Nash v. McNamara

By the Court,

Talbot, O. J.:

The respondents, who were plaintiffs in the district court, brought this action to recover certain claims called the "Unions” with designated numbers, situated in the Manhattan Mining District, and which had been located on the 24th and 25th days of July, 1905. It was also stated in the complaint, that the defendants were breaking down and removing large quantities of ore from the premises, and the prayer was for the recovery of possession, for an injunction, and for $10,000 damages. The defendants, who are the appellants here, set up ownership and possession of the ground in themselves under the Liberty and Justice mining claims, located September 29, 1905. The contending parties alleged that the respective locations on which they relied had been made on the unappropriated mineral lands of the United States. This allegation in the complaint was denied by the answer. Upon the trial, after evidence had been introduced regarding the location of these claims, the defendants offered to prove that on July 1, 1905, twenty-four days prior to the location of the Unions and ninety-one days before the location of the Liberty and Justice, three men, Kopenhaver, Meissner, and Lawson, had made valid locations on the unappropriated mineral lands of the United States of claims called the "Portlands” and numbered, and which covered the ground in dispute, and that these were valid, existing claims at the time the Unions, upon which respondents rely, were located. After argument and consideration the learned district judge sustained an objection to this offer, and, although he did not allow the defendants to prove that at the time the Union claims were located the ground was covered by prior and existing valid locations, he made a finding that the Unions were located upon the unappropriated public domain of the United States, and entered judgment in favor of respondents. Of the forty-two specifications of error, a number relate directly or indirectly to the rejection of this offer and to the making of this finding, and the controlling question involved is whether a junior location made upon ground covered by a valid existing senior location will prevail over one made after a failure to do the required work on the senior location, when the statute of limitations has not run in favor of either.

Upon the trial, and also upon the hearing in this court, respondents relied upon the case of Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119, contending that the facts there are similar to those in the present ease, and that the law applicable to them has been settled by the latest expression of the highest tribunal. It is admitted by counsel for appellants that the language in the decision in that case is in conflict with Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735, and other decisions of that and other courts favorable to appellants; but it is claimed that it is overruled by a later decision of that court in Brown v. Gurney, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717. Eeeognizing that it is the special prerogative of the Supreme Court of the United States to finally construe federal statutes, and that its opinions relating to other matters are entitled to special consideration as coming from the highest and ablest tribunal, it becomes important to examine and analyze the conflicting decisions of that court bearing on the issue before us, and to determine which are most in consonance with reason, justice, legal principles, and the statutes relating to the location- of mining claims.

Congress, in the proper exercise of its control over the public domain, by act of May 10, 1872, c. 152, sec. 2 (section 2319 of the Revised Statutes [U. S. Comp. Stats. 1901, p. 1424]), provided "that all valuable mineral deposits in lands belonging to the United States are free and open to exploration, occupation and purchase by citizens and those who have declared their intention to become such, under regulations prescribed by law.” Section 2322 [page 1425] provides that "the locators of all mining claims, so long as they comply with the laws of the United States and with state and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right and enjoyment of all the surface included within their lines of location and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically” within planes drawn through parallel end lines. Section 2324 [page 1426] provides that "the location must be distinctly marked on the ground so that its boundaries can be readily traced; * * * that on each claim located after the 10th day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars worth of work shall be performed or improvements made during each year; * * * and upon a failure to comply with these conditions the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location had ever been made; provided that the- original locators, their heirs, assigns, or legal representatives have not resumed work upon the claim after failure and before such location.”

Section 208 of the Compiled Laws of Nevada directs that any person, a citizen of the United States, or one who has declared Ms intention to become such, who discovers a vein or lode, may locate a claim by defining the boundaries thereof in the manner prescribed and by posting at the point of discovery a notice containing the name of the lode or claim, the name of the locator or locators, the date of the location, the number of linear feet claimed in length along the course of the vein, with the width on each side of the center, and the general course of the vein or lode. Section 209, as amended by Stats. 1901, p. 97, c. 93, see. 2, requires that before the expiration of ninety days from the posting of notice of location the locator shall sink a discovery shaft upon the claim of the depth of at least ten feet or its equivalent.

It is the contention of the appellants that the Portland locations, if made on the 1st day of July, as they offered to prove, withdrew the land from location for ninety days, during which time the respondents could initiate no rights upon it; that as the ten feet of work required by the state statute was not done upon these claims within ninety days after they were located, upon the expiration of that period they became, similarly as upon a failure to do the annual work required by the federal statute, subject to relocation by the appellants at the time they made their locations. As the language of the opinion in the Uhlig case stands opposed, not only to the law as established by Belk v. Meagher and as held by lawyers and miners for a quarter of a century, but to numerous decisions of the court, state and federal, in the mining states, and to others of the Supreme Court of the United States, it will be advantageous to consider the Belk case as the leading one, representative of numerous others, and compare the two.

The facts in both are similar to the one before the court, in that the contest here is between a claim alleged to have been located upon ground covered by a prior, valid, existing location, and a relocation made upon the same ground after the expiration of the time for doing the required work on the senior claim. In regard to the periods of time between the making of the locations of the contestants, the Belk case is more like the one before the court than Lavagnino v. Uhlig. In the Belk ease it was conceded by both parties that the original or senior claims lapsed on the 1st day of January, 1877, because of failure to perform the annual work. Belk made the location under which he claimed on the 19th day of December, 1876, and did all that was necessary to perfect his rights, if the premises were open to location at that time. His entry on the property was peaceful. On February 21, 1877, Meagher made his location, doing all that was necessary to perfect his rights, if the premises were then open to location. Here the difference in the respective dates of location of the contending claims is about seventy days, as in the Belk case. The two Uhligs, evidently at an expense of not less than $1,600 for the annual work, had been located and maintained for nine years previous to the location of the claims upon which Lavagnino relied. .The statute of limitations applicable to such cases in Utah is seven years. In Nevada it is five years for real estate and two years for mining claims.- (Comp. Laws, 3706.) This difference of time, amounting to nearly nine years, a period longer than the one specified in the statute, and seventy days, is sufficient to distinguish the Uhlig ease from the present one, and also from the Belk case, which is more nearly in point. State statutes of limitation relating to mining claims are recognized by section 13 of the act of Congress of July 9, 1870. Properly Uhlig was given his claims by the Supreme Court of Utah, and that judgment was affirmed by the Supreme Court of the United States; but, should force be given to all the language used in that case by the highest tribunal, it conflicts with the Belk case and other cases.

The following extracts from the unanimous opinion of the court, written by the Chief Justice, in Belk v. Meagher, are appropriate: "Mining claims are not open to relocation until the rights of a former locator have come to an end. A relocator seeks to avail himself of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim and left the property open for another to take up. The right of location upon the -mineral lands of the United States is a privilege granted by Congress; but it can only be exercised within the limits prescribed by the grant. A location can only be made where tbe law allows it to be done. Any attempt to go beyond that will be of no avail. Hence a relocation on lands actually covered at the time by another valid and subsisting location is void;- and this, not only against the prior locator, but all the world, because the law allows no such thing to be done. It follows that the relocation of Belk was invalid. * * * The next inquiry is whether the attempted location in December became operative on the 1st of January, so as to give Belk the exclusive right to the possession and enjoyment of the claim after that. We think it did not. The right to possession comes only from a valid location. * * * A location is not made by taking possession alone, but by working on the ground, recording, and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations.. As in this case all these things were done when the law did not allow it, they are as if they had never been done. On the 19th of December the right, to the possession of this property was just as much withdrawn from the public domain as the fee is by a valid grant from the United States under the authority of law, or the possession by a valid and subsisting homestead or preemption entry. As the United States could not at the time give Belk the right to take possession of the property for the purpose of making his location, because there was an existing outstanding grant of the exclusive right of possession and enjoyment, it would seem necessarily to follow that any tortious entry he might make must be unavailing for the purposes of a valid location of a claim under the act of Congress. A location, to be effectual, must be good at the time it is made. When perfected, it has the effect of a grant by the United States of the right of present and exclusive possession. * * * Here Congress has said in unmistakable language that what has been once located under the law shall not be relocated until the first location has expired.”

