By the Court,
Massey, J.:
This is a proceeding in ejectment and for damages. The verdict of the jury was for the respondents. From the judgment rendered thereon, and the order denying the motion for a new trial, this appeal was taken.
Briefly, that part of the answer of the respondents pertinent to the question presented on the appeal sets up as a defense that the respondents were in possession of the premises in controversy under and by virtue of a valid mining-location made on the 14th day of January, 1899, by the respondent, Henry Hirsching, known as the "Hirsching. Lode-Mining Claim,” record of which had been duly made upon the records of the Yellow Pine mining district, and upon the records of the recorder’s office of Lincoln county, wherein said mining claim and mining district are situated; that said claim contains large deposits of gold, silver, and copper ore, and is valuable only for the precious metals therein contained; that after making the location the respondents had done a large amount of development work thereon, and had erected thereon certain buildings and a plant for the' reduction of ores, at a cost of about $40,000.
The appellant showed title to the lands from the state by purchase under patents issued on the 23d day of May, 1899.
It was further shown, and is not disputed, that in the year 1893 the appellant made application to purchase the lands in controversy from the State of Nevada, as agricultural lands, under the grant made by the act of Congress of June 16, 1880 (21 Stat. 287), of 2,000,000 acres, in lieu of the sixteenth
and thirty-sixth sections, before that time granted for the support of the common schools.
It is also conceded that all necessary and proper steps were taken for the selection of the lands by the state, and its approval by the proper officers of the government.
It was also shown that on the 7th day of February, 1896, and after the act of selection had been made, the state entered into a contract for the sale of the lands to the appellant, and thereafter patents were issued to the appellant under said contract of purchase. The evidence offered by the respondents supports the defense made by that part of the answer above set out, and the jury by its verdict so found.
Appellant contends that these averments of the answer, and the facts shown thereunder, conceded to be true for the purpose of the argument, are no defense as against his rights under the patents from the state, and are not sufficient to authorize either the verdict of the jury or the judgment of the court.
It is ably argued in support of this contention that the selection of the lands by the state under the grant, and the approval of such selection by the proper officers of the government, were a conclusive determination by the tribunal having authority for that purpose that the lands were agricultural and non-mineral, within the meaning of the act making the grant; that the act of selection by the state, and its patents to him, gave him the right to the exclusive possession of the lands embraced therein from the time he made his application, or at least from the date of the contract of purchase; that the subsequent discovery of valuable mineral lodes by the respondents gave them no rights as against the selection by the state, and his rights under the state’s patents; that any attempt to defeat his rights in this proceeding under the patents is a collateral attack upon the findings of the authorized tribunal that the lands were agricultural and non-mineral in character, and excepted by the act from the grant; that an attack involving the character of the lands could only be made in a direct proceeding instituted for that purpose, and that the entry of the respondents upon the lands after selection by the state, and after appellant’s contract of purchase had been executed, was a trespass, and such entry, even
though the mining rules, laws, and regulations had been strictly complied with, did not initiate any right in the respondents as against the appellant.
A large number of the authorities are cited by the appellant to support this contention, and, in a proper case, would control; but as the cases cited do not, as we believe, apply to the case at bar, we do not deem it necessary to discuss or review them.
The question must be determined, as we view it, by the application of certain statutory rules, the enactment of our legislature. While it is probably true that under the act of June 16, 1880,
supra,
making the grant, and excepting therefrom mineral lands, the selection by the state, and the approval of such selection by the authorized officers of the government, is such a determination of the agricultural and non-mineral character of the land, within the meaning of the grant, as to preclude any investigation involving that question in proceedings of this character, based upon the subsequent discovery of valuable mineral deposits, it does not necessarily follow that the state must, under its laws regulating the sale of the lands thus acquired, by its conveyance vest in its grantee the same title and right acquired from the government under the grant.
By Section 3 of the act of June 16, 1880,
supra,
the state is, in direct terms, authorized to dispose of the lands under such laws, rules, and regulations as may be prescribed by the legislature. The only restriction or limitation found in the act relates to the use of the funds arising from the sale of the lands granted.
The language used is clear and explicit. The laws, rules and regulations for the disposal of the lands should be such as were prescribed by the legislature of the State of Nevada. In this matter power was delegated by Congress to the legislature. The disposal of the land was left to its judgment and wisdom, and long before any steps were taken by the appellant to acquire or even initiate any right to the lands in controversy the legislature of this state, by law, defined his rights, as an applicant and contractor, to purchase the lands under the grant, and made provision for the maintenance of actions to sustain and protect the same.
By the act of March 5, 1887, the legislature, in the exercise of this delegated authority, prescribed by law to the effect that every person who has applied or may thereafter apply to or contract with the state to purchase land under the grant, in good faith, and who has paid or may thereafter pay to the proper officers of the state the required amount of money under such application or contract, shall be deemed and held to have the right to the exclusive possession of such land, provided that no actual adverse possession thereof existed in another at the date of the application.
