Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-07-11

oe County. Hon G. F. Talbot, |
!, Judge, presiding.
Thomas Wren,
A e. cheney,
J. w. Dorsey,
For Respondent.
w. &. r. Deal,
T. s. Ford,
Benjamin Curler,
For Appellants.
Opinion by Fitzgerald, }.
This case was argued and submit
ted, but before judgment was render
ed the justices of the court were III
formed that the controversy between
the plaintiff and the defendants bad
been settled.
We subsequently had citation serv-
ed on each of the counsel for the res
pective parties to the suit that they
appear before the court on day nam
ed and show cause why the case
should not be dismissed for the rea-
son that all controversy between the
parties plaintiff and defendant as to
the matter in litigation had ceased.
On the day named counsel represen-
ting each side of the case appeared be-
fore the court and stated that all con-
troversy between the parties had not
ceased; but that only part had been
settled and part remained unsettled;
and requested the court to take the
case on to a Judgment. Counsel then
stated to the court exactly what had
been done in the way of settlement
between the parties plaintiff and de-
PENDANT.
On the facts stated two questions
arise
First, Is all controversy between the
plaintiff and defendants as to the prop
erty in suit settled and
Second, Ii settled, what disposition
of this case should be made by this
court?
Under the facts as stated to the
court we think all controversy be,
tween the parties as to the property
in suit has been settled.
Referring to the diagram below,
which is in all essential respects a
copy of an exhibit in the case, to-wit:
plaintiffs map "A" with the Reno Bel
claims added showing it's easterly
side line, line 9, 10 on the diagram, one
can understand the matter:
(Diagram)
Plaintiff cdlaimed under his "'Safe
guard" mining location, laid. as can be
seen by inspection of the diagram, or
four kinds of land. to-wit: Cd unpat
ented lands OF the United States il
Section %; 90 unpatented railroad
lands in Section 90 belonging to plain
tiff or under his control; 80 patented
railroad land in Section So belonging
to plaintiff; and ca lands patented un
der desert land applications in Section
80 belonging to defendants.
The matter in dispute was the or
bodies under the surface of defend
ants land in Section 80. The plan
tiff alleged that the said ore bodie
had their apex On his land in Sec
ton 90 and on his Safeguard minin
location partly lying on his said Ian
IN said Section 3d. Plaintiff in hi
prayer for relief asked the judgmen
of the court that said ore bodies wer
his by reason of their apex being o
his said land and claim; and also tina
defendants be perpetually restraine
from interfering Herewith.
On the hearing of the citation it a.
peared that the plaintiff had conveye
to a third party, Mr.. John Sparks, a
of plaintiffs rights, title and interes
to the lands and ore bodies lying t
the eastward of the easterly side lin
of the Reno Pell claim; said easterl
side line ran about one hundred an
thirty-five u35) feet to the west
the ore bodies in dispute. said ore bot
les being near the spot market On tn
diagram Bell Shaft House," nort1
westerly much further than tn
"Safeguard' location extended; an
southeasterly considerably turtle
than said ore bodies were shown I
extend.
1t further appeared that Mr.. Sparl
and the defendant had settled all
their contention: that it had been
greed that all suits between the pa
ties except this suit in this cou
should be dismissed; and that whate
er judgment this court might rend'
in this case should have no effect c
the said settlement, but that said 'se
Element should in all respects stan
the judgment Of this court to the co
trary notwithstt anGirg.
To us it seems clear, Cd that Il
plaintiff, Mr. We0en.i- las conveys
all of his right, title and interest
the matter in controversy to a thi
party. Mr.. Sparks, for the contrOVer
was as to land and ore bodies lyil
to the eastward of said Reno b
easterly side line, anu nothing to Il
westward thereof was in cOntrOvers
and CD that Mr.. Sparks and the
PENDANTS have settled all OF heir di
pute as to the matter in contGo"ers
having conveyed all of their interest
Mr.. sparks.
OF course, under the state of fac
above mentioned Mr.. Sparks has /
come dominus litis on each side of Il
case: and under the decisions of cour
and in sound legal reason the ca
should proceed no further for the wa
OIL dominus little on each side there,
The following authorities suppc