In the Uhlig case, which was by a divided court, no intention of overruling any conflicting decision is expressed; but, in referring to certain text-books, it was said: "Statements are found which seemingly indicate that in the opinion of the writers, on the forfeiture of a senior mining location, quoad a junior and conflicting location, the area of conflict becomes in an unqualified sense unoccupied mineral lands of the United States without inuring in any way to the benefit of the junior location. But in the treatises referred to no account is taken of the effect of the express provisions of Rev. Stats, sec. 2326 [U. S. Comp. Stats. 1901, p. 1430]. Moreover, when the cases to which the text-writers referred as sustaining the statements made are examined, it will be seen that they were decided either before the passage of the adverse claim statutes of 1872, or concerned controversies between the senior and junior locators, or depended upon the provisions of state statutes.” As Belk v. Meagher does not come within any of these classes, it may be inferred that by inadvertence the writer of the opinion did not have that case in mind and that the court did not intentionally overrule the principles laid down in that and followed in other cases.

This inference finds further support in the language of that tribunal in Mining Co. v. Tunnel Co., 196 U. S. 342-3, 25 Sup. Ct. 266, 49 L. Ed. 501, submitted at the same term, in Brown v. Gurney, 201 U. S. 191, 26 Sup. Ct. 509, 50 L. Ed. 717, determined a year later, and in Clipper Mining Co. v. Eli Mining Co., 194 U. S. 226, 24 Sup. Ct. 634, 48 L. Ed. 944, decided one year previously, in which the court said: "It will be seen that section 2322, Rev. Stats. [U. S. Comp. Stats. 1901, p. 1425], gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one without his consent, or at least his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts'or otherwise. It was the judgment of Congress that, in order to secure the .fullest working of the mines and the complete development of the mineral property, the owner thereof should have- the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locator as the vein or lode by him discovered and located. In Belk v. Meagher, 104 U. S. 279, 283, 26 L. Ed. 735, it was said by Chief Justice Waite that 'a mining claim perfected under the law is property in the highest sense of that term’; and in a later ease (Gwillim v. Donnellan, 115 U. S. 45, 49, 5 Sup. Ct. 1112, 29 L. Ed. 348) he adds: 'A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. If, when one enters on land to make a location, there is another location in full force which entitles its owner to the exclusive possession of the land, the first location operates as a bar to the second.'

"In St. Louis Mining Co. v. Montana Mining Co., 171 U. S. 650, 655, 19 Sup. Ct. 63, 43 L. Ed. 320, the present Chief Justice declared that,' Where there is a valid location of a mining claim, the area becomes segregated from the pub; lie domain and the property of the locator.’ Nor is this 'exclusive right of possession and enjoyment’ limited to the surface, nor even to the single vein whose discovery antedates and is the basis of the location. It extends (so reads the section) to 'all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.’ In other words, the entire body of ground, together with all veins and lodes whose apexes are within that body of ground, become subject to an exclusive right of possession and enjoyment by the locator. And this exclusive right of possession and enjoyment continues during the entire life of the location, or, in the words of Chief Justice Waite, just quoted, while there is a 'valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States.’ There is no provision for, no suggestion of, a prior termination thereof. * * * And, if the surface is open to the entry of whoever seeks to explore for veins, his possession can be entirely destroyed. In this connection it may be well to notice the last sentence in section 2322, * * * which is a limitation on such right,.and reads: 'And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.’ * * * The difficulty with the case presented by the plaintiff in error is that under the findings of fact we must take it that the entries of the locators of these several lode claims upon the placer grounds were trespassers, and as a general rule no one can initiate a right by • means of a trespass. (Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732; Trenouth v. San Francisco, 100 U. S. 251, 25 L. Ed. 626; Haws v. Victoria Copper Mining Company, 160 U. S. 303, 16 Sup. Ct. 282, 40 L. Ed. 436.) See, also, Cosmos Exploration Company v. Gray Eagle Company, 112 Fed. 4, 17, 50 C. C. A. 79, 93, 61 L. R. A. 230, in which the court said: 'No right can be initiated on government land which is in the actual possession of another by a forcible, fraudulent, or clandestine entry thereon. (Cowell v. Lammers [C. C.] 21 Fed. 200, 202; Nevada Sierra Oil Co. v. Home Oil Co. [C. C.] 98 Fed. 674, 680; Hosmer v. Wallace, 97 U. S. 575, 579, 24 L. Ed. 1130; Trenouth v. San Francisco, 100 U. S. 251, 25 L. Ed. 626; Mower v. Fletcher, 116 U. S. 380, 385, 386, 6 Sup. Ct. 409, 29 L. Ed. 593; Haws v. Mining Company, 160 U. S. 303, 317, 16 Sup. Ct. 282, 40 L. Ed. 436; Nickals v. Winn, 17 Nev. 188, 193; McBrown v. Morris, 59 Cal. 64, 72; Goodwin v. McCabe, 75 Cal. 584, 588, 17 Pac. 705; Rourke v. McNally, 98 Cal. 291, 33 Pac. 62.)’”

