Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1882-03-25

Il uBOA tAO NAA
reason for our decision thereon.
/. 1t is claimed by respondent that the state.
ment on appeal is defective, because 1t does
not contain any evidence or specify any error
which occurred at the trial.
The objection is without merit. No ques-
ton is raised by appellants as 70 the suf1eiency
of the evidence to support the findings of facts.
They do not rely upon any alleged error COM
mitfed by the Court during the prog ess of the
trial. The statement does contain some, IL
not all. Of the documentary evidence, and 1t
was unnecessary to insert any more OF the tyt-
dence taken at the trial in order Ito explain
the particular errors or grounds specined" in
the statements on appeal.
The statement is sufficient to authorize this
Court to determine whether the findings of
facts support the Ign emit of the District
Court. provided there is a proper specification
of errors as required dissection $50 OF the civil
Practic Act. q Comp. L., 1881
2. We are of opinion that this provision OF
the statute has been substantially complied
with. 1t is true, as claimed by respondent,
that in the assignment of errors il Is not said,
in direct terms, THAT the judgment Is con-
trary to the findings, or that upon the hndings
the judgment should have been Tor appel
lants = yet such 10 the evident meaning and
effect Of the language used.
We believe it has been the usual practice,
in cases like this, to make the general state
ment that the judgment Is not supported by
the findings, and to add O specific statement
of "tbe particular errors" relied upon. But
the general statement, the absence OF which
IL is claimed is fatal, without the particular
specifications, would, according TO many OF
the authorities cited by respondent, be insult
fcient. 1t must be remembered that no oDlec-
items are urged as to the suficiency OF the
findings. They are not explained by either
party, but are accepted as correct by both, and
must be SO treated by this Court. The only
grounds, therefore, that could have been as
signed as error were the alleged erroneous
conclusions of law reached by the Court upon
the undisputed facts set forth in the findings.
Every conclusion of law Of which complaint
is made is separately specified ss an error
upon the part of the Court. The form Of the
specifications may be subject to criticism. but
the substance is there. Appellants have
pointed out with great distinctness the specific
errors which they claim the Court committed,
in its conclusion of law, in such a manner as
to enable this Court to readily understand the
grounds upon which they rely for o reversal.
The specifications are given with such full
ness as TO aid the Court in the examination Of
the transcript" and this Court was not left, as
was the Court in Squires vs.. Foreman 10
Cal 1881, and other cases cited by respond
ent, "to grope Its way through the record in
search OF possible errors" The statement on
appeal and the assignment Of errors come
within the rule announced by the decisions in
Barrett w. Tewksbury. Is Cal. 1856, and Hutton
VS.. Reed, 20 Cal. AIS; and this Court has never,
in any of its decisions, suggested that any
further specification was necessary.
8. Respondent contends that the complaint
does not state facts sufficient to constitute q
cause Of action. In deciding this question 1T
is important to determine the nature of this
action, for upon the character of the plead
ings, especially Of the complaint, depends the
solution of msny questions that have been
elaborstely and learnedly argued by counsel.
TIL complaint alleges "Thst the plaintiffs
are, and ever since the goth day Of January,
A. ID. 1872. have boen the owners OF, and seized
and possessed Of, the mining ground in con-
troversy, together with all the veins, lodes
and lodges throughout their entire depth, the
top or apex of which lies within said surface
- 81. -s-AAT ~ al
versely TO plaintiffs, claims an estate in
fee in aud 10 said premises aud the right OF
possession thereof, and the right of extracting
snd converting TO its own use all the mineral
bearing rock, ore and earth therein contained,
and has filed in the United States Land ONCE
an application for a patent thereto, under the
name OF the st. George ledge and mine," and
closes with the usual prayer.
We will not follow counsel in that portion
Of their argument which is based upon the
theory that this IL q suit brought under the
provisions of 256 Of the Civil Practice Act. In
our opinion the suficiency of the complaint
must be determined by the provisions of sec
tiou 1874 OF the Compiled Laws (5tst. 1s73-50)
aud section 81 Of the Civil Practice Act.