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By the Court,
Massey, J.:
This is a proceeding in ejectment and for damages. The verdict of the jury was for the respondents. From the judgment rendered thereon, and the order denying the motion for a new trial, this appeal was taken.
Briefly, that part of the answer of the respondents pertinent to the question presented on the appeal sets up as a defense that the respondents were in possession of the premises in controversy under and by virtue of a valid mining-location made on the 14th day of January, 1899, by the respondent, Henry Hirsching, known as the "Hirsching. Lode-Mining Claim,” record of which had been duly made upon the records of the Yellow Pine mining district, and upon the records of the recorder’s office of Lincoln county, wherein said mining claim and mining district are situated; that said claim contains large deposits of gold, silver, and copper ore, and is valuable only for the precious metals therein contained; that after making the location the respondents had done a large amount of development work thereon, and had erected thereon certain buildings and a plant for the' reduction of ores, at a cost of about $40,000.
The appellant showed title to the lands from the state by purchase under patents issued on the 23d day of May, 1899.
It was further shown, and is not disputed, that in the year 1893 the appellant made application to purchase the lands in controversy from the State of Nevada, as agricultural lands, under the grant made by the act of Congress of June 16, 1880 (21 Stat. 287), of 2,000,000 acres, in lieu of the sixteenth
and thirty-sixth sections, before that time granted for the support of the common schools.
It is also conceded that all necessary and proper steps were taken for the selection of the lands by the state, and its approval by the proper officers of the government.
It was also shown that on the 7th day of February, 1896, and after the act of selection had been made, the state entered into a contract for the sale of the lands to the appellant, and thereafter patents were issued to the appellant under said contract of purchase. The evidence offered by the respondents supports the defense made by that part of the answer above set out, and the jury by its verdict so found.
Appellant contends that these averments of the answer, and the facts shown thereunder, conceded to be true for the purpose of the argument, are no defense as against his rights under the patents from the state, and are not sufficient to authorize either the verdict of the jury or the judgment of the court.
It is ably argued in support of this contention that the selection of the lands by the state under the grant, and the approval of such selection by the proper officers of the government, were a conclusive determination by the tribunal having authority for that purpose that the lands were agricultural and non-mineral, within the meaning of the act making the grant; that the act of selection by the state, and its patents to him, gave him the right to the exclusive possession of the lands embraced therein from the time he made his application, or at least from the date of the contract of purchase; that the subsequent discovery of valuable mineral lodes by the respondents gave them no rights as against the selection by the state, and his rights under the state’s patents; that any attempt to defeat his rights in this proceeding under the patents is a collateral attack upon the findings of the authorized tribunal that the lands were agricultural and non-mineral in character, and excepted by the act from the grant; that an attack involving the character of the lands could only be made in a direct proceeding instituted for that purpose, and that the entry of the respondents upon the lands after selection by the state, and after appellant’s contract of purchase had been executed, was a trespass, and such entry, even
though the mining rules, laws, and regulations had been strictly complied with, did not initiate any right in the respondents as against the appellant.
A large number of the authorities are cited by the appellant to support this contention, and, in a proper case, would control; but as the cases cited do not, as we believe, apply to the case at bar, we do not deem it necessary to discuss or review them.
The question must be determined, as we view it, by the application of certain statutory rules, the enactment of our legislature. While it is probably true that under the act of June 16, 1880,
supra,
making the grant, and excepting therefrom mineral lands, the selection by the state, and the approval of such selection by the authorized officers of the government, is such a determination of the agricultural and non-mineral character of the land, within the meaning of the grant, as to preclude any investigation involving that question in proceedings of this character, based upon the subsequent discovery of valuable mineral deposits, it does not necessarily follow that the state must, under its laws regulating the sale of the lands thus acquired, by its conveyance vest in its grantee the same title and right acquired from the government under the grant.
By Section 3 of the act of June 16, 1880,
supra,
the state is, in direct terms, authorized to dispose of the lands under such laws, rules, and regulations as may be prescribed by the legislature. The only restriction or limitation found in the act relates to the use of the funds arising from the sale of the lands granted.
The language used is clear and explicit. The laws, rules and regulations for the disposal of the lands should be such as were prescribed by the legislature of the State of Nevada. In this matter power was delegated by Congress to the legislature. The disposal of the land was left to its judgment and wisdom, and long before any steps were taken by the appellant to acquire or even initiate any right to the lands in controversy the legislature of this state, by law, defined his rights, as an applicant and contractor, to purchase the lands under the grant, and made provision for the maintenance of actions to sustain and protect the same.
