Overman Silver Mining Co. v. American Mining Co.

7 Nev. 312

• Court: Nevada Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinions

By the Court,

Garber, J.:

The certificate to the statement reads: “ I hereby certify that the foregoing is the settled and engrossed statement on motion for new trial of the above entitled cause. Virginia, June 24th, 1871. Richard Rising, District Judge.” The respondent contends that this fails to show even a substantial Compliance with the statute, which requires that, when a statement is settled by the judge, it shall be accompanied with his certificate that the same has been allowed by him, and is correct.

It is much better and safer to follow the very language of the statute, but the law does not exact such a literal compliance. A substantial compliance entitles the statement to consideration, and such, we think, is here shown. Allowing proper credit to the judge for official knqwledge and fidelity, and giving proper effect to the legal presumption that he did his duty, it appears, from this certificate, that a statement was proposed by the plaintiff; that it was not satisfactory to the defendant, and that consequently amendments were filed; that on due notice the judge considered the same, and passed upon the correctness and propriety of the respective claims and assertions of the parties in regard to what actually transpired at the trial, allowing such amendments as made the statement conform to the truth; and that the document in question is a fair and correct copy of such statement as amended. When the judge certifies that he has settled this statement, he in effect certifies that it is a true and correct statement. The fair and reasonable presumption is, that, in settling it, he made it conform to the truth. Construing the whole statute together, with reference to its general scope' and object, it is evident that it was contemplated that where no amendments are filed, the truth of the statement proposed on motion for new trial is to be assumed. In case of dispute as to its correctness, the judge is to decide, and his decision when made is prima facie correct. The express requirement that the certificate shall affirm the correctness of the statement, does not preclude us from recognizing such presumptions as fairly arise from the language actually employed. This has been frequently held in the analogous case of a certificate of the acknowledgment of a deed. For instance, the word “ known” has been considered the equivalent of the words “ personally known,” on the ground that personal knowledge is implied, unless negatived by a further statement that such knowledge comes from information. ¡, The omission of the words “ undue influence” has been held not to vitiate a certificate containing the other words required, and which, in themselves, negatived the existence of undue influence. So, where the statute required the certificate to state the acknowledgment of the party that he executed the deed freely and voluntarily, a certificate of his acknowledgment that he executed it was held sufficient, on the ground that the voluntary execution of the deed must be presumed from the fact that it was acknowledged that he executed the same. 22 Iowa, 147; 9 Mo. 522; 8 Cal. 87, 584; 13 Ib. 83; 26 Miss. 574; 4 Halsted, 226; 3 Dana, 114.

The only assignment of error which it is necessary to consider, is based upon the following exception: “ The plaintiff excepted to the portion of the charge which reads: ‘ E. When boundaries have been established, defining and denoting the size and limits of the claim upon the surface, and for a long period of time have been recognized as such, the extent of the claim will be confined to the extent as manifested by such surface boundaries.’ ” The grounds stated were, that the instruction disregards the size and limits of the claim as located and recorded, and that the period of time mentioned is indefinite, and that it is not stated by whom such boundaries should have been recognized, and that the same was calculated to mislead the jury. The respondent contends “ that this portion of the charge must be read and considered in connection with the balance of it; and, that when so read, it declares the correct doctrine and could not have misled the jury.” We will consider it, then, in connection with the matter pertinent thereto disclosed in other portions of the record. The jury were instructed as’follows : “ The subject of controversy in this action is 400 feet of the quartz ledge described in the complaint. The matter of title and possession of this ground is the material issue submitted to your consideration. Persons designing to appropriate a mining claim are required by the mining laws to establish the boundaries, denoting the claim on the ground by planting stakes, and the recordation of a notice of location, so that the public maybe apprised of the particular claim made and its extent. Each of the parties to this suit claims the disputed ground by virtue of locations of the quartz ledge made by their predecessors. The rights of these parties are confined and limited to such ground and ledge as was originally located, claimed and acquired by the locations and appropriations. You must ascertain and determine from the evidence what quartz ledge or ledges were originally located and claimed, and their rights will be in accordance. The acts, declarations and works of the locators of the respective claims and all circumstances attending the locations can be taken into consideration by you, in passing upon this question. If you should believe that the Overman claim was located for the ledge in controversy, as also that of the North American claim, and the locations conflict upon the ground, the superior and paramount location and possessory right will prevail, to the extent of the prior right in the party, as it existed at the time of the commencement of this suit.” Afterward, in the charge, occurs the portion “ E ” above set forth.