Section 1874 reads as follows lin all
actions brought to determine the right Of pos
session of a mining claim, or metalliferous
vein or lode. whore sn application has been
made 10 the proper officers of the Government
of the United States by either of the parties
TO such action for q patent for said mining
GihAlig RtlIr Ut lohHs 4 hhA thAs w hNNPooHAE
to confer jurisdiction on the Court to try said
action. and render a proper judgment therein,
thst II appears that an application for a patent
for such mining claim, vein, or lode, has been
mEde. and that the parties 10 said action are
claiming such mining claim, vein, or lode. or
some part thereof, or the right Of possession
thereof"
The objections to the complaint under sec
ton 1914 are stated rs follows; There is no
allegation that the claim or application OF the
defendant for a patent IL without right, or in
valid, or void, or that the plaintiffs ever Med
any adverse claim 10 the Defendants applica-
ton for patent. Ii does not appear from the
complaint that any contest ever was initiated,
or was pending in the Land ONCE at the date
Of the commencement of this action"
The complaint is not defective, either under
section 256 or section 1874. because Ii does not
allege the particulars Of defendants' claim and
prove that il was invalid. scorpion 8. NJ. 90.
v. Marrano. 10 New. $40; Golden Fleece g, 4 5.
Co. v. Cable Con. g.. 4 :. NJ. Co.; IL New. $40.
In the case last cited Beatty, j., in delivering
the opinion of the Court, said: "A review of
the question is. however. wholly unnecessary
in this case. which is governed by the pro-
visions of section 1874 of the compiled laws,
= - = snd evidently designed to supplement
section 1926 of the Revised Statutes Of the
United States. = Under these laws
tendency Of a contest in the Land Once. with
respect to q mining claim, gives our District
Courts Jurisdiction to determine the right of
possession as between the adverse claimants.
The contestant. whether he is in or out OF
possession. must commence his action 10 de-
termine the right within thirty days after
filing the adverse claim.
1t would be absurd to hold that, II he hap
pened TO be the party in possession, and there
fore presumably entitled to the possession,
judgment must go against him. in favor of q
party out Of possession, unless he not only
proves his own right atirmstively. but dis
proves the claim Of the defendant by negative
testimony. The only sensible construction Of
the law is that each party must prove his claim
to the premises in dispute, and that the better
claim must prevail"
1t is claimed that this decision is In favor of
respondent, upon the point that the pendency
OF the contest in the Land Office must be al
legged. The complaint in that action Averred
that plaintiff had filed an adverse claim TO the
defendants application for a patent hence the
statementin the opinion that the pendency of
the contest in the Land Once gave the Court iu-
risdiction, which is true; but the question here
involved was not presented in that case. and
the Court did not decide that such an allegs-
tion was absolutely essential In order to give
the Court jurisdiction
Section i674 does not make the filing of the
protest n jurisdictional fact, TO be alleged in
the complaint, and. In this respect, II differs
from the statute considered by the Court in
Berry v, Canet, A Cal. $50. which is, also, re-
lied upon by respondent.
1t has, We believe, been the general practice
In this State. in suits of this character, to
ailege the p~rudency of the contest in the Land
once. and the Actof Congress (lev. Stat. 2S26l
has reference to cases where an adverse claim
IL filed. But 1T does not attempt to confer any
special jurisdiction upon the State Courts.
In i20 NJ. 90. v, Bullion nj. Co. 0 New. PAS, we
said; Congress did not by the passage of
this Act y confer any additional juris-
diction upon the State Courts. The object of
the law, as we understand it, was to require
parties protesting against the issuance o. a
patent to go into the State Courts of compe-
tent jurisdiction and institute such proceed
ings as they might under different forms of
action, therein allowed. elect; and there try
the rights of possession to such claim and
have the question determined. The Acts OF
Congress do not attempt to confer any jurisdie.
tion not already possessed by the State Courts,
nor to prescribe a different form OF action.
y y y We are of opinion that where the ac-
ton Is brought. whatever may be its charac-
ter. II must be tried by the same rules, gov
erned by the same statutes that apply to such