By the act of March 5, 1887, the legislature, in the exercise of this delegated authority, prescribed by law to the effect that every person who has applied or may thereafter apply to or contract with the state to purchase land under the grant, in good faith, and who has paid or may thereafter pay to the proper officers of the state the required amount of money under such application or contract, shall be deemed and held to have the right to the exclusive possession of such land, provided that no actual adverse possession thereof existed in another at the date of the application.
It was further provided that every person who has contracted with the state in good faith to purchase such land shall be entitled to maintain or defend any action at law or in equity concerning the same or its possession which may now be maintained or defended by persons who own land in fee, and that every person who has applied or shall thereafter apply to purchase, in good faith, such land, and has paid or shall thereafter pay the required amount of money under the application to the proper officer, shall be deemed and held to have the right to the exclusive possession of such land, and shall be entitled to maintain and defend any action at law or in equity concerning the same or its possession which may be maintained or defended by persons who own land in fee, provided no actual adverse possession of such land existed in another at the date of the application. If the legislature had gone no further, then, under this statute, should the contention of the appellant be sustained, but it did not stop with these provisions.
By Section 3 of the act it provided in direct terms that nothing in the act contained should be so construed as to prevent any person or persons from entering upon such lands for the purpose of prospecting for any of the precious metals, or to prevent the free and economical working of any mine which may be discovered therein. (Comp. Laws 1900, 325-327.)
At the time the respondent Hirsching entered the lands in controversy and made the mining location, the appellant claimed them under his application and contract to purchase; and, by the provisions of Section 3 of the act, Hirsching had a right to enter for that purpose. He was not trespassing at
the time he entered, and by making his mining location he initiated the right by which he was enabled to work in a free and economical manner the mine which he discovered. The strength and infirmity of this act entered into and became a part of appellant’s contract. He took possession of his land with his rights of action and right to exclusive possession limited by the provisions of said Section 3. By its terms he could neither hold possession as against respondents, nor conld he maintain an action to recover possession as against them, under the showing of, the record.
It cannot be successfully claimed that the issuance of the patents of the state at the date subsequent to the entry of the respondents in any manner terminated or concluded their rights. The legislature at the same session, and only a few days prior to the passage of the act, and in harmony therewith, declared, among other things, in an act to encourage mining', that any citizen of the United States, or person having declared his intention to become such, might enter upon any mineral lands in the state, notwithstanding the state’s selection of it under the grants, and explore for gold, silver, copper, lead, cinnabar, or other valuable mineral, and, upofi the discovery of any such mineral, might work and mine the same in pursuance of the local rules and regulations of the miners and the laws of the United States, provided that, after a person who has purchased lands from the state has made valuable improvements thereon, such improvements shall not be taken or injured without full compensation, but such improvements should be condemned for the uses and purposes of mining in like manner as private property is by law condemned and taken for public use.
It further declared mining to be of paramount interest and a public use. It still further declared that every contract, patent, or deed thereafter made by the state or its authorized agents should contain a provision expressly reserving all mines of gold, silver, copper, lead, cinnabar, or other valuable mineral that
may exist
in such land, and disclaimed for the state and its grantees any interest in mineral lands selected by the state on account of any grant from the United States. (Stats. 1887, 102; Comp. Laws 1900, 281, 282.)
The patent issued to the appellant contains the reservation
provided for in the act last cited; and without entering upon a discussion as to what, if any, limitation should be placed upon the construction of the clause of the statute providing for the reservation, it is sufficient to say that under the showing of the record the Hirsching lode was located, worked, and improved, and known to exist, before the patent of the state was issued, and, if this clause of the statute is to be applied to any case, it seems especially appropriate that it should be made to apply to the case at bar.
In other words, the state did not by its patent convey or attempt to convey the Hirsching lode. It did not terminate any rights of the respondents to the possession of the claim. It did not, under the facts of the case, divest or attempt to divest the respondents of any rights initiated by their location, work, and improvements made upon the claim; and it was proper in this action to set up and have determined their rights under these statutes.
By the terms of the statutes the respondents were lawfully in the possession of the mine, and lawfully entitled to the possession thereof. This right was not violative of any of the terms of the appellant’s contract to purchase. It does not conflict with any of his rights under his patent, as defined by the statutes. If these statutes cannot be applied to the facts of this case, then they are nugatory. If they render unstable and have a tendency to unsettle titles, the remedy must be, if it can be, found in the legislative department. We do not make the laws. It is our duty to construe and apply them.
Error based upon the giving and refusal to give certain instructions is not properly before us. The instructions are not in the statement. No objection was made or exception taken to the action of the court in this matter.
(McGurn
v.
Mclnnis,
24 Nev. 370.)
The other questions not waived are without merit.
The judgment and order appealed from are, for the reasons given, affirmed,