Robinson v. Imperial Silver Mining Co.

5 Nev. 44

Opinions

By the Court,

Lewis, C. J.:

In the month of September, a.d. 1859, one W. R. Johnson entered upon a tract of unoccupied land, lying on the Carson River, in the county of Lyon; erected some kind of a cabin • on the premises; placed a notice on a tree on the bank of the river, in which it was stated that he claimed a certain quantity of land, and also the water of the river; and on the' twenty-third day of the next month he had a description of his land, with a notice that he claimed the same, recorded in the office of the County Recorder. In addition to this he built a temporary dam across the river, within the boundaries of the land thus claimed by him: Shortly after — that is in November or December — he left the premises and went to California, as it was reported, for his family, intending to bring them to this State. In a few weeks after reaching California he wrote to one Holmes, who was living near his claim, requesting him to do some work on it for him, without specifying what he wished done — his object, however, evidently being to have work done to indicate his intention to continue his claim to the land and water privilege.

But the persons from whom the defendant derives title, and who were then making some claim to the premises, being informed of this letter, forbade Holmes doing any work for Johnson — and none was done. Whether Holmes was deterred from complying with Johnson’s request by reason of the threats of those persons or not, or whether he ever had any intention of doing anything, is not clearly shown by the record; nor in the view which we take of this very case is it of any consequence. Nothing further appears to have been done by Johnson to perfect his claim thus begun; but what he acquired, if anything, was subsequently conveyed to one DeGroot, who afterwards secured a title to the premises here in dispute, by means of a survey made in accordance with statute. We have concluded to treat the acts of Johnson, and the conveyance by him to DeGroot, as amounting to nothing, and as giving the latter no right Avhatever — and so to let the plaintiff’s title rest entirely upon the acts of DeGroot. Thus, it will not be necessary to refer further to the acts of Johnson, or to determine -what rights, if any, he acquired by means of the few acts done by him. He and his title may therefore be finally dismissed from further consideration in this case.

On the third day of December, whilst he was in California, two persons, Black and Eastman, took steps to acquire a water privilege, or a right to divert a certain quantity of water from the Carson River, through a ditch to be dug across the land claimed by Johnson. As one of the titles relied on by the defendants is derived from these two persons, and as their right or title -was based entirely upon occupation or actual possession, it will be necessary to ascertain whether they had such actual possession or occupation of the premises in dispute, at the time the grantor of the plaintiff entered and secured a title by means of his survey.' If the acts done by Black and Eastman, prior to this survey, were such as to give them actual possession of the land here claimed by the plaintiff, then it must be conceded that the defendant has the better title, and is entitled, to recover.

