1. In ejectment for an undivided interest in a mining claim in
Nevada, where both parties derive title from the original owner,
the validity and regularity of his location are not in
question.
2. Where the plaintiff was a tenant in common with the
defendants, their possession of the claim was his possession until
he was ousted. The statute of limitations would then run against
him, but not bar his recovery unless after such ouster their
adverse possession was maintained two years before the commencement
of the suit.
3. The statute of limitations of that state, as construed by its
supreme court, excepts from its protection a foreign
corporation.
4. Where the circuit court, under a written stipulation of the
parties, tries the issue, its special finding should set forth the
ultimate facts, and not the evidence establishing them. Where,
therefore, both parties claimed under A., and the court found his
ownership, the chain of conveyances by which he acquired it need
not be set forth.
5. A conveyance in writing is not necessary to the valid
transfer of a mining claim.
6. The admission of immaterial and irrelevant evidence, which it
is manifest could not have affected injuriously the case of the
plaintiff in error, does not entitle him to a reversal of the
judgment.
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
Page 100 U. S. 38
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
Page 100 U. S. 39
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"
Page 100 U. S. 40
MR. JUSTICE STRONG, after stating the case, delivered the
opinion of the Court.
Upon the facts found by the circuit court, it is evident that
Taylor, the plaintiff below, was entitled to recover, unless he was
barred by the statute of limitations. Claiming, as both parties
did, under Payne and Cook, the regularity and validity of the
location of the mining claim are not in question. And when, in
1862, the plaintiff purchased from one of the owners of the claim
an undivided interest therein, and went into possession with his
grantor and with others deriving title from the original locators,
expending large sums in prospecting and developing it (acts which
the state statute declares shall constitute adverse possession), he
became a tenant in common with those who were then the owners. He
was such when the Union Gold and Silver Mining Company purchased
the interest of other owners. By that purchase, that company
succeeded to a tenancy in common with him, and so did the defendant
when it became the purchaser. Although after 1863 the plaintiff did
no work personally upon the property, he did not thereby lose the
possession he had after his purchase from Wood. The possession of
his co-tenants was his possession. They held it for him until he
was ousted. That this is a settled rule of law is not denied. And
we find nothing in the statutes of Nevada to which we have been
referred that is at variance with the rule, even when applicable to
mining claims. That it does apply is expressly held in
Van
Valkenburg v. Huff, 1 Nev. 142. It follows that neither the
defendant nor its grantor had any possession adverse to the
plaintiff prior to the time when the ouster was made, and no ouster
is found to have been made two years before the suit was brought.
The finding that the defendant was in possession more than two
years before suit was brought is not a finding of an adverse
possession during all that period, such as to constitute a bar
under the statute of limitations. Such a bar, therefore, does not
exist unless the ouster took place anterior to the commencement of
those two years, and as that is a matter of defense, it should
appear affirmatively to be of any avail.
It is, however, useless to enlarge upon this, for the findings
show clearly that the defendant has no protection under the
Page 100 U. S. 41
statutes of limitations. The plaintiff was in possession with
others who derived their title the original locators, until the
Union Gold and Silver Mining Company, a California corporation,
acquired their title in September, 1863. After that time, the
statute could not run against him in favor of that corporation or
its grantee, the defendant, also a foreign corporation. The
statutes of limitations of Nevada are held by the supreme court of
that state to except foreign corporations from their protection.
Robinson v. Imperial Silver Mining Co., 5 Nev. 44;
Barstow v. Union Consolidated Silver Mining Co., 10
id. 386. Hence those statutes cannot be set up by the
defendant as a defense in this case, and as the circuit court found
as a fact that the plaintiff had been ousted by the defendant from
his property, no reason appears why he was not entitled to recover
according to the interest which he held prior to the ouster.
It is insisted, however, that if entitled to recover at all,
judgment should have been given for no more than two and a half
undivided feet of the mining claim. This position cannot be
maintained. It is true the original locators claimed six hundred
feet extending along the Comstock vein, but of more than three
hundred feet they never had an undisputed title, and that three
hundred feet lies next to the claim of the Ophir Company on the
south. Indeed, the finding is express that the Union claim begins
at a point fifteen hundred feet north of the claim of the Ophir
Company and extends northward on the Comstock lode three hundred
feet, including the ground in dispute. Of that claim Solomon Wood,
the plaintiff's grantor, was the owner of at least fifty feet
undivided, and he sold and conveyed to the plaintiff five undivided
feet interest therein, describing the claim as consisting of three
hundred feet, bounded on the south by the claim of the Ophir
Company. There can be no doubt, therefore, what was intended to be
conveyed. Plainly it was five undivided feet of that three hundred,
and therefore whether the whole claim in fact consisted of three
hundred or six hundred feet can make no difference. Owning as Wood
did fifty feet undivided, it was in his power to convey, as he did,
an undivided interest of five feet in the southern three
hundred.
Page 100 U. S. 42
It is objected by the plaintiff in error that the special
finding of the court was not sufficiently full and formal to
justify any judgment; that it did not find the essential facts, but
left presumptions of fact to be drawn; that it did not find how
Solomon Wood became the owner, or set out in words the conveyances
under which the parties claimed. Whether a special finding of facts
by the court must have all the requisites of a special verdict, it
is not necessary now to assert or deny, for all that is essential
to such a verdict is an ascertainment of the ultimate facts. A jury
is not to find evidence. We think the ultimate facts were
sufficiently found in this case. The ownership of Wood in 1862 was
an ultimate fact, and even if Taylor had no other right to the
possession than that which he derived from Wood by conveyance, it
was not necessary to set forth the chain of conveyances by which
Wood became the owner. A transfer of possession is sufficient. They
would have been but evidence of Wood's ownership. Besides, a
written conveyance is not necessary to the transfer of a mining
claim.
Table Mountain Tunnel Co. v. Stranahan, 20 Cal.
198. But Wood was in possession when he sold to Taylor, and Taylor
then went into joint possession within. That possession is enough
to justify a recovery by him against a disseisor.
The only other assignment of error is the first, and it needs no
consideration. Apart from the fact that the defendant claims under
Payne and Cook, and is therefore not at liberty to dispute their
title, it is impossible to discover how it could have been injured
by the reception of Exhibits A and C. The instrument C was
certainly sufficient to transfer an interest in the mining claim,
and the mining rules, at worst, were only immaterial. The admission
of immaterial or irrelevant evidence is no sufficient reason for
reversing a judgment when it is apparent, as in this case, that it
cannot have affected the verdict or the finding injuriously to the
plaintiff in error.
Judgment affirmed.
MR. JUSTICE FIELD did not sit in this case.
