Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-02-01

in giving the said instructions. But tie
statement of the case does not show that
any of said points of objections or ex-
was stated at the trial. The al
legged errors cannot be considered on
appeal.
(McInnis VS.. NcGurn. 50 Pac Rep.
tel New. - and eases
cited.l
The defendant interIosed Il demurrer
to plaintiffs complaint upon the ground
that it does not state facts sufficient to
constitute a cause of action. The court
overruled the demurrer and the ruling is
assigned as error.
We do not think said ruling was error,
but that the facts alleged are sufficient
The facts as shown by the complaint,
stated III brief, are, that on the 18th day of
June, 1896. the defendant, and Irene Rob
inson. Eugene Howell and Il. NJ. Clarke
were the owners of a certain mining
claim described therein, the defendant
owning An undivided two-thirds interest
and the said Robinson, Howell and
Clarke owning among them an undiSid-
ed one-thigi interest ia said mining
claim; that on said day the SAID owners
of said one-third interest, leased to the
/ plaintiff their i interest for one year
. FROM said date. upon the terms and con-
ditions expressed in said lease; that the
plaintiff on the 18th day of June exhibit
ed said lease to the defendant, offered to
pay him any sum due from plaintiffs
/ lessons as their proportion of the eXpen-
SEES incurred in the development of said
mine; that defendant at said time and at
/ diverse ether times about said date. re-
fused to give any statement of such ex-
penses, refused to permit the plaintiff TO
enter into possession and work said min
ing claim and excluded him therefrom;
that the value of the rents, ISSUES and
profits OF said one-third interest in said
mine for the said term of said Lease is
100000.
1t is alleged that by reason of the re-
fusal OF defendant to let plaintiff into
possession of said one-third interest in
said mining claim under said lease, plain
tiff was damaged in the sum OF S25000o
A copy of said lease is attached to the
cOmplaiut and made a part thereof.
Counscl's first contention with respect
to the facts alleged is. that the writing
called lease is not lease bat simply a
, license to plaintiff to extract and work
ore at his option Tor the period of one
year at a specified royalty on ores that he
J might perchance extract.
f The instrument in question. after Civ
a ing the names of the parties thereto, re-
spectively, as the party of the first part
nd Iva, Of n
that they do by these presents covenant
and agree and the said party of the first
part hereby leases unto the Sd id party OF
: the second part one-third interest in and
, to that certain mine known as and called
: the Homestake Mine, situated. "etc
this lease t. take effect and go in force
, from this day and to continue for a per
= i"d of one year up to and including June
18th, 1897. The provisions of this lease tC
b. as follows, the party of the SECOND
part hereby agrees to work said mine il
. a workmanlike manner and leave thu
same in as good condition as it is at thi
i. time; the said party of the second par
agrees to pay to the said party of tn
first part or to y as shall be direct
- ed by the party of the first part, royalt
J. from all ores taken out, extracted an
;, shippes from said Homestake Mine b
. the party =, the second part during tn
- continuance of this lease:''
"A After specifying the samount of tn
- royalty on each ton taken out, ETC., it
:. recited, said royalty to be paid upon til
. first day Of each month to the party {
parties as hereinbefore named" The il
= strument is dated the 18th day of Jun
1896, and signed by the parties thereto
mo particular form of words are r
as NCohcluosd on fourth Page)