The first act done by Black and Eastman was to post a notice on a tree standing on the bank of the river, which was in this language : “ Notice is hereby given that we, the undersigned, have this day located a water right, commencing at or near this notice; also a right of way fora ditch of sufficient capacity to carry two thousand inches of water; and the same amount of water — that is, two thousand inches,’ is claimed to fill a ditch of the aforesaid capacity. Said water to be carried in said ditch to the first rocky bend with high banks, about one-fourth of a mile down the river from this notice. Said water and ditch right was located by the undersigned on the third.day of December, a.d. 1859. The undersigned intend to prosecute said work as soon as spring opens.” This notice was signed by Black and Eastman. The valuable portion of the premises — that is, the mill site, is situated below the point here specified as the terminus of the contemplated ditch, and where it was in fact 'terminated — -the mill site being at the lower side of the “ rocky bend ” mentioned in the notice, whilst the ditch terminated at the upper sidé. It will be observed, that there is nothing said in this notice about a claim to land, except a right of way for a ditch. In accordance with this claim, and the intention expressed in the notice, Black and Eastman immediately commenced to construct the ditch — working, however, only on occasional days upon it, so that up to about the fifteenth of May, a.d. 1860 — six months after •(¡he notice was posted, and at the time when the last work was done by them — only about fifteen or twenty days’ work had been done; Black testifying that all the work done upon the ditch, up to that time, could have been done by one man in five or six days— whilst Eastman testifies that fifteen or twenty days’ work had been dote upon it. However that may be, nothing was done by them but the digging of an irregular ditch, running between the point where the notice was posted and the rocky bend — a point just above the defendant’s mill site.' As there was nothing in the notice indicating an intention’ to claim any land for any purpose whatever,so we are perfectly satisfied, from the testimony, that nothing was done at the time towards appropriating any, except (the digging of the ditch. Eastman, who was a witness for the defendant, testified that he thought they claimed some land; but what quantity, or where it was located, seems to have utterly escaped his recollection. The defendant can hardly expect to derive much advantage from a claim, the locality of which cannot be determined by the locators themselves. But Black and Eastman both testify that they intended at some time or .other to build a mill; and that'the water was claimed and the ditch dug with that object in view; and it is claimed by defendants that it was the intention to erect the mill upon the site now occupied by it; that a monument of stones was placed by Black and' Eastman at that point. The ■ evidence, however, does not show when the stones were placed upon the ground— ■whether before or after DeGroot’s survey, and it cannot be presumed that it was before. Admitting, however, that Black and Eastman intended to claim the. premises in dispute, and that the monument of stones was placed there by them .prior to DeGroot’s claim, still, it cannot be held that a few stones thrown together would givé a person actual possession of a tract of land as large as that claimed here, or indeed of any quantity whatever. It must be borne in mind, ’that the digging of this irregular ditch, of which no use whatever had evef been made, or attempted to be made, and through which no water had ever run, except during the season of high water in the river, and the piling of a few stones together at some distance below the lower end of it, is all that had been done by Black and Eastman, when DeGroot entered and made his claim. And all this, except perhaps throwing up the monument of stones, was done by the middle of May; and everything remained in that condition, with nothing further being done until the twentieth of October, when DeGroot’s survey was made. Black and Eastman were not living on the premises, nor had they any definite purpose with respect to the use of the ditch, or as to when, if ever, they would make use of it. Eastman says that the object in doing what work was done, was to show that they had a claim;' that they intended some time or other to build a mill, and so make use of the ditch. Were these acts — that is, the digging of the ditch and the piling up of the monument of stones, sufficient under the law to give Black and Eastman actual possession of the land here claimed? This question involves the entire merits of the case.

We admit that the argument of counsel for appellant against the validity of Johnson’s claim is perfectly satisfactory, but the , same argument and the same authorities relied o?i apply with equal force to the title of Black and Eastman, and to our mind, as completely overthrow and destroy it.

