Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-29

!, pear. but IN view of other portions O
. the hndings, this fact is immaterial
II is found that at the time appel
iants entered into the agreement with
lhe RACER company they knew this
hot.ee would necessarily be destroy
ca III preparing said shaft for mimi !,
operations" that said notice was go
oestroyed prior to respondents be,ns
employed by the Placer Company
he statute says a notice shall be
posted after" knowledge of the con-
struction or intended construction,
eye. Assuming, however, without &C.
clding that a prior notice would meet
the requirements of the statute. and
are clearly of the opinion that per-
sons employed after the destruction
OF such notice ought not to be bound
thereby, where it appears that the
work contemplated necessitated a de-
struction of such potice.
The second notice discussed in the
findings was posted march,, 1913, the
day the agreement was entered into
between appellants and the Placer
Company. This notice was written
in lead pencil upon paper which had
long been exposed to the elements
and which Thomas Wilson knew
would not remain legible and intelli-
gible for as long a time as under or
binary conditions an ordinary notice
would be expected to remain This
notice was found to have been post
ed on the transformer house of said
Black Cat Mining Claim" 1t was
further found that it was not posted
n a conspicuous place on said claim"
A notice DoStad on q tapcforrper
house might or might not be said to
be posted in a conspicuous place. Or
d~inarily it would, we think, be very
apt to comply with the requirements
OF the statute. The evidence is not
before us and we are bound to accept
the finding that it was not in a con-
s%picuous place.
Much has been said in the briefs of
counsel tor appellant that the Court,
in effect, held that a notice must not
only be posted but must be maintain
ed. We do not so understand such
to have been the position of the
(court below. A notice must be so
posted as under ordinary conditions
it will remain a reasonable length Of
time, otherwise there would be no
objett in posting a notice at all. a
notice written in lead pencil would be
as good as any other notice, but
whether a notice SOY written and ex-
posed to the clements would remain
a reasonable length Of time is a ques-
ton of fact for the Court below to
determine from the evidence. and
which this Court could not disturb
without reviewing the evidence.
The third notice considered was
posted on the engine house May IS,
1913. two and a half months after the
agreement with the Placer Company
was entered into. 1t is not found
that this notice was not posted in a
conspicuous place. This notice was
not posted within the time prescribed
by the statute. nor has counsel cited
any authorities holding that such a
subsequent notice would be binding.
Upon that question we express no
opinion further than to say that we
are inclined to the view that such a
notice would be a valid notice, but
would have no retroactive effect. The
Court found this notice. also, to have
been "illegible and uintelligible at
the time that the plaintiff and inter-
venors commenced working" It is
further found that the defendant Viii
SOL kHSN With lie poStSu tHlS hOtiNN
that 1T would not remain le2ible and
.n%telligible for as 1Or~ a time as an
ordinary notice would be expected to
remain So
As before stated. the evidence is
ings are attacked upon the ground
that they are not supported by the
evidence. SO far as this Court knows.
L %ln Jofo,,Io,4 ,,,o, VIC oI,,, tod fho
very facts found. 1t must be on
coded that the findings present qnes-
lions of law to this Court i'll a very
unsatisfactory way. The law only
saws that a notice shall be posted. 1t
says nothing about maintaining such
a notice. 1t will not do, however, to
of a notice in a conspicuous place
complies with the statute. A notice
might be posted so written that 1t
would not remain ineligible for a
day. Such a notice manifestly could
not be held to comply with the law.
The purpose OF the statute is to give
actual notice. The law only exacts a
reasonable compliance with the stat
ute. but what is a reasonable compli-
ance must depend upon the facts OF
tNdNIl pa AdSS.
ten in lead pencil on a piece of card
board or upon a piece Of paper which
had been exposed to the elements
might in every respect comply with
the statute. If. however, it was SO
posted that any person OF ordinary
common sense would know that IT
would in a few days be effaced from
exposure to the elements, a court
would he justified in holding such a
posting not to be a compliance Win
the statrto0
We cannot say as a matter OF law
in this Ease that the judgment is con-
trary to the findings.
The objection to the allowance OF
, costs in the Justices court is well
! taken.
The judgment will be modified by
striking therefrom the costs in the
Justices Court and as SO modined, i