H. E. CLARK and E. L. STINGLEY, Appellants, v. M. MITCHELL, G. E. SHANNON, and A. A. CARION, Respondents
Clark v. Mitchell
McCarran, J., having become a member of the court after the argument and submission of the case, did not participate in the foregoing opinions.
H. E. CLARK and E. L. STINGLEY, Appellants, v. M. MITCHELL, G. E. SHANNON, and A. A. CARION, Respondents.
[No. 1987]
H. E. CLARK and E. L. STINGLEY, Appellants, v. M. MITCHELL, G. E. SHANNON, and A. A. CARION, Respondents.
1. Mines and Minerals — Agreement to Relocate Mining Claim — Failure to Perform Agreement.
Where a plaintiff, one of two coowners and locators of a mining claim, contracted with- a defendant, whereby such defendant agreed to do the annual assessment work on the claim for the year 1909, and thus prevent a forfeiture, a trust relation was created; and when such defendant, in violation of his agreement, failed to do the work, and permitted a forfeiture, and then relocated the claim in the names of himself and two others, not including plaintiffs, plaintiffs could recover the relocated claim.
2. Principal and Agent — Relocation of Claim — Effect of Notice to Agent.
Under an agreement between plaintiff and defendant M., by which the latter was to relocate a mining claim, in their joint names, defendant M. relocated the claim, but omitted plaintiff’s name as a relocator and included the name of defendant S.: Held, that the ignorance ’of S. as to the agreement will not affect the right of plaintiff to enforce the agreement, as the location was made by M., and notice to an agent is notice to the principal.
3. Mines and Minerals — Location of Claim — Noncontiguous Territory.
The right to extend the lines of a mining claim over and across ground belonging to a prior location, and to hold segregated pieces of ground within the exterior boundaries of the location, not exceeding the maximum area of 1,500 by 600 feet allowed by law, appears to be settled.
4. Mines and Minerals — Location Certificate — Clerical Error.
The description of a mining claim in a location certificate read: "To SW. comer; thence northerly 500 ft. to N. side center post, 1,350 ft. to place of beginning”: Held, that the failure to carry the boundary to the northwest corner was an apparent omission or clerical mistake if the claim was properly monumented at that corner.
5. Mines and Minerals —Location Certificate — Clerical Error.
A location certificate is not required to be strictly exact, and an apparent clerical mistake in describing courses and boundaries will be corrected or ignored.
Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers, Judge.
Action by H. E. Clark and E. L. Stingley against M. Mitchell and others. Judgment for defendants and plaintiffs appeal.
Reversed, and judgment rendered. Petition for rehearing. Denied.
The facts sufficiently appear in the opinion.
Frank J. Hangs, for Appellant:
Mitchell having obtained his information from Clark and having agreed to perform the annual labor on the Silver King Fraction claim, and after having started to perform such labor and entered into a fiduciary relation with Clark and Stingley, cannot be heard to say that the latter’s title was defective and for that reason he took the ground for himself.
Noncontiguous portions of ground may be included in one location. (1 Lindley on Mines, 2d ed. p. 469, and authorities cited; Empire M. Co. v. Bunker Hill M. Co., 121 Fed. 978, 114 Fed. 417; Davis v. Shepard, 72 Pac. 57; State v. Court, 65 Pac. 1020; Flynn G. M. Co. v. Murphy, 109 Pac. 851.)
The evidence is uncontradicted that Shannon and' Carion had notice of the agreement between Clark and Mitchell to do the work on the Silver King Fraction. The findings of fact were all in favor of plaintiffs. [Hurst v. Patchen, 85 Fed. 816; Lockhart v. Rollins, 21 Pac. 413; UtahM. Co. v. Dickert, 21 Pac. 1002; Sun Dance M. Co. v. Frost, 64 Pac. 435; O’Neill v. Otero, 113 Pac. 614; Welland v. Huber, 8 Nev. 203; Pomeroy, Eq. Juris. 3d ed. secs. 899, 918, 959, 1044, 1050.)
Thompson, Morehouse & Thompson, for Respondents:
See extracts from brief in Case No. 1984 (p. 447, ante)', where points involved in this case are considered.
By the Court,
Talbot, C. J.:
The findings of fact in this action are set out with the findings in the case of H. E. Clark, one of the plaintiffs herein, against the same defendants (see page 447, ante), in the opinion this day filed in that case, which relates to the same property and agreement. Under the facts and the law as determined in that case, the judgment in this case must be reversed.
The claim and recovery by Clark in that action being for an undivided one-half interest in the Helen mining claim, which was a relocation of the Whirlwind No. 4, and the claim in this action being for an undivided three-fourths interest in the ground within the lines of the Silver King Fraction, and lapped by the Helen, the further question has arisen as to the extent of the recovery in this action. The Helen having been located in the names of the three defendants, instead of in the names of Clark and Mitchell, as agreed by Clark and Mitchell, it is said that there is no evidence in the statement showing that Shannon had any knowledge of the agreement between Clark and Mitchell, and consequently it is argued that Shannon is entitled to hold a one-third interest which could not be affected by the agreement of which he was not aware. ' If Shannon had made the location for himself, or by an agent who was not aware of the agreement, there might be some force in this contention; but, according to the evidence of Mitchell and Shannon, the location was made by Mitchell, who placed Shannon's name on the location notice, and consequently any rights Shannon obtained in the property were acquired through an agent who had knowledge, binding upon Shannon, that Mitchell had agreed to do the work on the Silver King Fraction for a one-quarter interest, so as to preserve the rights of Clark and Stingley to the remaining three-quarters interest in that claim. On the theory that notice to the agent is notice to the principal, and the agent being well aware that he had agreed to perform the work to protect from forfeiture the rights of Clark and Stingley, they are entitled to a judgment-for an undivided three-fourths interest accordingly.
In remanding a case it is seldom that this court will order the entry of a reverse judgment without a new trial, which should always be allowed when there is • any probability that new facts might be established which would materially affect the rights of litigants. After the trials in these two cases, the findings are so well supported by the evidence, and by the testimony of the parties themselves, that we conclude that a new and expensive third trial could not in any way change the result, and would be only an unnecessary expense and hardship. Consequently, the district court is directed to enter a judgment in favor of the plaintiffs for an undivided three-fourths interest in the piece of ground claimed by them which was within the boundaries of the Silver King Fraction, and described or demanded in the complaint. If desired or requested by any of the parties the court may take evidence for the purpose of making a description of this piece of ground more specific in the judgment.