What acts of dominion over public land will, independent of statutory regulations, be sufficient to give a right of possession as against one subsequently entering; or rather, what character of possession of public land is necessary to be shown to enable a claimant relying solely upon possession to recover in ejectment, has perhaps more than any other question received the attention of the Courts of California and this State ; and it may be safely said that it has been uniformly held by them that the possession must be an actual occupation, a complete subjugation to the will and control, apeáis possessio. The mere assertion of title, the casual or occasional doing of some act upon the premises, or the bare marking of boundaries, have never been held sufficient, after the lapse of a sufficient time to enable the claimant to make such enclosures or improvements as may be necessary to give him actual possession. We held in the case of Staininger v. Andrews, (4 Nev. 59) that while a person claiming public land was diligently prosecuting such work as might be necessary to subject it to his dominion or control, he should be deemed in the actual possession as against all persons entering within his marked boundaries and ousting him. Except in such cases, the Courts have uniformly held that nothing but prior actual occupation or possession will be sufficient to authorize a recovery in ejectment, when possession alone is relied on. Thus in Murphy v. Wallingford, (6 Cal. 648) it is said : “ Possession is presumptive evidence of title, but it must be an actual bona fide occupation, a pedis possessio, a subjection to the will and control, as contradistinguished from the mere assertion of title and the exercise of casual acts of ownership. A mere ¿ntry without color of title, accompanied by a survey and -marking of boundaries is not sufficient.” So in Garrison v. Sampson, (15 Cal. 93) Mr. Justice Baldwin speaking for the Court reiterates the rule in this manner : “ The land is public land. It was not taken up by the plaintiff under the Possessory Act of this State, nor was it enclosed. There were a house and a corral on it. Of these he may be said to have been in the actual occupancy. But we cannot see from the proof any right of possession to the whole of the quarter section, or even any claim to it. "We do not understand that the mere fact that a man enters upon a portion of the public land and builds or occupies a house or corral on a small portion of it, gives him any claim to the whole subdivision, even as against one entering upon it without title.” Again, in Coryell v. Gain, (16 Cal. 573) it is said: “ And with the public lands which are not mineral lands, the title as between citizens of the State, where neither connects himself with the government, is considered as vested in the first possessor and to proceed from him. This possession must be actual and not constructive, and the right it confers must be distinguished from the right given by the Possessory Act of the State. That Act, which applies only to lands occupied for cultivation or grazing, authorizes actions for interference with or injuries to the possession of a claim, not exceeding one hundred and sixty acres in extent, where certain steps are taken for the assertion of the claim and to indicate its boundaries. Parties relying upon the rights conferred by this Act must show a compliance with its provisions. They can thus maintain their action without showing an actual inclosure or actual possession of the whole claim. But when reliance is placed, not upon this Act but upon possession of the plaintiff, or of parties through whom he claims, such possession must be shown to have been actual in him or them. By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property.” See, also, the cases referred to in Stain inger v. Andrews, ante. Indeed, that the possession, when that alone is relied on, must be actual and complete, is an expression stereotyped in all cases where this question is discussed, and each succeeding case only serves to strengthen and illustrate the rule. This question has beqp repeatedly submitted to, and .considered by this Court, and it seems impossible to define the requirements of the law, or specify with more clearness or precision the elements of a good possessory title than has already been done in the decisions above referred to.

Tested by the rule announced and exemplified in these cases, had Black and Eastman the actual possession of. the premises in dispute at the time DeGroot entered ? Most certainly they had not. Here was nothing done for a period of eleven months but the digging of an irregular and utterly useless ditch in a boundless waste of unclaimed lands; apparently without a purpose, never used; dug, not with a view to immediate use, but only as the parties themselves testify, to show that they claimed a water privilege, and only diverting water from the river during the season of high water, with nothing but a small monument of stones at some distance from it to indicate an intention to claim any land. In this condition everything remained for a period of five months without a solitary act being done, and probably the parties themselves not having placed foot upon the soil here claimed during that period, when the grantors of the plaintiff entered. Tim ditch was certainly not dug for the purpose of marking the boundaries to any claim of land, nor to indicate that an appropriation of any was intended by the parties. It was unquestionably dug simply for the purpose of diverting water from the river ; where or how it ivas to be used is not stated in the notice, and it will also be observed that no land, but only a “ right of way ” for the ditch, is claimed. The land upon each side of the ditch could without the least conflict with the • intention of Black and Eastman, as expressed in their notice, have been appropriated by others. This ditch, then, should be considered ■simply as an act performed fór the purpose of appropriating water, and as such was its immediate purpose, it should give the persons digging it no other right. An act by which water alone is appropriated, should not be considered an act for the appropriation of land. Land is appropriated by one' character of acts, water by another.

