PER CURIAM. On September 5, 1905, plaintiff recovered a judgment against the defendant by default in an action at law. On February 10, 1906, the judgment was, on defendant's application, under section 102, B. & C. Comp., set aside and vacated, and he was permitted to answer, for the reason that the judgment was taken against him through mistake, inadvertence, and excusable neglect. From this order the plaintiff has appealed, and defendant moves to dismiss such appeal because the order from which it is taken is not appealable.

The statute provides that an appeal may be taken from a "final order affecting a substantial right" made after judgment or decree. B. & C. Comp. § 547. The order in question is not of that character. It is not a final order, but merely vacated the former judgment for the purpose of a trial upon the merits of the original action. It was within the power of the court to make, and is therefore not appealable. Deering v. Quivey, 26 Or. 556, 38 Pac. 710; Henrichsen v. Smith, 29 Or. 475, 42 Pac. 486, 44 Pac. 496; Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582. 37 L. Ed. 438.

The motion is allowed.

(29 Nev. 169)

FOX et al. v. MYERS et al. (No. 1,689.) (Supreme Court of Nevada. Sept. 1, 1906.) 1. TRIAL-NONSUIT-DETERMINATION.

In considering a motion for nonsuit at the close of plaintiff's case, every fact essential to plaintiff's recovery that his evidence tends to prove and all legal presumptions arising from such evidence must be taken as established.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 352, 372, 399, 400.] 2. MINES AND MINERALS-LOCATION-DISCOVERY OF MINERAL.

When a locator of a mining claim finds rock in place containing mineral in sufficient quantity to justify him in expending his time and money in prospecting and developing the claim, he has made a discovery within Rev. St. U. S. § 2320 [U. S. Comp. St. 1901, p. 1424], providing for priority of location rights on the discovery of mineral in the public domain, whether the rock or earth is rich or poor, provided that in a lode claim the lode must have special reference to the formation and peculiar characteristics of the particular district in which it is found.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 24.]

3. SAME-LOCATION NOTICE EVIDENCE OF DIS

COVERY.

Under Comp. Laws, § 208, requiring that a mining claim location notice shall be posted "at the point of discovery," but not requiring that the same shall contain a recital that a discovery has there been made, a notice containing such recital is not prima facie evidence of a discovery.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 37, 50.] 4. SAME.

The posting of a notice under such section at a certain point establishes that at that point the locator claims a discovery.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 37, 50.]

5. SAME PRESUMPTION OF DISCOVERY-CONFLICTING CLAIMS.

Under Comp. Laws, § 208, requiring that a notice of the location of a mining claim be posted "at the point of discovery" where conflicting claimants both posted their notices at the same point, such fact in the absence of evidence to the contrary warranted a presumption that both based their claim of a discovery on the same natural conditions, and that a discovery of mineral, therefore, actually existed.

Appeal from District Court, Esmeralda County.

Action by Samuel Fox and others against A. D. Myers and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed with directions to grant a new trial.

C. F. Reynolds, for appellants. Vernolyea & Bartlett, for respondents.

NORCROSS, J. This is an action of ejectment to recover possession of a certain mining claim in Goldfield mining district, Esmeralda county. Upon the trial of the cause in the court below, after plaintiffs had offered their evidence, counsel for respondents interposed a motion for a nonsuit. The motion was granted, and judgment entered accordingly. Plaintiffs appeal from the judgment, and from an order denying their motion for a new trial.

The allegations of plaintiffs' complaint which are material in the consideration of the questions presented upon this appeal, are substantially as follows: That on the 28th day of May, 1903, the said plaintiff Carl Schmidt, for himself, and on behalf of the other said plaintiffs, located, in accordance with the mining laws, a certain mining claim in Goldfield mining district, by erecting thereon a location monument, and posting a location notice therein, naming and designating said claim as the "Ramsey Extension." That on the 26th day of August, 1903, while plaintiffs were in the lawful possession of said claim, the defendants wrongfully, unlawfully and fraudulently entered into and upon said mining claim, and by their wrongful, unlawful and fraudulent acts did oust and eject the plaintiffs from the possession of said mining claim, and ever since said time have continued to so wrongfully, unlawfully, and fraudulently withhold said claim from the plaintiffs. That on the said 26th of August, 1903, the said plaintiff Fox, for and on behalf of himself and the other of said plaintiffs, did go upon said mining claim to complete the location of the same, in accordance with the requirements of law, but was prevented from so doing by reason of the aforesaid wrongful acts of defendants. The defendants' answer consists of a specific denial of each of the allegations of the complaint.

