Abbott v. Primeaux

16 Nev. 361

Opinion

By the Court,

Belenap, J.:

In an action of ejectment for a lot of land in the town of Tuscarora, in Elko county, in which the answer admitted the possession of the defendant, plaintiffs’ evidence showed that they deraigned title through a patent issued to their predecessor in interest by the government of the United States for a mining claim embracing' the premises in controversy. .

Thereupon plaintiffs rested their case, and the court, upon defendant’s motion, nonsuited plaintiffs for the reason, “that the evidence showed the ground in dispute to be the surface ground of a mining claim, and that it had not been alleged or proven that the plaintiffs required said ground, or had any use for the same in the working of said mining claim.”

From this order and judgment of nonsuit the appeal is taken.

The patent contains no reservation or qualification whatever, but unconditionally conveys the premises to the predecessor in interest of plaintiffs. The title thus presented in connection with the defendant’s admitted possession, made a prima facie case for plaintiffs. "Whatever bearing the question of the necessity of the use of the ground by plaintiffs for the purpose of working their mining claim may have had upon the controversy, depended upon the nature and character of defendant’s claim to the premises.

Upon the facts before the" district court at the hearing of the motion for nonsuit, it did not appear what the nature of defendant’s claim was, whether he had a legal or equitable, or any title, or that he was not a mere trespasser.

Judgment reversed.