It would be as absurd to say that the digging of a ditch is an appropriation of land sufficient for a mill site, as to say that to appropriate-a mill site would be an appropriation of water for milling purposes. It would hardly be claimed, if Black and Eastman had simply appropriated a mill site, that they could by such appropriation claim also that they had appropriated such quantity of water as they might need for milling purposes. What good reason is there for claiming that the digging of a ditch for the purpose of diverting water from the river was an appropriation of a mill site ? The ditch, if completed within a reasonable time, might have given a right to divert the water as against subsequent claimants — it could give nothing more. This is all that was claimed in the notice, and all that seems to have been attempted to be secured. Admitting, however, all that can be claimed for this ditch, that its immediate purpose was to secure the possession and control of the tract of land here claimed, still it would be impossible, under the decisions, to hold that Black and Eastman were in the actual possession or occupation of it when DeGroot entered. No person going upon the premises could by the most diligent search have ascertained what was claimed. No boundaries were marked, no improvements were to be seen, ho use whatever was being made of the land, nor any indication that there was any intention ever to do so. Did a few. stones thrown together place these persons in actual possession of a tract of land nine hundred feet in length by seven hundred feet in width ? If so, why might they not, by the same monument, claim an indefinite quantity ? Their claim was bounded only by their desires or necessities. "We can see no more reason why such a monument, with a ditch not on the premises, should give actual possession of a mill site, than of a hundred and sixty acres of land. We conclude that in October, when DeGroot entered, Black and Eastman were not in the, actual possession of the premises here claimed, and therefore that the land was vacant and subject to appropriation. But the defendant also relies upon a title acquired from a company called the Mineral Rapids Company, which, it is claimed, located this land in February, a.d. 1860, some months prior to .the DeGroot survey. This company, however, does not appear to have conveyed any land to the defendant. It claimed the right to use and divert the water of Carson River between certain points, as will be seen by the following notice, which was the foundation of the right here conveyed:

“Know all men ■ by these presents, That we, the undersigned,, claim all the water in Carson River embraced and being within the boundaries hereinafter described, to wit: Commencing at a point three hundred and sixty-four rods north of Keller’s log house in Chinatown, by one hundred and twenty-six rods east; said point being on the north line of a tract of land located and surveyed by J. R. Sears and others; following said river up and embracing all the water in said river to '-a point known, as Logan & Holmes’ Quartz Mill, for the purposes and use of machinery or ditches, or for any other uses which we, the claimants, may choose.”,

The deed from the company to the defendant conveys all 'the water right and privilege located as above. This deed may have conveyed whatever right the Mineral Rapids Company may have acquired to the water of the Carson River, but we are unable to see how itj conveyed the premises here in dispute. No land is' described, nor does it appear to have been the intention to convey any. It is simply a deed of a water right and nothing more. But should it be conceded that it was the intention to convey this land, that it is included in the deed, then, we answer, the Mineral Rapids Company never acquired any right or possession whatever of it, and hence could convey no title.

It appears that, at the time mentioned the company had a private survey made of a tract of land for a town site, which embraced the premises here claimed. But it is admitted that the company, knowing of Black and Eastman’s claim, did not intend to interfere with their rights, nor make any claim adverse to them, and so relinquished all right to that portion of the land claimed in this action. In fact, they never claimed to be in possession of, or have any title to it. The balance of the survey tract was subdivided into lots, but this portion of it was not so plotted on the map, or. subdivided as a part of the town site. All the evidence shows that the Mineral Rapids Company made no claim. to this tract. Not intending to claim it, and "having made no improvements thereon, it can hardly be said that any title was acquired. Even if it was intended to make such claim, still the same objection may be urged to its title that is urged against Black and Eastman’s, there was no actual possession of it. If it were possible for this company to acquire title to 'land which it did not intend to claim, still something more than iñtention was necessary to give it such title, or to place it in the actual possession of it against a subsequent claimant. As this portion of their survey was not subdivided, nor intended as a portion of the town site, it was certainly as necessary to inclose it and to make some use of it, as in any case. Without intending to be understood as holding that that portion of the land which was intended to be taken up for a town site should have been fenced, it was certainly necessary to inclose or make some appropriate improvements upon that portion of the land within the survey which was not intended for a town site. The subdividing, staking off, and sale of lots might possibly be deemed sufficient acts of dominion to constitute actual possession of a town site, but such acts could give possession of nothing beyond the limits of such acts, or the town lots themselves. With respect to the tract of land here claimed nothing was done by the company but to survey the outer lines. It remained in this condition, with no act of ownership exercised over it, from February to the time of DeGroot’s ■ entry, a period of about eight months. The survey made by this company, it must be borne in mind, was not in accordance with the Utah statutes, and had none of the elements of an official survey. Whatever may have been its right with respect to the town lots, it is .clear beyond all question that the company had not the actual possession or occupation of this land: First, because it never claimed it; and, second, if it did it made no such improvements upon or inclosures of it as to give it the actual possession at the time of DeGroot’s entry. The deed from it to the defendant, therefore, conveyed no right to the land here in controversy.