The principal question, presented in this case, and the only one argued by counsel for respondents, is whether the evidence offered and admitted was sufficient to entitle plain

tiffs to recover under the pleadings. The trial court, in ruling upon the motion for a nonsuit, held that the plaintiffs had failed to show that they had made a discovery upon which a mining location could be based. As the question whether there was any evidence upon the part of the plaintiffs establishing, or tending to establish, a discovery as a basis for the location of the mining claim called the "Ramsey Extension," has been the only material question considered by counsel upon both sides, the evidence will be reviewed solely with reference to this one question. Excluding all reference to matters clearly immaterial, the following is substantially the testimony admitted upon the trial:

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*

Mr.

T. L. Oddie, one of the plaintiffs, testified as follows: "I know Samuel Fox, James Ennis, and Carl Schmidt. I know the mining district called 'Grandpa,' now called and known as 'Goldfield Mining District.' I know the greater part of land in controversy in this action. * * Mr. Fox, Mr. Ennis, Mr. Schmidt, and myself were partners in locating some claims in that district. Either in May, or a short time afterwards, I paid the expenses of Mr. Schmidt to Grandpa mining district. ** * Schmidt brought me some rock to have it assayed. I had the rock assayed, and Mr. Schmidt came to the office afterwards to learn the assay. * Q. About when was that location made? A. I know it was in the spring of 1903, I think it was about in May. Q. If the original location notice should say the 28th day of May, would that be about correct? A. Yes, sir, as far as I know. * * I know the defendant Beauchamp. I knew him on or about the 28th day of May, 1903. Some little time after that I had a conversation with Beauchamp in my office. The question in regard to this suit came up, and Mr. Beauchamp told me some of the facts connected with the relocation of this ground. He said, 'Mr. Myers and Mr. Murphy,' I have forgotten which spoke to him about the ground-about relocating it. Mr. Beauchamp told me that Mr. Myers or Mr. Murphy were going to locate this ground. He was on the ground when they were going to locate it; that was two weeks before the claim ran out. He said they wanted to locate that ground, and he pointed out to them that this particular claim had not run out." The testimony of A. D. Myers, one of the defendants, was taken by deposition. His testimony was admitted as follows: Q. Where is your place of residence? A. Goldfield, Nev. Q. What is your occupation? A. Miner and prospector. Q. Have you located any mining claims up there? A. Yes, sir. Q. Mr. Myers, have you a notice of location of a claim in your possession that was upon the claim known as the 'Idol's Eye' on the 26th day of August, 1903? A. Well, I don't know whether the notice I have was on then or not. (Here the witness hands a notice

to Mr. Reynolds, attorney for plaintiffs.) * * Q. Did you see any notice on the claim that day? A. I am quite positive that I did not; it was on the 27th or 28th of August. Q. Did you see the notice that you have presented here on the claim on the 27th or 28th? A. Yes, sir, I did. Q. Do you know W. I. Beauchamp? A. I know a man named Billy Beauchamp. Q. Did Billy Beauchamp have anything to do with the notice on the Idol's Eye? A. I do not know. I was not there at the time. Q. Were you one of the original locators of the Idol's Eye? A. That claim was located for me. Q. By whom? A. I think it was Billy Beauchamp. Q. Mr. Myers, where did you get this notice of location of quartz claim, the one that you have handed to me? A. I got it out of the Idol's Dye location monument. Q. And what day did you get it? A. I can't recall the date. It was some time in September or October. Q. Did you take it from the claim called the Idol's Eye yourself? A. Yes, sir. * Q. * ** Do you know when the notice of location was placed on the Idol's Eye? A. I know when I found it, and that is all I know. Q. Do you know who placed that notice of location upon the luol's Eye? A. I presume Beauchamp did; he was the locator; he located it for me. Q. That is the W. I. Beauchamp that we have referred to? A. I think it is. * * * Knowing that Billy Beauchamp was going to locate a certain piece of ground covered by this location [petitioner's Exhibit A] or a portion thereof, I asked him to locate me in on it. On the 27th or 28th day of August, 1903. I came by where he was working. I saw two monuments. I went to one of them. I found that he, Billy Beauchamp, or whatever you call him, had located for me this said Idol's Eye mining claim."

