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

bility. All that can be required in any
case or upon any subject is that the evil |
dience shall tend, with fair degree 81
probability, to establish a basis for rel |
evant inference" City of Terre Haute
vs.. Hudnut, ct al, ll2 Ind. 1919
"A.tenant in common when oustsd by
His co-tenant may recover damages, re-
sultiag from the custer, as well as when
onsted by an entire stranger to the land.'
Carpenter VS.. Mitchell, % Cal. $50
and cases cited.
The order appealed from is affirmed.
concur: Massey,J.
BELKNAP,J.
Dissenting.
The written instrument which is the
basis Of this aclion is as follows:
"know all men by these presents that
Eugene Howell of the County OF White
Pine, State OF Nevada, the party OF the
first part, and Frank Paul, Of the County
and State, the party sf the second part
do covenant ami agree. and by these pres
enls DO covenant and agree that the said
party Of the first part hereby leases unto
third Interest in and to that certain mine
known As, and called tho Uemestake
Mine, situ.teI in Swansea Canyon, near
Shermsntnwn, White Pine Mining Dis
trict, White Pine County, s,tste of Ne
vaGa.
This lease to take effect and go into
force from this day, and to continue tar a
period eff one year up to and incudlH.
June 18th, 1897. The provisions OF this
lease to be follows: The party Of the
second part hereby agrees to work the
said mine n a work manl!ke manner and
leave the mine in AS good condition as
ii is al tins time.
The said party of the second part agrees
to pay over to the said party of the first
part or to the Sheriff of White Pine
County, or to c. A. Mathewson of Hamil
ton, White Pine County, Nevada, as shall
be directed by the said party of the first
part royalty from all ores and ores taken
out, extracted and shipped: from the said
! Homestaks Mine by the said party Of the
second part, or 10y any one during the
continuance Of this lease as follows. tho
party of the second part agrees to pay
one dollar Isl OOl per ton net money for
all ores shipped and worked from said
mine which 10 At the rate of Three Dol
lars $500 per ton for all ores taken out
and shipped under this lease. This Roy
atty to be net over everything, and no ex-
penses Of any nature to be deducted from
same. Said royalty to be paid upon the
first day of every month to the party or
l.,
with duplicate statements ofores work ed
by s,ueltvrs. The said party Of the frat
part empowers the party Of the second
part to ship all ores that may be out on
Tho dumps and extracted from said
Homestake Mine at this thine, the ores
representing the one-third interest as
named in this lease, paying the royalty
therefor as herein named.
All ores to be marked in the name OF
the HoMestake Mine.
The party of the second part agrees to
post a notice upon said mine at once that
said mine and interest will not be re
sponsibls for any debts, obligations, e1-
penses, wages, or dues Of any nature OF
character whatsoever during the term o.
this lease, to read as follows: Know all
men by these presents that ene-third
interest in the Homestake Mine has been
leased unto Frank Paul, and said min
will not be responsible or said Eugene
Howell will not be responsible or hold
en-, or said mine holden for any debts
obligations, wages Of men, expense o.
T mining supplies or any dues Of any IA
ture or character whatsoever during the
term of this lease.
, In witness whereof we have this 18th
day Of June, 1896, set our hands and seal.
at Carson City, Nevada.
, Eugene Howell (sEAL)
Frank Paul (sEAL)"
: ave unite in the above lease and agree
upon and accept its terms and conditions
l upon the understanding that the oyalty
} or rental mentioned therein shall be paid
to c. A. Mathewson to be by him held il
: trust and on special deposit to DO pait
: over when it is determined to whom tn,
1 same belongs.
Irene NJ. Robinson (sEAL)
: Rebt. NJ. Clarke (sEALp
j The parties have called it = lease, bu
Q the name they have attached to it cal
) make no difference AZ to its legal effect.
It Bainbridge in his work on tho law Q
e mines and minerals, p. 1885, says: "Ther
r is great distinction between = lease q
). mines and license to work mines. Tn
Q former 10 distinct conveyance Of an ae
5 tual interest or estate in lands, while tn
latter is only . mere incUrpOreal right t
b be exercised in the lands Of others. 1t
II a profit prendre and may be he'll
II apart from tho possession Of land.
In order to ascertain whether a
y instrument must be construed as loas
IS or license, it is only necessary to dote
10 mine whether the grantee has acquire
n by it any estate in the land, in respect {
d which he MIGHT hiring an action of eiec,