The plaintiff and the defendant claim respectively portions of the Comstock lode. The northern boundary of the defendant’s claim is the southern boundary of the plaintiff’s claim. The dispute is as to the locality of the dividing line. The plaintiff introduced evidence tending to prove that, prior to the location of the defendant’s claim, the predecessors of the plaintiff located the Overman; that they planted a southern stake far enough south to include the ground in controversy, and recorded a notice the description in which also included the disputed ground. The defendant introduced testimony tending to show that said south stake of the Overman was not originally planted far enough south to embrace the disputed ground; and other testimony tending to show (or -which a jury, thus instructed, may have believed themselves entitled to consider as evidence) that, even if it were originally so planted, what the defendant claims as the southern boundary of the Overman had been subsequently and prior to the commencement of'this action, fixed and recognized as the true boundary line.

This testimony consisted, in part, of declarations made by successive superintendents and officers of the plaintiff. For example, McCullough testified that in 1869, just before he ceased to be superintendent, he supposed the south line had been fixed at a point excluding the disputed ground. The witness Hunt was asked by the defendant this question: “ Did Mr. Arrington, the president of the Overman, at any time while such president, point out to you where the south stake of the Overman had been.” The plaintiff objected to the question, on the ground that Arrington as president could not fix a boundary binding upon or affecting the Overman Company; that his declarations as to boundaries were unauthorized and incompetent to establish the boundaries or affect the title of the corporation. The objection was overruled, and the witness answered that Arrington pointed out the place as being at the locality for which the defendant contended. Similar objections were overruled to questions which elicited testimony showing that, long after the original location of the Overman, superintendents of the plaintiff pointed out the south boundary of its claim as being, at the times of the pointing out, where the defendant would have it. If the portion of the charge marked “ E ” applies to, or was apt to be understood by the jury to refer to any fixing or recognition of boundaries, occurring after the consummation of the original location and appropriation of the Overman, it was clearly so erroneous as to justify a reversal. No one would contend that, after a vested right to a mining claim has been acquired by a compliance with the laws, it is held by so precarious a tenure as that indicated, or that a corporation succeeding to such a right of property holds it as tenant at the will of its own superintendent and officers. But, in the light of the foregoing extracts from the record, the respondent contends that “ the jury must have understood the court as referring to the original locators and their acts of defining boundaries, and consequently wmre not misled by this portion of the charge.” In other words, the contention is, that this was merely a repetition of former portions of the charge. We think the inference is the other way. The plaintiff contended that it was entitled to all the ground called for by the recorded notice, irrespective of the position of the original stakes, and without regard to the question whether any stakes were ever planted, defining the boundaries on the surface. The first portion of the charge explicitly denied this proposition,'•and informed the .jury that the plaintiff was entitled to no more ground than was originally located and segregated by the-concurrent acts of planting stakes and recording a notice. If the instruction had stopped here, the jury would have been at liberty to give to the plaintiff all the ground which, “ by considering the acts, declarations and works of the locators of the respective claims, and all the circumstances attending the locations,” they should ascertain to have been embraced within the original location. But the court goes further, and next tells them, in effect, that the right of the plaintiff is also limited by its extent, as it existed at the time of suit .brought. That is, that the right is not to be in accordance with the original location, but in accordance with the original location as modified by subsequent fixing and recognition of boundaries. For it was not pretended, nor was evidence introduced to show, that in any other way the extent of the claim had been reduced below its original dimensions. .And they are finally told, in unqualified language, that the extent of the claim must be confined within the boundaries as established and recognized no matter when, for how long, or by whom; and this, after testimony almost if not quito as. vague and indefinite as the terms of the instruction, and which might be construed as tending to show such a fixing and recognition of boundaries long subsequent to the original location had been admitted; and against a specific objection, then and there made, that the instruction was liable to be misunderstood by the jury, as disregarding the size of the claim as located and recorded, and as giving effect to a temporary and casual recognition of such boundaries by unauthorized persons. We cannot say, on this record, that the jury may not have understood this instruction to mean that although, by the original location, the plaintiff’s predecessors acquired a right to the disputed ground, yet that if' different boundaries (whenever or by whomsoever fixed or established) including less ground had been long recognized by successive officers of the plaintiff, such recognized boundaries must control; and, for aught we know, they may have decided the case on this theory— 'thus giving effect to the whole charge, as imposing two distinct limitations, neither of which could be disregarded in determining the extent of the claim; while, according to the respondent’s construction of the charge, no effect whatever is given to Jhe- element of long recognition introduced by the portion under consideration. The question of the admissibility of the declarations of Arrington and others is of great practical importance, and has not been fully argued. The authorities seem to be against the admissibility of those of Arrington. Vide 13 Conn. 173; 48 Penn. 177; 14 Gray, 504; 9 Rich. (Law) 473. But we do not decide the point. For the error in overruling the objections made to instruction “E,” the order appealed from is reversed, and the cause remanded for a new trial.