Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1881-07-28

sented, have held to this rule without q
single exception and they have all held
that the only two instances in which facts
showing that all preliminary steps had
not been taken regularly, is in the case
where q plaintiff properly pleads and sets
them forth in his complaint in an action
different from this, and where a defendant
shall nave pleaded them in defense Of an
action against him, brought by a patentee
wherein the PATENTS declared on. In sup
port Of this latter position l have only to
refer to the decision Of the eminent jurist
who heard and determined the application
for injunctions in the three Richmond
Albion cases, wherein he says:
"The action of the Richmond Company
VS.. the Albion Con. Company in ejectment,
relying upon the st. George patent as title.
The Albion Company has fully answered,
setting up all the claimed equities and
asking that the Richmond Company nay
in trust. Under the code in this State,
law and equity are blended. and a de-
PENDANT may avail himself by answer OF as
many defenses as exist"
Further, referring to that case in which
the Richmond Company and not Rose or
the Albion are plaintiff, but in which they
are defendants, he says "The Richmond
Company are seeking to recover this prop
erty from the Albion by force OF this pat
emit; it is its imminent OF title, and l can
discern no sufficient reason, upon principle
or authority, for denying the defendant
the right"
1t will be observed from this reading
that the Hon. Judge Rising treated the
Albion Company as the defendants through
out the hearing upon the three applica-
tions for injunctions, and overlooked the
fact that in this case Rose, instead of the
Albion Company, was q plaintiff, and q
plaintiff in a statutory proceeding to quiet
title, in which no equities ON his part had
been alleged, and it is a fundamental
principle that while a plaintiff may rebuff
a defendants case by any testimony which
would avoid the effect Of defendants case,
still, that no Court, whether of law or
equity, can go beyond the consideration
Of the facts alleged, or necessarily i'm
piled therefrom, in determining the char
acter Of relief to be rendered in the action.
For a Court to do more would be tanta-
mount to permitting q plaintiff to come
into Court upon and set up one cause of
action and obtain relief upon an entirely
different one. Any Judgment Of such a
character would be set aside by n ap-
pellate Court upon the judgment roll alone.
We're the st. George not void, no trust in
favor of the plaintiffs herein could be
decreed, because under their complaint no
facts emitting them to such relief are
alleged.
The error into which Judge Rising mad
yer tently fell when he treated and called
tho A lItAn {anA UAcn cfan1o hAra nC 4hn
Albion Company ''the defendant arose
from the fact that the only case in which
any testimony was offered before him was
that of the Richmond Company, plain
tiff, VS.. the Albion Con. Company, defend
ant" and the testimony given therein was
stipulated to have been given in the Sec
ond case Of the same title and in this one
wherein Rose was plaintiff. In the two
cases wherein the Albion Company are de-
PENDANTS / presume that the equities in
favor of the company have been fully
pleaded as a defendant is entitled to plead
them, and that when it comes to the trial
of these cases in the near future the juris-
diction of the court will be ample to rem
der such decree as the facts set up in the
pleadings may justify. l do not desire,
however, in passing upon this case to be
understood as even intimating that in
those cases either party will $50 assuredlv
be entitled to" any special character Of
"~relief," nor can l dare to express my
convictions as to what must be the evident
result upon the merits"
There remains but one question which l
deem it necessary to pass upon, and that is
in respect to the validity of the Victoria
patent. 1t appears from the notice of To-
cation that the Victoria was taken UP or
located about December Z, 1872, and a pat
ent therefor was issued February %, 1880.
The Uncle Sam claim covers, so far as
the maps show, and so far as Rose staked
out his surface boundaries, but a small por.
tion of the Victoria, but however small
sufficient to entitle these plaintiffs to have
protested against its issuance, to have COM
menced an action similar to this, and to
have thus secured stay of proceedings such
as should have been had in the matter
against the st. George, and in consequence
of which stay not having been had has in
validated that patent. We find, however,
that no protest or adverse claim was ever
made against the issuance of the Victoria
patent. We find it admitted that it covers
a portion of this great lode Immediately to
the east or northeast of the Uncle Sam.
1t is also admitted that any valid patent on
the lode carries the entire lode from wall to
wall between the end lines of such patent.
The Uncle Sam was located under the min
ing law of 1866, which gave to each locator
200 feet in length along the ledge, besides
200 feet additional for discovery. The min
ing laws of this District then in force, and
respected among the miners, gave the same
number of feet "on the ledge, besides 100
feet on each side thereof for mining pur-
poses." Under these laws then it is perth
nent to inquire what was the extent of
Roses location. 1t will undoubtedly be
admitted by any lawyer that the effect of
his location, in the absence of a superior
title, or the waiver or forfeiture of his own,
was to entitle him to 800 feet in length of
this great lode from quartzite to shale, and
to ''hold 100 feet on each side for mining
and building purposes.
Roses notice of location also claims
eight hundred $500 feet ON this ledge, lode
or mineral deposit" without any reference
to the width or even the 100 feet on each
side," and he very properly concluded at
the time that he was entitled to the full
width of the ledge and 100 feet on each
side by virtue and operation of the
laws of the district and those of Congress
then in force.
Under this state of facts his claim would
cover all of the Victoria with the entire
lode between his end lines. and be was not
only entitled to protest against the issue of
that patent, but was obliged to do so, or
his rights to all of the lode embraced within
the Victoria would be waived and forever
forfeited. This identical point is expressly
decided 10 the case of the Eureka Con.
Company VS.. the Richmond M. Company,
where Judge Field uses this language:
Each patent is evidence Of a perfected
right in the patentee to the claim conveyed.
the initiatory step for the acquisition Of
which was the original location. If the
date Of such location be stated in the in
strument, or appear from the record of its
entry in the local Land Office, the patent
will take effect as Of that date, so far a.
may be necessary to cut off all intervening
claimants. unless the prior right by virtue
of his earlier lacatian has bean Loaf hv a