Mining Company v. Taylor

ERROR to the Circuit Court of the United States for the District of Nevada.

This was an action of ejectment brought Dec. 23, 1874, by James D. Taylor against The Union Consolidated Silver Mining Company, to recover the possession of an undivided interest, equal to five feet, of a mining claim and lode, part of the Comstock lode, situate in the Virginia Mining District, in Storey County, State of Nevada. Under an agreement of the parties the case was, without a jury, tried by the court, which found as facts that the parties were tenants in common of the mining claim known as the Union claim, for an undivided interest in which the suit was brought; that they claimed and derived title from the same source, namely, Payne and Cook, the original locators of the claim; that one Solomon Wood, on the eleventh day of October, 1862, was the owner of at least an undivided fifty feet of the claim, having derived his title thereto regularly from the original locators, and that on that day he sold and conveyed by deed to the plaintiff an undivided five feet of the claim, describing it as 'five undivided feet interest in the claims of the Union Company, located upon the Comstock silver lode; said claims consist of three hundred feet, bounded north by the claims of the Sierra Nevada Silver Mining Company, and on the south by the claims of the Ophir Silver Mining Company;' that during the years 1860, 1861, 1862, 1863, and 1864, the original locators of the Union claim, and others deriving title from them, including Wood, the immediate grantor of the plaintiff, and the plaintiff himself, expended over $30,000 in prospecting and developing the claim, though the plaintiff personally had done no work upon it since 1863, nor had any been done for him, except so far as the work done by his co-tenants can be considered work done for him; that after the plaintiff's title had been acquired, namely, on the thirtieth day of September, 1863, C. H. Reynolds and others, all of whom had derived title from the original locators of the mining claim, sold and conveyed all their interests therein to a California corporation, styled the Union Gold and Silver Mining Company; and that, on the twenty-seventh day of May, 1874, that company sold and conveyed all its interest in the Union claim to the defendant, a California corporation, organized in and under the laws of that State.

The court further found that the defendant and its grantors had been in possession of the ground in controversy during more than two years before the commencement of this action, and were in possession when the suit was brought, and had been for more than five months before that time in possession of the Union claim, which extends on the Comstock lode a distance of three hundred feet, including the ground in dispute, and that the plaintiff had made no demand to be let into possession of the premises before commencing his action, but that the defendant was in the exclusive adverse possession before that time, and had in fact ousted the plaintiff from the possession.

In the course of the trial the company excepted to the admission of exhibits 'A' and 'C,' and certain mining rules and regulations. Judgment was rendered for the plaintiff. The company thereupon sued out this writ, and assigns for error that the court below erred: 1st, In admitting as evidence said exhibits and said rules; 2d, in ruling that the plaintiff was entitled to recover; 3d, in giving judgment upon the facts found for five instead of two and a half feet; 4th, in giving judgment for the plaintiff, when the finding, which is special, and should therefore contain every fact essential to a recovery, does not show such facts of conveyance, possession, &c., as result necessarily in the legal conclusion that the plaintiff was entitled to the property sued for. Exhibit A.

'COOK & PAYNE to A. KENNEDY & CO.

'VIRGINIA CITY, Sept. 20, 1859.

'This is to certify that we, D. B. Cook, J. Cook, and E. Payne, have this day sold, bargained, and conveyed all our rights to and interest in a certain set of mining claims to A. Kennedy & Co., said claims being situated as follows: lying and being in the Virginia district north of the Comstock claims and situated on the Comstock and Penrod vein, for and in consideration of which A. Kennedy & Co. agree to prospect the same thoroughly, and when pay dirt is struck, then Cook, Payne, & Co. agree to pay one-half of the expense and come in equal partners to the same, Kennedy & Co. receiving one undivided half of six hundred feet.

'D. B. COOK.

'JAMES COOK.

'E. PAYNE.

'Witness: S. McFADDEN.

'Filed Sept. 7, '60, at 2 1/2 P.M.

'Rec. Sept. 8, '60, at 3 P.M., p. 548, Vol. B, Kinsey's records.' Exhibit C.

'GOLD HILL, UTAH TERRITORY, July 20, 1859.

'This is _____ show that I, Edward Payne, have this day admitted David B. Cook into the claim north of the Comstock and Co.'s stakes as an equal partner in the six hundred feet of the quartz lead, and known as the Comstock lead, and running north of the Comstock stakes. And als-give the power to manage that claim to work or let as he D. B. Cook sees fit.

'EDWARD PAYNE.

'JAMES COOK.'

Mr. Harry I. Thornton and Mr. H. L. Smoot for the plaintiff in error.

Mr. W. E. F. Deal, contra.

MR. JUSTICE STRONG, after stating the case, delivered the opinion of the court.