De Lamar's Nevada Gold Mining Company v. Nesbitt

This was a suit begun in the district court for the fourth judicial district of Nevada by Nesbitt, as part owner of the Fraction mine, against one William Davidson, the alleged locator of the Sleeper mining claim, covering the same ground as the Fraction mine, to quiet plaintiff's title and that of his cotenants to the Fraction mine, and to recover a money judgment against the defendant.

The complaint alleged that the plaintiff and his co-owners were tenants in common, and since May 15, 1892, had been in possession of the Fraction mining claim, pursuant to the laws of the United States, and that the defendant also claimed a right to possession upon the alleged location of a certain mining claim called by him the Sleeper mine; that such location was made subsequent to the location of the Fraction mine, and that the plaintiff had protested in the land office at Carson City against the issuance of a patent to the defendant.

The answer denied the ownership and possession of the plaintiff of the Fraction mine, and alleged as a defense the invalidity of the proceedings under which Nesbitt and his cotenants had acquired the titles of the original locators to the Fraction mine.

The case came on for trial before the court without a jury, and resulted in a judgment for the plaintiff, whereby it was decreed that the title of plaintiff and his cotenants to the Fraction mine be quieted, and the claim of the defendant to that portion of the Sleeper mine embraced within the boundary lines of the Fraction mine be rejected; with a further decree for the recovery of certain incidental fees and costs. Upon motion for a new trial it was ordered that De Lamar's Nevada Gold Mining Company be substituted as defendant in the place of Davidson, deceased, and that Messrs. J. H. Ralston and ''Wm. M. Stewart'' for plaintiff in error.

Messrs. Walter A. Johnston and George S. Sawyer for defendant in error.

Mr. Justice Brown delivered the opinion of the court: