The Pioche weekly record. [volume] (Pioche, Nev.) 1877-1900, 1893-08-17
A MINING DECISION.
The Nevada Supreme Court Makes n
Decision OF Importance 90 Miners.

The following Supreme Court decision
will be of interest to our readers. The
facts upon which the decision is based, az
appears Of record, are as follows
The ground in dispute is situate in the
Pennsylvania mining district, about for
ty-ive miles southeast of Phoebe, and
was formerly known as the Klingen.
smith" mine, upon which the assessment
work was not done iu 1883, and early on
the morning of Jan. LIST, 1889, the de.
PENDANTS. Pat and James Ryan. located
the ground as the Hope" mine, and
shortly after, the plaintiffs. J. Poujsde
and Chas. Roeden, located the same
ground. The defendants refused to give
up the claim, and plaintiffs brought suit,
the main point in which was the validity
Of the Hope" location. The case was
tried before Judge Talbot. who gave
Judgment for the defendants. The plain.
tiffs moved for new trial and Judge
Talbot denied the motion. and plaintiffs
appealed to the Supreme Court and this
decision is the result. 1t was rendered
by Judge Bigelow. Judge Murphy con.
curing. We copy from the Reno Gar.
cite, the official paper Of the court
IN THE SUPREME COURT OF THE STATE
| OF NEVADA.
J. Poujade ct al, plaintiffs and APPEL.
lants, va. Pat Ryan ct al, defendants
aud respondents.
Syllabus BY Bigelow. J.
l. Where the findings are not included
in the statement they cannot be consid.
cred upon an appeal from an order over.
ruling motion for new trial.
2. The statute of 1889 Up. 22) requir.
ing the court to presume that the state.
ment contains all the matters pertinent
to the proper presentation of the appeal
does not require that we should so pre-.
sumo when the contrary appears from
the statement itself.
3. The amendment to the Practice Act
(statutes of 1893, p. Ss) is not retroac.
tive. and does not apply to case where
the motion for new trial had been heard
and disposed Of by the lower court before
its enactment
4. The mining law does not REQUIRE
that notice Of location of . mine shall
contain reference to natural object or
permanent monument. It Ia the record
of the location that must contain such
reference. and only then when the dis.
trict lava require the record to be made.
8. The court cannot take judicial no.
tics OF the existence 10 a particular dis.
trict OF rule requiring claims to be re.
corded. Such rule, If it exists, must be
proven the same as any other fact in the
case.
Appeal from the District Court of the
State Of Nevada, Lincoln county, G. F.
Talbot. Judge. ]. Poujade in pro. per.
and 7. J. Osborne for appellants; George
8. Sawyer and Trenmore Coffin for re-.
spondents.
Appeal from an order ovsrruling mo.
ton for new trial. The findings Of fact
are not included in tho statement on the
motion, mol. are they in any manner iden.
titled, and for this reason the objection ID
made that We cannot consider them upon
this appeal. Such has been many times
the decision Of this court.
The appellants urge that under the
statute of 1889 Up. 22) we are to presume
that the statement contains all the mat.
tiers pertinent to the proper presentation
OF tho appeal. and consequently we sup.
pose that we must either presume that
the statement does contain the findings.
or that they are not pertinent to
the presentation Of the case In
this court But the statute only requires
us to 10 presume when the contrary does
not appear from the statement itself.
That is the case here. An examination
OF tho statement demonstrates that II
docs not contain the findings, and, a. the
only assignments of insufficiency Of the
evidence are that certain findings are not
supported by it. they are certainly perti.
nent, Is without them it il impossible to
understand what the assignments refer to-.
tits further agreed that the amendment
to the Practice Act tstatutes 1893, p. ss)
has changed this rule. but. without paus.
ing to determine whether that is or il not
the case. it il sufficient here to say that
the amendment 10 not retroactive, and
docs not apply whore the motion for new
trial had been made and disposed of be.
fore its passage.
The only other error assigned is that
upon the admission in evidence Of tho
notice Of location Of tho defendants mine.
Upon this point the statement contains
the following
James Ryan, one Of tho defendants
sworn on behalf of the defendants, testi.
hes substantially as follows: The
notice OF location of the Hope mine is
shown the witness, and he says: "This
.a duplicate of the notice we posted.
we posted ours on monument on the
claim, and had this one recorded" /"
Defendants here offered in evidence a re-.
corded duplicate of the notice Of location
OF the Hope mine, to which plaintiffs
objected on the ground that it was insult.
nclent, irrelevant, incompetent and inn
material, in that, being recorded notice,
its Insufficient for lack Of description,
And That ~ Aoas e. IL