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

lila
m~ineralized domain, for the mere as
sertion of such a contention would OF
itself defeat the right OF respondent
to locate the territory under the min-
ing law. The validity OF each claim
located by respondent depended upon
the discovery of mineral.
Overman S. NJ. Co. VS.. CorcoiaIi,
IS New. 14o.
Golden VS.. Murphy, 81 New. 395. ,
The act of making a location ana
the maintenance of the same upon tile
public lands looks for its validity to
the assertiCI of the locator that the
same is miueralized and that the DIS
covery of mineral has been Actually
made.
Golden VS.. Murphy supra.
For the maker of a mining location
to declare that the territory embrace
ed within the lands OF his location
was non-mineral in character Would
be the equivalent to declaring his 10
cation to be null and void, and his
right to possession, use or occupan-
sy OF the public domain under the
mining laws of the land would auto
matically cease.
The contract here in question was
one which to our mind indicates a
Joint adventure into by the parries
for mutual gain and this to be &C
quired from the sale and disposition
for agricultural purposes Of the very
lands, to which respondent here
claimed title under her declaration
that she held a valid location based
| upon the discovery of mineral.
The agreement entered into pro-
vides that: -.
"As a further consideration for this
agreement, said second party hereby
agrees to make application under the
law known as the Carey Act in the
| State OF Nevada for withdrawal Of al
of said lands so relinquished and
abandoned by first party and her as
sociates: X and in the
Aent such application is approved by
the proper State and United States
government officials. said second
party shall appropriate and develop
such of said lands as he dcems prac-
tical and capable of development, &C
cording to the provisions of said Car
| ey Act; the same to be sold and dis
posed OF to the best ability OF the
parties hereto"
The contract further provided that
| the appellant here, the second party
to the instrument. should pay 70 the
first party one-eighth Of any and al
money received from sales OF land
procured under the agreement.
1t might be we'll at this juncture to
note that the Act of Congress known
as the Carey Act and that under
which the parties here were to carry
out the provisions OF their contract
IS n enacted ito aid the public-lano
| States in the reclamation of the des'
ert lands therein. and the settlement
cultivation and sale thereof in small
tracts to actual Settlers Us Stat
L., 372-422l The Act was passed
that it's provisions might be in fur
therance of a former act Of Congress
entitled: "A.n Act to provide for the
sale of desert land in certain State:
4 and Territories" The Act. amons
other things, provides that the lane
may be withdrawn from the public
domain and segregated to the stat
under rules and regulations prescrlb
ed by the Secretary Of the Interior
The law itself as well as the regula
tions prescribed by the Secretary o
the Interior. provide among othe'
things that an application for tn
withdrawal of the lands from entr,
and~.their segregation under the Ac
shall be accompanied by an affidavit
based upon personal examination
that the lands sought to be withdraw
are desert in character as contem
plated by the Carey Act and are o
mineral. Hence we have here a rath
Ter anomalous situation presented b.
the contract in question, in winch tn
respondent, plaintiff in the court be
low set I'D as a valuable consideration
the abandonment OF a right to tn
control and possession OF public do
main under the assertion that tn
same was mineral in character. Ihi
abandonment however. the sole an
only consideration on the part OF re
,pondent. was made in furtheranc
of a scheme in which according t
the terms of the contract, she wa
: ljointly interested the success {
which scheme depended upon til
v non-mineralized character of the yer
land which she claimed to relinqulsl
If the public domain over which RI
spondent's mining claims were loca
> ed was non-mineral. then she had n
+ right or claim or title. under the mil
u ing laws. to the land embraced witt
in her claims. Ii the territory cove
r ed BY the mining claims was mine
allied in character. it was lmposslb
to carry out the scheme contempla
ed by the contract. in which semen
she was jointly interested and by II
success of which alone she cou
claim anything from appellant her
n in. If the land in Question was no
mineral/respondent had no right
control or possession of the terrific
covered by the claims, hence she co
le veyed nothing OF value as a%-consi
Grafton. If the land was mineral
y character. that of itself ipso facto d
lie feated the scheme and made the thu
;" sought to be carried out under t
contract impossible. hence p%erforr
ance by the appellant was impossib
,e That the contract is void as bei1
al IMPOSSIBLE of complete execution
made manifest when we view it fro
n, another angle. The contract pr
- 81 Q1fMl q