Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-01

us to consider any of the phases of
the appeal that might have been af-
1ected by the motion to strike. The
motion to dismiss the appeal was not
wen taken as against the appeal from
the judgment alone, inasmuCli as the
time for such an appeal had not ex-
PRED.
The judgment is reversed.
1t is SO ordered.
!, M'CARREN. ].
| concur
NORCROSS. c. ].
=! concur in the order: And viii later
fle an opinion stating my views.
COLEMAN, J.
COLEMAN, J..
While | concur in the order OF re-
versal, | can not agree with the in
depreciation put upon the contract in
question by the court, as expressed
in the following language:
"For the maker OF a mining loca-
ton to declare that the territory en-
braced within the lands of his loca-
ton was no~n-n1ineral in character
would be equivalent to declaring his
location to be null and void, and his
right to possession, use or occupancy
of the public domain under the min
ing laws of the land would automat-
ically cease"
In my opinion, there is not n
word in the contract to justify this
construction. Whether the mining
claims mentioned in the contract
were. located as lode mining claims
or as placer claims, for oil or other
minerals. does not appear. 1t is a
we1l-knc wn fact that there have been
r,any thousands # acr' oi lA-ia 10
Gated and patented as mineral or non
mineral that might have been. with
propriety, located and patented as OF
the other class. In some instances
land has been held to be mineral by
the courts and agricultural by h
land department, both tribunals act
ing upon substantially the same evil
| dence. A striking example of this
was brought to our attention in the
recent case Of Earl V. Morrison. 80
New. l2O,r 154 Pac. Is. Suppose in
that case the locator under the scrip
(who finally prevailed). realizing the
delay, enormous expense. and other
in~conveniences incident to prolonged
itlSuAioii Doth III IN NotI ohh
fore the land department. had enter
ed into an agreement with the placer
locators. whereby it wa agreed that
thew should cancel their scrip loca-
tons and permit the placer locators
to proceed to patent without con-
test, upon the condition that the plac-
er locators might work the land tor
mineral and that the scrip locators
might cultivate it, each so operating
as not to interfere with the other. and
that after all the mineral was ex-
hausted the land should be conveyed
in fee to the scrip locators, would
anyone say that there would be no
consideration for the canceiling OF
the scrip location? l think not.
Suppose Jones and associates
should locate a tract of land as a plac-
err claim for the purpose OF mining
for oil. The land has ali the indica-
tons that oil can be found by pros
pecting. They are all poor. men.
Shortly after the oil locations are
made, Brown and associates. men OF
kwealth, come along and say to Jones
ard associates. THE land which you
have located for oil will grow fine
alfalfa, and there is a large stream OF
water near by with which it can be
lIllSdlCU. w IL SoIhS ~ o'N
2nter the land under the Desert Act
and appropriate the water for irriga"
ton purposes. Now, we do not care
for the oil, and if you will abandon
your locations for oil, we will patent
the land under the Desert Act and
Eenter into contract with you that you
may go upon the land and prospect
for oil as soon as~we get Our patent,
and that your operations shall be
without hinderance from us" Jones
and associates. having no money with
which to llt1gate, and knowing that
some Of the best agricultural land in
the world produces the highest quail
ity Of oil, accept the proposition.
abandon the placer location. and
, Brown and associates procure their
patent. Jones and associates 60 up
on the premises, put down a well and
[ get oil. Browns and associates eject
: them. Would anyone say that Jones
I and associates would have no rene
r dy2 What is the difference between
! the supposed case and the one at bar !!
r We will suppose another case. John
: Smith. a poor prospector. with barely
sufficient to maintain his
existence while developing his prop
erty, locates ground as a placer min
: ing claim. which has all the indica,
e tons to justify it's location as such
V and ninety days thereafter opens VI
S within its boundaries a true insure
/ vein OF high-grade gold ore. Three
e days after opening mp this assure
John Doe, a wealthy man, goes upor
the property and locates the fssur'
j. vein in his name. John Doe goe:
l. to John Smith and says: The ven
which | have located on your placer
t was a known VEIN at the time yot
i located your placer claim. though 20,
may not have known of its existence
It 1t having been a known vein, yo'
II can not hold it under our placer 10
d cation but | do lot want a 'awsui
with you. Now. if you will abandon
re your placer location SO that | cal