Cases supporting this legal principle, including Brown v. Killabrew, 21 Nev. 438, are cited in the decision of the District Court of Nye County rendered last year in Ford v. Brown.

The opinion in the Chlig case quotes at length and relies upon section 2326 of the Revised Statutes, Act Cong. May 10, 1872, c. 152, sec. 7, 17 Stats. 93 [U. S. Comp. Stats. 1901, p. 1430]. This section relates to the procedure where an adverse claim is filed upon an application being made for patent. There is nothing in its language as to whether a second location, made before, may prevail over a third location, made after, failure to do the required work, and nothing is stated in regard to the time when claims become subject to relocation, and it does not in any way designate bow or when the rights of parties by location or relocation may be acquired, and consequently has no bearing upon the question which was before the court, and lends no support to the conclusion reached. The part of this section upon which the opinion seems to be based enacts that "it shall be the duty of the adverse claimant within thirty days after filing his claim to commence proceedings in a court of competent jurisdiction to determine the question of right of possession and prosecute the same with reasonable diligence to final judgment and a failure to do so shall be a waiver of his adverse claim.” This simply provides that by failure to assert them a claimant may lose any' rights which he has in the same way that a defendant in any action may lose his by default and failure to answer, and neither litigant in that case had made any such default or failure. It relates to how rights already obtained maybe defended, determined, preserved, and forfeited, but not as to how those rights may be acquired by location or otherwise. This was not passed later .than the other sections of the Bevised Statutes mentioned, but at the same time as a part of the same act of May 10,1872. As there is nothing in its language relating to the time or method of locating claims, we are> unable to perceive how it can in any way amend, modify, repeal, or affect the language in section 2322, providing "that the locators of all mining locations, so long as they comply with the laws of the United States and with state, territorial and local regulations not in conflict with the laws of the United States governing their' possessory title * * * shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside their surface lines extended downward vertically” and within planes running through parallel end lines, or the language in section 2324 that "the location must be distinctly marked on the ground so that its boundaries can be readily traced; that on each claim located after the 10th of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars worth of labor shall be performed or improve-merits made during each year; * * * and that upon the failure to comply with these conditions the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made.”

For the purpose of making the time uniform for doing the annual work, and for the relocation of claims on which such work is not performed, section 2324 was amended eight years later by the act of January 22, 1880, c. 9, sec. 2, 21 Stats. 61 [U. S. Comp. Stats. 1901, p. 1426], so as to provide that the period within which the work is required to be done annually on all unpatented mining claims shall commence on the 1st day of January succeeding the date of location. In the Uhlig opinion the court said: "It cannot be denied that under section 2326, if before abandonment or forfeiture of the Levi P. claim, the owners of the Uhlig locations had applied for a patent, and the owners of the Levi P. had not adversed the application, upon an establishment of & prima facie right in the owners of the Uhlig claims, an indisputable presumption would have arisen that no conflict claims existed to the premises described in the location notice. (Gwillim v. Donnellan, 115 U. S. 45, 51, 5 Sup. Ct. 1110, 29 L. Ed. 348.). And the same result would have arisen had the owner qf the Levi P. adversed the application for a patent based upon the Uhlig locations and failed to prosecute and waived such adverse claim. In both of the supposed instances the necessary consequence would have been to conclusively.determine in favor of the applicant, so far as the rights of third persons were concerned, that the land was not unoccupied public land of the United States, but, on the contrary, as to such persons, from the time of the location by the applicant for the patent, was land embraced within such location and not subject to be acquired by another person. And this result, flowing from the failure of the owner of a subsisting senior location to adverse an application for patent by the owner of an opposing location, or his waiver if an adverse claim is made, must, as the greater includes the lesser, also arise from the forfeiture of the claim of the senior locator before an application for patent is made by the conflicting locator, and the consequent impossibility of tbe senior locator to successfully adverse after tbe forfeiture is complete. Of course, tbe effect of tbe construction wbieb we have thus given to section 2326 of tbe Bevised Statutes [U. S. Comp. Stats. 1901, p. 1430] is to cause tbe provisions of that section to qualify sections 2319 and 2324 [pages 1424, 1430], thereby preventing mineral lands of tbe United States, wbieb have been tbe subject of conflicting locations, from becoming, quoad tbe claims of third parties, unoccupied mineral lands by tbe mere forfeiture of one of such locations.”

By this language it is correctly stated at tbe beginning that where there are two claimants, and one applies for patent, tbe other may lose bis rights under section 2326 by failing to adverse. Under tbe peculiar and unusual circumstances, tbe result in tbe Ublig case was correct, and could have been justified on another ground; but we are unable to perceive the force and correctness of tbe conclusion, on which tbe opinion was based, that because a claimant may waive bis rights in proceedings for patent under section 2326, and because a senior locator may forfeit bis, that therefore a mining claim is subject to relocation, or, what is tbe same thing, a junior or second location may be initiated on tbe ground as soon as tbe first location has been made, instead of upon tbe failure of the first locator to perform tbe required work as enacted by tbe statute. By a literal construction what is called a modification, we think, in effect would be a judicial repeal of a plain enactment, supported only by reference to another section which has no application. Tbe language used is equivalent to saying that because a claimant may waive bis right under section 2326 by failing to adverse, and a senior locator may forfeit bis, therefore mining locations do not become subject to relocation upon the failure to do tbe required work as provided by section* 2324, but that they may be relocated and rights initiated at any prior time.

Tbe sections relating to proceedings upon application for patent are for tbe purpose of enabling claimants to obtain a final grant of tbe legal title from the government for ground previously acquired and to avoid any necessity of doing tbe annual work. So long as one hundred dollars is expended each year upon the claim, as required by the act of Congress, the owner’s right, to exclusive possession and. to extract and exhaust the ore is as complete as if he held a patent, for which he may never apply unless he desires. Not infrequently ore worth millions of dollars is taken from mines which are finally abandoned as worthless and no application to patent them is ever made. The right to obtain patent depends upon the making of a location or upon having held possession during the period of the statute of limitations; but the making of the location and the time for making it do not depend upon the section regulating the proceedings upon application for patent which the claimant may never institute.

Surely it will not be contended that Congress has not the power to regulate the disposition of the unappropriated public mineral lands. The statute having clearly provided that these are open to location by citizens of the United States and those who have declared their intention to become such, and that the locators of mining claims, upon complying with the laws, shall have the exclusive right of possession and enjoyment of the surface included within the lines of their locations, and that claims shall be subject to relocation upon the failure to do the required work, these provisions ought not to be nullified or repealed by the courts because there is another section providing that a claimant may waive his right by a failure to adverse when application has been made for a patent, or because a senior locator or others who are not parties to the litigation may forfeit their rights by failing to do the required work. It is the duty of courts to construe and interpret the laws; but they should be careful not to encroach upon the legislative department, or set aside statutes, federal or state, except when they are clearly in conflict with the Constitution. As the Uhlig case was. one on adverse proceedings against an applicant for patent, the decision being based on the statute regulating these, anything the court said regarding the rights or forfeiture of an applicant in such proceedings may be considered as dictum in the present case, which is not on such proceedings. To enforce all the statements in that opinion in cases generally, like the one at bar, would necessitate the setting aside of the provisions in other sections of the act of May 10/1872, to which reference has been made, and which were plainly followed and enforced by the Belk case and other cases. The senior locator in the Uhlig case waived his interests by failing to appear, and was not in court or trying to assert them, and anything said regarding the forfeiture of his rights was incidental.

If the plain provisions of the statute are to be overthrown, after having been enforced by numerous courts and universally accepted for a generation, not only will vested rights be endangered, but, as said in that case: "To hold that, before the former location has expired, an entry may be made and the several acts done'necessary to perfect a relocation will be to encourage unseemly contests about the possession of the public mineral-bearing lands, which would almost necessarily be followed by breaches of the peace!’ Then, instead of claims becoming subject to relocation upon the 1st day of January and after failure to do the annual assessment, the ground might be relocated before there was any such failure, and a day, a month, or a year previously. If the junior locator may acquire rights by entering the ground before there is any failure to do the required work, and while the statute gives the exclusive possession to the senior locator, any number of locations may be made and rights initiated at any time prior to the one at which the statute states that the claim shall be subject' to relocation, and the person who follows the statute and makes the relocation on the 1st day of January will be too late, and may find -that the right to locate after failure to do the work has been acquired by one of several others in the order of their locations previously made and before the work was required to be done by the original locator. The one who located six or eleven months before the time in which the work was required to be done had expired would have a better right than the one who had located one or five months in advance of such time; but, if the former failed to do the required work on his part, the right would become initiated in the latter, which would preyail over anyone who relocated the ground on the 1st day of January, the time in which it is made relocatable by statute if the annual work is not done. Fraud, would be encouraged, and the door opened for the evasion of the annual work, the purpose of which is to require the owner to develop the claim at least to that extent, or render his right subject to forfeiture and the claim to relocation: If others could initiate relocations on valid and existing claims, the question would arise whether the owner could relocate before they had lapsed, and if he could not, as an exception to the rule that others could, he would be tempted to have some one relocate for him in order to avoid doing the work. For the reasons stated, and as the Uhlig opinion does not mention Belk v. Meagher, and does not express an intention to overrule the principle therein announced, and affirmed in other decisions rendered about the same time, we do not think a result- so revolutionary was intended to apply in cases-generally, and that the Uhlig decision is applicable only to its own particular circumstances. It has already been so held, or that at most it is not controlling further than in actions in connection with proceedings for obtaining patents, by a number of courts and text-writers, and, so far as we are aware, by all who have determined that question.

In Montagne v. Labay, 2 Alaska, 575, the Uhlig case was examined, and it was held that it applies only in adverse proceedings, and only within its own limited sphere of exceptional facts, and Belk v. Meagher was followed, and held not to be overruled. In Hoban v. Boyer, 37 Colo. 185, 85 Pac. 837, decided more than a year after the Uhlig case, the Supreme Court of Colorado continued to adhere to the rule in Belk v. Meagher. In Lockhart v. Farrell (Utah) 86 Pac. 1081, the Supreme Court of Utah, the one by- which Lavagnino v. Uhlig had been determined, said regarding the decision by the Supreme Court of the United States in that case: "Giving the Lavagnino case the construction contended for by the respondent is, in effect, to make it overrule Belk v. Meagher and Gwillim v. Donnellan, and to render it in conflict with the decisions of both federal and state courts on the question. We do not believe any such result was intended by that decision. Likewise, to give it the meaning contended' for renders it in conflict with the more recent decision of Brown v. Gurney” In a note in 68 L. R. A. 842-845, the Belk, Uhlig, and other cases are considered, and at page 837 appears the statement that "it is difficult to reconcile the decisions holding that one who relocates the claim after the original locator is in default in his assessment work will prevail over one who attempted to relocate the claim before the time for the performance of the assessment work had expired with the principle of the decision of the Supreme Court of the United States in the recent case of Lavagnino v. Uhlig, although it is not probable that the doctrine of these cases will be disturbed in consequence of that decision.”

Numerous decisions in the state and federal courts in the mining states and territories from the Mexican border to the Canadian line, apparently without exception, support Belk v. Meagher and Clipper Mining Co. v. Eli Mining-Company, supra, and Gwillim v. Donnellan, 115 U. S. 49, 5 Sup. Ct. 1112, 29 L. Ed. 348, in which it was said: "If, when one. enters on land to make a location, there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as a bar to the second.” . Quoting with approval from the opinion in the Belk case, Justice Hawley, speaking for this court, in Rose v. Richmond, 17 Nev. 57, said: "A relocation on lands actually covered at the time by another valid and subsisting location is void; and this, not only against the prior locator, but all the world, because the law allows no such thing to be done!’ In one end of the balance we have only the Uhlig case, based on a section of the Revised Statutes which has no bearing on the question involved; and against this we have the numerous decisions, cited and uneited, supporting Belk v. Meagher, including our own in Rose v. Richmond Mining Co., and the statutes which are clearly and directly applicable, and which would have to be overruled in order to maintain the judgment.

