Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-12-28

Respondents. A.
Apl eal from the District Court of the
State of Nevada, in and for
Lincoln County. Hon.
G. F. Talbot, Judge.
For Appellant.
Louis Gottschalk,
F. r. McNames,
For Respondents.
BY MasseyJ
Tbs is proceeding in ejectnent and
for damages.
Tie verdict of the jury wa. for the re-
spOn,.ent.
From the judgment rendered thereon
and The order denying the motion for
new trial, this appeal was taken.
Briefly, that part of the answer of the
respondents pertinent to the question
presented on the appeal sets up as a de-
iCuSr luAt TIC ICSppIiuCUtS wcIC III pos
session of the premises in controversy
under and by virtue of a valid mining
location made on the 14th day of jan
nary. 1899, by the respondent, Henry
Hirsching, known as the Hirsching Lode
Mining Claim, record of which had been
duly made upon the records of the Vel
low Pine Mining District, and upon the
rnaOr1a nf hN Ra.nrdor'c of Of in
coin county, wherein said mining claim
and mining district are situated; that
said claim contains large deposits Of
gold, silver and copper ore and is valu-
able only for the precious metals therein
contained; that after making the location
the respondents had done large amount
of development work thereon. and had
erected thereon certain buildings and
plant for the reduction of ores at a cost
Of about S40,OOOOO.
The appellant showed title to the lands
from the State by purchase under patents
issued on the Ord day of May, 1899. 1t
was further shown and is not disputed,
that in the year 1898, the appellant made
application to purchase the lands in con-
agricultural lands under the grant made
by the Act of Congress of June 10th,
1aSO. tU. s. Stats. ls79-1SS2, p. $50 of 2,OOO-
600 acres in lieu of the sixteenth and
thirty-sixth sections before that time
granted for the support Of the commsn
schools. 1t is also conceded that all nee
essary and proper steps were taken for
the. selection Of the lands by the State
and its approval by the proper officers of
the government. 1t was also shown that
ON the 9th day Of February, 1896, and
after the act of selection had been made,
the State entered into contract for the
sale of the lands to the appellant, and
thereafter patents were issued to the ap-
pellant under said contract of purchase
The evidence offered by the respond
ents supports the defense made by that
part Of the answer above set out, and the
jury by it's verdict so found.
Appellant contends that these aver
ments of the answer and the facts shown
Hereunder conceded to be true for thu
purpose Of the argument are no defens,
as against his rights under the patent.
from the State. and are not sufficient tt
authorize either the verdict of the jrr,
or the judgment of the court. 1t is abb,
argued in support of this contention tina
the selection of the lands by the Stat
under the grant, and the approval of sucl
selection by the proper officers of tn
government, was a conclusive determi
nation by the tribunal having autnorit
for that purpose, that tho lands were az
ricultural and nOn-nineral within tn
meaning of the Act making the gran,
that the act Of selection by the State an
it's patents to him gave him the right
the exclusive possession of the lands on
bracsd therein from the time he mad
his application, or at least from the dat
Of the contract Of purchase: that the sui
sequent discovery Of valuable miners
lodss by the respondents gave them n
rights as against the selection by IL
State, and his rights under the State
patents; that any attempt to defeat h
rights in this proceeding under the pa
snts, is a collateral attack upon the fin
ings Of the authorized tribunal that Il
lands were agricultural and nsn miner
in character, and excepted by the u
FIN The grant: that AN attack involvil
the character of the lands could only
made In y direct proceeding institute
for that purpose, and that the entry
tho respondents upon the lands aft
selection by the State, and after app
lant's contract Of purchase had been q
ecuted. was q trespass, and such emit
even though the mining rules, laws a
regulations had been strictly compli
with, did not initiate auy right in the
spondents as against the appellant.
A large number Of authorities are cit
by The appellant to support this conte
ton, and in . proper care would contr
but - The cAsss cited do not, n We
., lieve, apply to the ca. e At lar, We do I
deem Il necessary to discuss or revi
tiem. The qnsstion must bsdetermin
~ ~ view II, BY the application Of c
ts5n Statutory rules, the euacfmsnt off