Opinion of the Court-Norcross, J. 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. Stats. 1901, p. 1424]. (2) Between placer and lode claimants under the provisions of section 2333 [U. S. Comp. Stats. 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 vein or lode between different claimants of Opinion of the Court-Norcross, J. the same lode, under section 2320 (U. S. Comp. Stats. 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. Stats. 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 Statutes (U. S. Comp. Stats. 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 court 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 M. 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 Opinion of the Court-Norcross, J. 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 M. 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 appellants has not been questioned that the location monument of the Idol's Eye claim and the location monument of the Ramsey Extension clafm were one and the This fact may be inferred from the evidence, and for the purposes of the motion 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 discovery, 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. same. Opinion of the Court-Norcross, J. 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 to 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 is justified, at least for the purpose of the motion, in pre Opinion of the Court-Norcross, J. suming the existence of a discovery, because of the fact that there is, in effect, an admission by both parties that such discovery exists. If it were shown that a person had posted a location notice where there were no indications whatever of a lode or vein, and that subsequently another person, as a result of sinking a shaft at that point, or by some other development work, had discovered a vein not indicated upon the surface of the ground, it could hardly be said that such second party, by reason of the fact that he posted his location notice at the same point as the first claimant, thereby admitted that such prior claimant had also there made a discovery. But such is not the state of facts disclosed by the evidence in this case. Indulging in all legal presumptions, and construing the evidence, under the rule heretofore quoted, most favorably in favor of the appellants, we are compelled to say that the evidence warrants the inference, at least, that both parties to this action are claiming the right to hold the ground in controversy under the same claim of discovery. Under such state of facts the evidence upon the question of discovery was sufficient upon which to have based a denial of the motion for a nonsuit. For the reasons given, the judgment and order are reversed, with directions to the lower court to grant a new trial. |