Whilst the land was thus unoccupied, with no visible evidence of any claim being made to it, except an irregular ditch and a small monument of stones, DeGroot, the grantor of the plaintiff, entered upon it, and in compliance with the statute law then in force, had it surveyed by the County Surveyor; had the survey recorded, and obtained from the Surveyor a certificate of that fact. The law authorising such survey, provided that “ the County Surveyor shall within thirty days after completing any survey mate true copies or diagrams of the same, and transmit the same to the Surveyor-General, and one to the County Recorder, and give a certificate of such survey to the person for whom it was made, describing the ■ tract, block, or lot, and number of acres contained, and such certificate shall be title of possession in the person or persons holding the same.” The statute further declared that “ one year shall be allowed to persons having land surveyed to inclose and fence the same, and on their failing to inclose said land within one year, their'title to said land shall be nullified, and the land be common, and may be surveyed to any person applying for the same.” From these two sections, composed with but little regard for the rules of English grammar, it will be seen that a certificate of an official survey ivas made “ title of possession ” for one year; that the person having such certificate was tó be deemed in possession of the surveyed premises for one year, but not beyond that. After the expiration of the year the land could only be held by means of an inclosure. DeGroot obtained a certificate from the County Surveyor in accordance with this Act on the twenty-first of October, A.D. 1860, and within one year began to fence the land as required by the latter section above quoted. But whilst so engaged he was forcibly stopped by Black and Eastman, and himself and employes driven from the premises. For this reason the fence was never completed. Thus by a compliance with the law, so far as he could or was permitted, DeGroot acquired a title which entitled him to the possession of the land in dispute, as against all persons except the General Government. It is argued, however, against this title that the survey was not actually made by the County Surveyor, but by persons employed by him and acting under’ his directions. We see no merit in this proposition. It is true, the County Surveyor did not perform the manual labor of making the survey nor could that have been expected of him by the Legislature. It was made under his supervision and direction and he gave the proper certificate which under the statute constituted the title. It was an official act in all its essential features. When duties of this kind are required to be performed by an officer it is not expected that the labor is entirely to be performed by him. ■ If it be adopted by the officer as his act, and certified to by -him as such, the law is virtually complied with. Another objection made to this DeGroot claim is that although he commenced to fence the land within the year, yet' the fence which he commenced to build, even if completed, would not have been sufficient to give him actual possession of the premises. Counsel seem to think that Black and Eastman and the Mineral Rapids Company could have an actual possession, and be deemed in the occupation of the land without any inclosure whatever, or eyen marking the boundaries, but that the grantor of the plaintiff could not secure such possession even by complete inclosure. We can hardly think that counsel rely upon this point with much confidence in its merit. DeGroot had under the statute, one full year after the survey to inclose his claim. He began in good faith to comply with its requirements, but was forcibly prevented by the grantors of the defendant. It cannot be presumed in favor of those who by violénce stopped the fencing, that it would not have been sufficient to answer all purposes. The presumption, if any can be indulged in, is that an inclosure in all respects sufficient would have been completed. If it were admitted that the fence, as it was being built, would not have been sufficient, still how is it to be known that if DeGroot had not been interfered with, he would not before the expiration of the year have made it complete, and'of the proper height? The .grantors of the defendant having ousted DeGroot before the expiration of the time limited for him to make an inclosure, cannot now be allowed to derive any advantage from his failure to comply with the law in this respect; nor is the defendant who is their grantee in any better position. The law permits no person to profit by his own wrong. So far as this case is concerned, then, the DeGroot title must be considered as good as if he had inclosed his land with a sufficient fence within the time limited by law. (Alford v. Dewin, 1 Nev. 207.) He has therefore the better title, and as the plaintiff claims from him we see no reason thus far why he should not recover.

