining claim after the right is acquired, it is necessary that the party continue substantially to comply, not only with the laws of congress, but with the valid laws of the state and valid rules established by the miners, in force in the district where the claim is situated upon which such right depends.

Failure to comply with such laws and rules works a forfeiture, whether the laws and rules provide for forfeiture for non-compliance or not, and the mining claim becomes subject to location by any qualified locator. (Mallett v. Uncle Sam M. Co., 1 Nev. 188;Oreamuno v. Uncle Sam M. Co., 1 Nev. 215; Barring. A. Mines, 300.)

Counsel for appellants admit that the state legislature may regulate the mode of acquiring and maintaining possession of mining claims, provided that the legislation is not in conflict with the laws of the United States, but contend that, as the act of congress gives the locator of a mine one year at least after he has made his location to do the required amount of work in order to hold it, an act of the legislature limiting the time is in conflict with the act of congress. They say, "although, under this provision of the act of congress, the legislature would be authorized, no doubt, to require locators to do more than one hundred dollars' worth of work annually, but not to limit the time within which it should be done."

The contention that, although the legislature may properly require a greater amount of work than congress has prescribed, it cannot limit the time in which to do it, does not strike us with any great force of reason. Congress has made the one hundred dollars' worth of labor the minimum amount to be done, and the time named is the maximum time for the performance of the work without the risk of forfeiture. We think the legislature may require a reasonable additional amount of work to be done annually, and a reasonable amount of work to complete the location (113 U.S. 527), or, after location, a reasonable additional amount of work within a reasonable time, less than the time named by congress for the annual expenditure, as a condition to the continuance of the right acquired by location of the mine.

"The state may not, by its legislation, dispense with the performance of the conditions imposed by national law, nor relieve the locator from obligations of performing in good faith those acts which are declared by it to be essential to the maintenance and perpetuation of the estate acquired by location. Within these limits the state may legislate." (Lindl. Mines. 249.) "No state has the right to decrease the amount of labor which congressional law requires to be done annually on a mining claim. The law clearly implies that the states and territories, or the district organizations in the absence of state or territorial legislation, may increase the amount of such labor." (Id. 250.)

The congressional law, we think, as clearly implies that the states and territories may require a reasonable amount of work to be done within a reasonable time after location independently of the annual assessment work prescribed by congress.

We are aware that the policy of the Nevada statute is questioned by many miners and prospectors, but the courts are not to question such policy. The question of policy is solely for the legislative department to determine.

The judgment and order appealed from are affirmed.