**

Samuel Fox, one of the plaintiffs, testified as follows: "I know James Ennis, Carl Schmidt, and T. L. Oddie. I know the mining district called 'Grandpa Mining District.' * I located ground in the Grandpa district about the 28th day of May, 1903. The name of the claim that I located was the 'Ramsey Extension,' which was located in Goldfield mining district. # * * On or about the 25th day of August I left Tonopah to go and finish some work that was started on the claim. We camped on the other side of Klondike Wells. On the morning of the 26th we hitched up and started out for what was called the 'Grandpa District,' we got out there on the ground, and the first man I met was Mr. Beauchamp; he was coming from the mountain with a load of wood. When the location was made on the 28th day of May, about that time we made an agree ment with Schmidt that he, Schmidt, should go out and complete the work on the ground. ***He went out the second time. After his return about the 6th or 7th of June, * I went out to Grandpa District. My purpose in going out was to com

*

plete the work. When I got there I looked for a notice with our names on so I could tell the ground. I looked all over the country. Q. Did you find any location notice with your name upon it? A. I did not, sir.

*

From information that I received I made an examination of the mining claim represented in the complaint, and made inquiries. I looked all over the ground to see if I could find any location notice of mine, and I could not. I met Mr. Beauchamp in that vicinity, I said: 'Billy, would you show me where my ground is?' He pointed me an opposite direction from where my ground was. I went in that vicinity and looked all around, and could not find it. Later on in the day, before I left there, I went to him again and said: 'Billy, will you show me where my ground is?' He answered, 'Up there,' and pointed in a different course from where my ground was. Q. Had you any information as to what vicinity your claim lay? A. Yes, sir, I was informed it was adjoining the Ramsey ground. Q. Now then, did you find the Ramsey ground? A. Yes, sir, I think I did, the Ramsey ground. Q. Did you look faithfully all around the Ramsey ground to see if you could find the location of the Ramsey Extension? A. I looked all around, but could not find anything. I know now where the notice of location of the Ramsey Extension mining claim was placed. Q. Was there any outcropping in or near that monument or location notice? A. There was. Q. How far from it and in what direction? A. It runs in about a northeasterly direction, maybe 40 or 50 feet from the monument. Q. Do you know anything about that cropping as to what it contained, if it contained anything? A. I have seen an assay from it.

*

*

* Q. Do you know the rock that you had assayed came from this focation? A. The rock was sent from that location. When I speak of the ground I refer to the ground in controversy in this action. I met Mr. Beauchamp on the ground about 30 or 40 feet from the location monument. One of the Beauchamps was digging a hole, and the other was hauling wood. At that time there was a notice of location by defendants of the Idol's Eye; that was the 26th of August."