After the court had sustained an objection to the offer of appellants to prove that the notices of location were posted on the Portlands, and that they were valid* existing claims, covering the ground at the time the Unions were located,they asked the court to admit the evidence subject to objection and to a motion to strike it out, so that its admissibility could be considered -more carefully later; but the court refused to receive, it, and consequently there is nothing in the record to show what acts were performed toward locating the Portlands. If they were located by posting the requisite notices on July 1, 1905, and by the proper marking of their boundaries within ninety days thereafter, the right to the ground covered by them would relate back to the time of the posting of the notices, and would in effect have been a segregation of the land from the public domain, so that the Unions could not have been validly located or initiated upon it on the 24th and 25th days of July, nor until after there was a failure to do the work required by the state statute to be done within ninety days from the posting of the notices. But if the' Portland notices were so posted, and the claims were not staked or monumented within ninety days thereafter, then we think the locations were not completed under the act of Congress and the state statute, and, the land not having been marked within that period, so that its boundaries could be traced, it was not segregated from the public domain, although such posting carried the right to define the boundaries within ninety days. The period for this purpose has since been shortened by an act of the legislature to twenty days. (Stats. 1907, p. 419, c. 194.)

Erhart v. Boaro, 113 U. S. 530, 5 Sup. Ct. 561, 28 L. Ed. 1113, cited by appellants, is distinguishable; for it was said in the statement of facts there that "the evidence tended to show that, within ninety days from the discovery of the lode by Carroll, one French, on behalf of the plaintiff and Carroll, secretly caused the boundaries of the claim to be marked.” It was correctly held there that the forcible eviction of the discoverer and locator from the vein or lode before the sinking of the shaft required by the Colorado statute and the prevention of his reentry by threats of violence excuse him, as against the party keeping him out of possession, so long as he is kept out of it, from sinking the shaft required. There is no doubt that, if the locator discovered a vein and filed proper notices on tbe Portlands on the unappropriated public domain, he was entitled to go on tbe ground and mark the boundaries, and in doing so float the locations and do the required work; but, if he never did anything but post the notices, it would seem that no piece of ground was ever defined for segregation • from the public domain, so as to notify or warn off others, or prevent the initiation of locations which would be good against a later one.

Wejfind no errors in the record, except those resulting in different ways from the conclusion of the district court to adhere to the opinion in Lavagnino v. Uhlig. Upon the trial objection was sustained to evidence regarding the sinking of a shaft ten feet deep, or its equivalent, on the Unions, and the filing of certificates of location was objected to and withdrawn, because the work was not done and the certificates were not filed before this action was begun; and it is contended that proof of this work and the filing of those certificates were essential to plaintiffs’ recovery. There was no supplemental complaint or pleading alleging that the work was done or completed or that the certificates were filed after the commencement of the suit to warrant its admission. We have recently held in the case of Ford v. Campbell, 29 Nev. 578, that the filing of a certificate of location is not essential to the validity of the claim, but relates to matters of proof. If the Portlands were not valid and existing locations at the time the Unions were located,’ and the Unions were located on the unappropriated public domain by posting notices and marking their boundaries in accordance with law, respondents would have become entitled to hold them for the ninety days allowed for doing the work, and by instituting this suit prior to that time could recover a judgment for possession and damages to the end of that period. If, under these circumstances, respondents failed to do the required work within ninety days, the claims would become subject to relocation by the appellants or others.

The court sustained objections to a series of questions by which it may be surmised that defendants sought to prove, upon the cross-examination of plaintiffs’ witnesses, that the Portland notices were posted on the ground at the time the Unions were located. The court properly limited the cross-examination to the matters brought out in the direct examination. This did not prevent defendants from making the witnesses their own after plaintiffs had closed their case in chief, nor the court from then allowing, in its discretion, a rigid examination if they were hostile.

The judgment is set aside, and the cause is remanded for a new trial, upon which defendants will be allowed to introduce evidence to show that at the time the Unions were lopated the ground was covered by the Portlands as valid and existing locations made by posting the requisite notices and by the defining of their boundaries within ninety days thereafter, and that by failure to do- the work required by the state statutes the Portlands had lapsed at the time the Liberty and Justice claims were located.