The next question discussed in this case is that raised upon the Statute, of Limitations, the defendant pleading an adverse possession in itself for over five years. But we are satisfied this defense is entirely unavailing to the defendant, it being a foreign corporation, and hence not entitled to plead the statute. ■ It having no existence within this State, and the Courts not having complete jurisdiction over it, is brought within the provisions of section twenty-one of the statute, which declares: “ If, when the cause of action shall accrue against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State; and- if after the cause of action shall have accrued he depart the State, the time of his absence shall not be part of the time limited for the commencement of the action.” That foreign corporations, which may never have had a legal existence within the State, are included within exceptions or statutes of this kind, is a question now very firmly settled by the authorities. Thus, in the case of Olcott v. The Tioga Railroad Company, (20 New York, 210) the. Court of Appeals, upon a very thorough consider- ' ation of the question, and full. examination of authorities, came to the conclusion that a foreign corporation came within the provisions of a statute similar to ours, and hence could not avail itself of thé bar of the statute. The Court concluded the discussion of the question in this language, every -word of which is pertinent in this case: “ The course of adjudications established by these cases authorizes us, I think, to carry out the obvious intention of the Legislature in'the statute before us. We can see no motive which it could have had for discriminating in favor of a foreign corporation, or any indication of an intention so- to discriminate. The language of the exception in the first branch of section twenty-seven is not in all respects congruous to the case of a corporation, but there is an incongruity nearly as great in applying the phrase £ returning into this State ’ to a person who had never resided here ; and quite as great in accommodating it to the case of one who had died abroad, and who could not by any possibility return. If the consequence is that a corporation in another State or country cannot enjoy the advantage -of pur limitation, the same is true of a natural person domiciled abroad, and where circumstances prevent his coming within our jurisdiction. The policy of our law is, that no persons, natural or artificial, who are thus circumstanced, can impute laches to their creditors or those claiming to have rights of action against them in not prosecuting them in the foreign jurisdiction where they reside. It was equitable and in accordance with the policy of the law of limitations, that when the reason for excusing the creditor from the use of diligence should cease by the debtor coming into the State, the obligation to use diligence should again attach. In engrafting this policy upon the statute the Legislature made use of general words, which, though adequate to describe a corporation, did not contain any language referring specifically to a debtor who could not by its Constitution pass from one territorial jurisdiction to another.”

It is, however, argued here, that even if section twenty-one does include foreign corporations, its provisions have application only to personal actions, that the section has no reference to and does not apply to real actions accruing within this State. It is not claimed, nor indeed can it be, that there is anything in the language of the section to authorize any such construction or limitation of its provisions. The language employed by the Legislature is as broad and comprehensive with respect to the kind of actions to which the section shall apply as need be, and as clearly includes real actions as personal. If it were the intention to restrict its provisions to personal actions, it is reasonable to presume that appropriate language would have been used for that purpose. The Act in whibh the section is found fixes the time for commencing all kinds of actions, and section twenty-one certainly appears to make an exception to the entire Act. So far as the language of the section is concerned there is no more reason for holding that it applies only to personal actions than that it applies only to real actions. But some weight ■is given to the position of the section in the Act as favoring.this proposition. It seems to us its position rather negatives any such conclusion. It is placed in position with sections that are unquestionably general in their character, evidently'-applying to all kinds of actions. Thus, section twenty declares, when, within the meaning of the Act, an action shall be deemed commenced so as to take it out of the statute, and unquestionably applies to all actions. Section twenty-two is in express terms made applicable to personal actions, and then section twenty-three is evidently a general sec tion, providing that when a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, the canse of action survives, an action may be commenced by his representatives after the expiration of that time, and within one year from the death. - The section’s posición in the Act certainly does not seem to favor the proposition of counsel for appellant. ' ,