*

James Ennis, one of the plaintiffs, testified as follows: "On or about the 28th day of May, 1903, Mr. Oddie, Mr. Fox, and myself entered into an agreement with Mr. Schmidt to locate and prospect for mining claims. ** He [Schmidt] returned the following Saturday; I think it was the 30th. He returned and brought with him some samples. I saw the samples. The following Sunday we took the samples to Mr. Oddie's office, and asked Mr. Oddie to have them assayed, and the rock showed values. When it showed values, Mr. Fox, Mr. Oddie. and I decided to send Mr. Schmidt there to do the location work, and if I remember right, on the 3d day of June he left Tono

*

pah for Grandpa to do the location work on this claim. We furnished him with a team and provisions. Q. Do you know that he did any work? A. All I know is what he told me after he returned. After he returned we decided to send him there again to complete the work. By that I mean put the hole down the proper depth according tc law, he had only dug a few feet. He did not go right back again. Q. Did you hear anything that he did or did you know of anything? A. He dug a hole out there I learned that he had discovered a vein, and we decided to complete the work-decided to send Mr. Schmidt out there again to complete the work. I left Tonopah about the 7th day of August, 1903. The day I was leaving I saw Mr. Fox. I told him I was out of work, and wanted him to go out and do the work, and whatever my share was I would contribute. From what Mr. Schmidt told me I know that the notice of location which was offered in evidence was taken from the Ramsey Extension."

Harry Stimler testified as follows: "In 1903 I resided in Goldfield. I know the Grandpa district, and knew it in 1903. I know the mining claim located there under the name of T. L. Oddie, James Ennis. Samuel Fox, and Carl Schmidt. Q. Do you know a claim located on or about the 26th day of August, 1903, in the Grandpa mining district, known as the 'Idol's Eye Claim'? A. I know where the location of the Idol's Eye claim is. The Idol's Eye takes in a part of the Ramsey Extension; the claim located by Oddie, Ennis, Fox, and Schmidt. I don't know whether it takes it all in or not. Q. Upon that location did you see any indications of an outcropping, I mean the Ramsey Extension? A. Yes, sir, I saw the outcropping. Q. Mr. Stimler, did you, on or about the 20th day of August, see any one working upon the Ramsey Extension as you know it now? A. Yes, sir. The Beauchamp brothers, they continued working there several days. I had a conversation with Beauchamp on or about the 26th day of August. 1903, with reference to the Ramsey Extension. He said Foxy Grandpa had been out there before, looking for his ground, down where they were working; asked him if he knew where it was, and he said 'No'; told him he thought it was over near Columbia somewhere." I don't remember what all was said. I remember that he said 'they had fooled him.'"

John W. Cuddeback, testified as follows: "I was residing in Goldfield on or about the 28th day of May, 1903, and resided from that time up until the 26th of August, 1903. My business is that of mining and teaming. I have been mining about 20 years. Q. Do you know the general appearance of the land in and about Goldfield, as to its being mineral, or otherwise? A. I do. Q. Do you know the land claimed and known as the 'Idol's Eye Mining Claim'? A.

Yes, sir. Q. Do you know the land that was claimed and is the Ramsey Extension mining claim? Yes, sir. Q. On the Ramsey Extension is there what is known and called an 'outcropping'? A. There is."

The following is a copy of the location notice referred to in the deposition of A. D. Myers, which was admitted in evidence, marked "plaintiffs' Exhibit A":

"Notice of Location of Quartz Claim. Notice is hereby given to all to whom it may concern: That James Ennis, S. Fox, L. F. Oddie, C. Schmidt, citizens of the United States, over the age of 21 years, having discovered a vein or lode of quartz. or rock in place, bearing within the limits

of the claim hereby located, have this day under and in accordance with the Revised Statutes and other laws of the United States, located 1,500 linear feet of this vein or lode, with surface ground 600 feet in width, situated in Grandpa mining district, county of Esmeralda, state of Nevada, and known as the Ramsey Ext. quartz mining claim, and extending feet to and

at the discovery or prospect shaft, the exterior boundary of this claim being distinctly marked by reference to some object or permanent monuments, and more particularly described as follows, to wit: Commencing from this location monument and running 300 feet southerly and 1,200 feet northerly direction. And we intend to hold and work said claim as provided by the local customs and rules of miners and the mining statutes of the United States. Dated on the ground this 28th day of May, A. D. 1903. Attest: James Ennis."

In considering the question whether the evidence produced by the plaintiffs was sufficient to establish the fact of a discovery by them upon the Ramsey Extension claim, it must be understood that the evidence is to be tested by the rules governing in the case of rival claimants to the same mining ground, taken in connection with the liberality with which evidence is construed in favor of the plaintiffs on a motion for a nonsuit. Upon the latter proposition, this court in the case of Patchen v. Keeley, 19 Nev. 409, 14 Pac. 347, had occasion to say: "In considering the court's ruling in granting the nonsuit, we must take as proven every fact which the plaintiff's evidence tended to prove and which was essential to his recovery, and give him the benefit of all legal presumptions arising from the evidence." We also quote with approval the following language of the Supreme Court of California in the case of Hanly v. California Bridge Co., 127 Cal. 237, 59 Pac. 577, 47 L. R. A. 597: "The motion for a nonsuit admits the truth of the plaintiff's evidence, and every inference of fact that can be legitimately drawn therefrom, and upon such motion the evidence should be most strongly interpreted against the defendants. This rule must be applied to all the evidence submitted by plaintiff."

In Migeon v. Montana Cent. Ry. Co., 77 Fed. 254, 23 C. C. A. 161, the United States Circuit Court of Appeals, in an opinion written by Judge Hawley, points out in the following manner the distinction that exists in various classes of cases, upon the question of the proof that will be required to establish a discovery: "There are four classes of cases where the courts have been called upon to determine what constitutes a lode or vein within the intent of different sections of the Revised Statutes: (1) Between miners who have located claims on the same lode, under the provisions of section 2320 [U. S. Comp. St. 1901, p. 1424]. (2) Between placer and lode claimants under the provisions of section 2333 [U. S. Comp. St. 1901, p. 1433]. (3) Between mineral claimants and parties holding townsite patents to the same ground. (4) Between mineral and agricultural claimants of the same land. The mining laws of the United States were drafted for the purpose of protecting the bona fide locators of mining ground, and at the same time to make necessary provision as to the rights of agriculturists and claimants of townsite lands. The object of each section, and of the whole policy of the entire statute, should not be overlooked. The particular character of each case necessarily determines the rights of the respective parties, and must be kept constantly in view, in order to enable the court to arrive at a correct conclusion. What is said in one character of cases may or may not be applicable in the other. Whatever variance, if any, may be found in the views expressed in the different decisions touching these questions arises from the difference in the character of the cases, and the advanced knowledge which experience in the trial of the different kinds of cases brings to the court. * The fact is that there is a substantial difference in the object and policy of the law between the cases where the determination of the question as to what constitutes the discovery of a vei or lode between different claimants of the same lode, under section 2320 [U. S. Comp. St. 1901, p. 1424], on the one hand, and a lode known to exist within the limits of a placer claim at the time application is made for a patent therefor, under section 2333 [U. S. Comp. St. 1901, p. 1433], on the other. The question as to what constitutes a discovery of a vein or lode under the provisions of section 2320 of the Revised Stattutes [U. S. Comp. St. 1901, p. 1424] has been decided by many courts. All the authorities cited by appellants are referred to in Book v. Mining Co. (C. C.) 58 Fed. 106, 121. The liberal rules therein announced are substantially to the effect that when a locator of a mining claim finds rock in place containing mineral in sufficient quantity to justify him in expending his time and money in prospecting and developing the claim, he has made a discovery within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low, with

**

this qualification: that the definition of a lode must always have special reference to the formation and peculiar characteristics of the particular district in which the lode or vein is found. It was never intended that in such a case the courts should weigh scales to determine the value of the mineral found as between a prior and subsequent locator of a mining claim on the same lode."