It is true, in all cases for the recovery of the possession of land, an action might be brought against the agents by whom the possession may be held, for the corporation. Such action, however, would be unavailing in determining the title or claim of the real party in interest. But even if.it were, that is no reason why the Courts should place a strained and unnatural conclusion upon the plain language of the Legislature. The real claimant — the foreign corporation — is not within‘the territorial jurisdiction of the Courts of this State, although its agents may be ; and this is the real reason why it has been deemed proper to provide, that when a cause of action has accrued against a person, the time of his absence from the State, where the plaintiff resides, shall not be computed in the period of limitation. This precise question was raised and passed upon by the Supreme Court of Indiana, in the case of Lagow v. Neilson, (10 Ind. 183) the Court holding that a'section, substantially like section twenty-one of our Act, included real as well as personal actions. “ It is contended,” say the Court, “ that this section was intended to apply to personal actions, and not to those ■for the recovery of real property. We are not inclined to adopt that construction. As contended, the concluding branch of the section should not be so construed as to allow the law of limitations of a sister State to be used here in regard to actions for the realty; and it may be that for the recovery of real estate, a party is never prevented from bringing liis suit by the mere residence of any claimant or owner — still, these conclusions not being inconsistent with the very explicit language used in the first branch of the enactment, cannot be allowed to control it. The phrase ‘ shall not be competent in any of the periods of limitation,’ evidently refers to all the periods of limitations definitely fixed by the statute— hence, there seems to be no room left for construction.” •

Chief Justice Beatty, in the case of the Chollar-Potosi Mining Co. v. Kennedy and Keating, (3 Nev. 361) took a different view of this question; but that case was not decided upon this question, the Court not agreeing with the learned Judge in the opinion entertained by him — so, that case is not authority except so far as the opinion there expressed is concerned, which is certainly entitled to great weight; but we are compelled, upon a careful consideration of the question, to come to a different conclusion. The defendant could not therefore avail itself of the.statute!

It is also argued, that the Court below erred in giving certain instructions at the request of the plaintiff, and in refusing. to give others asked by the -defendant. • The second instruction given by the Court, and which it is claimed is incorrect,'is in this language : “ Under the laws of the Territory of Utah, in force during the year 1860, the certificate of the County Surveyor, of his survey of land to the person for whom it was made, describing the tract surveyed ' and number of acres contained, was the title of possession thereto to the- person or persons holding the same for the period of one year, without', making any improvements upon the land; and such right and title continued without inclosing or fencing, or otherwise improving the same as against any and all persons preventing such fencing and their grantees and successors in interest.” The objection urged to this is, that no exception is made of such lands as might be occupied at the time said survey was made; that the title, given by reason of such survey could only be of land unoccupied at the time it was made. That a survey could give no title as against persons in’the actual possession, when made, may be admitted ; but we have shown that neither Black or Eastman, nor the Mineral Rapids Company, were in the actual possession of the land in dispute at the time DeGroot had his survey made; that it was, in fact, vacant land ; the failure therefore to incorporate an exception with respect to occupied land, in the instruction, could not possibly have injured the defendant. Hence, the giving of the instruction was not an injury of which it can complain, as such instruction could not have misled the-jury to its prejudice! However, we are satisfied that the' first instruction given was incorrect; but it is also perfectly evident, that the verdict is correct, and sup ported by the undisputed facts of the case. Had it been against the plaintiff, it would have been clearly contrary to the evidence. Such being the case, it should not be disturbed.

The rule, we think, is well settled, that a verdict which is undoubtedly right upon the evidence — that is, when so clearly right that if it were the other way it would be considered contrary to the evidence — should not be set aside because of the admission of improper evidence, or the giving of incorrect instructions. (1 Grah. & Waterm. on New Trials, 301; 2 Grah. & Waterm. on New Trials, 634; Levetzhy v. Corning, 33 Cal. 299; Pico v. Stevens, 18 Cal. 376; Fleeson v. Savage Co., 3 Nev. 157.)

The judgment of the lower Court is affirmed.