The same court in Shoshone Min. Co. v. Rutter, 87 Fed. 801, 808, 31 C. C. A. 223, again said: "The purpose of the statute, in requiring that 'no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim located,' was to prevent frauds upon the government by persons attempting to acquire patents to land not mineral in its character. But as was said in Bonner v. Meikle (C. C.) 82 Fed. 697: 'It was never intended that the court should weigh scales to determine the value of mineral found, as between a prior and subsequent locator of a mining claim on the same lode.' The location of the Kirby was made in 1886. The discovery of mineral then made was sufficient to induce the locators and their grantees to perform the amount of annual labor thereon as required by the mining laws-to expend their time and money in prosecuting the work thereon-in the belief and expectation of finding ore of profitable value therein." The following authorities are to the same effect: Book v. Justice Mining Co. (C. C.) 58 Fed. 120; McShane v. Kenkle, 18 Mont. 208, 44 Pac. 979, 33 L. R. A. 851, 56 Am. St. Rep. 579: Muldrick v. Brown (Or.) 61 Pac. 428; Iron S. M. Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. 481, 29 L. Ed. 712; Harrington v. Chambers (Utah) 1 Pac. 375; Ambergris Min. Co. v. Day (Idaho) 85 Pac. 109; 1 Lindley on Mines (2d Ed.) § 336.

The evidence in this case shows that. at or near the location monument of the Ramsey Extension claim, there was an outcropping, and we think it may be inferred from the evidence that this outcropping carried values. We think it also may be inferred from the evidence that the plaintiffs intended to base their claim of a discovery upon this outcropping when they erected the monument and posted their notice of location of the Ramsey Extension claim upon or near it. It is not necessary to determine whether this state of facts alone would be sufficient to justify the trial court in denying the motion for a nonsuit; but, taken in connection with other facts which are shown, or which may be inferred from the evidence, we think the showing was sufficient to require that the motion be denied. The contention of counsel for appellant has not been questioned that the location monument of the Idol's Eye claim and the location monument of the Ramsey Extension claim, were one and the same. This fact may be inferred from the

dence, and for the purposes of the mo

tion it should be considered as an established fact. Our statute (Comp. Laws, § 208) requires that the notice of location be posted "at the point of discovery." Therefore, when a locator erects a location monument and puts his location notice thereon, he, in effect, declares that at that point he has made a discovery. This is so in order that another prospector going upon the same ground may not only see that some one else claims to have initiated a location, but upon what dis covery, or alleged discovery, if any, such claim is based. Many years prior to the adoption of our statute this court had occasion to refer to the importance of having the location notice posted at an appropriate point upon or near the ledge.

In the case of Phillpotts v. Blasdel, 8 Nev. 75, the court said: "In order to hold a ledge, it is not necessary that the notice should be placed on the ore or any part of the vein or lode. It is sufficient, as the jury was instructed, if the notice is placed in such reasonable proximity and relation fo the ledge, as in connection with the work done under it, to give notice to all comers what ledge is intended."

.

In the case of Gleeson v. Mining Co., 13 Nev. 465, the court said: "A notice is generally, and for safety ought always to be, posted immediately upon the discovery of the vein, before there is any time to survey the ground and ascertain the bearings and distances of natural objects or permanent monuments in the neighborhood; and besides, the claim referred to by the notice is always sufficiently identified by the fact that it is posted on, or in the immediate proximity to, the croppings. A notice, claiming a location on 'this vein' has only one meaning."

It will be seen that our statute has gone farther and makes it the duty of the locator, after he has made a discovery, to put his location notice at such point of discovery. Proof of posting a location notice at a certain point, containing a recital therein that a discovery had there been made, as in the case of the Ramsey Extension notice, would not be evidence prima facie of a discovery, as contended for by counsel for appellant, for the reason, if for none other, that the statute does not require the making of such a declaration in the notice. 1 Lindley on Mines (2d Ed.) § 392; 2 Jones on Evidence, § 521. Proof, however, that a notice was posted at a certain point establishes that at that point the locator claims a discovery. When it was shown that the Idol's Eye location notice was placed at the same point as that of the Ramsey Extension, it put the defendants in this action also in the position of claiming a discovery at the same point that the plaintiffs did. Both sides claiming a discovery at the same point would warrant the presumption, in the absence of a showing to the contrary, that both based their claim of a discovery upon the same natural conditions, and, where such a showing exists, the court