Opinion of the Court-Norcross, J. Husby, 21 Nev. 453, 33 Pac. 801; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Southern Cross M. Co. v. Europa M. Co., 15 Nev. 383; Gleeson v. Mining Co., 13 Nev. 442; 1 Lindley on Mines, 2d ed. 273.) If it is a necessary step to perfect a valid location, and a failure to make a valid record works a forfeiture of prior existing rights, such legislation must be found clearly expressed in our state statute. Section 24 of the mining act of this state reads as follows: "Certificates of location and of labor and improvements necessary to hold claims need not be sworn to, and are not required to be in any specified form, nor to state facts in any specific order; but must truly state the required facts." (Comp. Laws, 231.) Counsel for appellants urges that the words in this section "necessary to hold claims" refer to the words "certificates of location." We think the legislature intended them to refer alone to the words "labor and improvements." The labor and improvements mentioned in this section refer, we think, to the provisions of the federal statute requiring the expenditure of $100 a year annually in labor or improvements in order to hold a mining claim prior to the issuance of patent. Sections 24 and 25 were not originally a part of the general mining act passed by the legislature of 1897, but were added to the act by an act amendatory of and supplemental to the original act passed by the legislature of 1899. Section 10 of the original act (Comp. Laws, 217) required certificates of labor or improvements "required by law to be annually performed or made upon any mining claim" to be in the form of an affidavit. This requirement, among other things, is obviated by the provisions of the added section 24. The construction we have placed on this section is further borne out by the language of section 9 of the act, which, in part, reads: "The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to wit: One hundred dollars annually. ***" (Comp. Laws, 216.) By referring to the title of the mining act, heretofore quoted, it will be observed that one branch of the legislation covered by the statute is the location, another is the relocation, and another is the manner of recording Opinion of the Court-Norcross, J. lode and placer claims, mill sites, etc. If the contention of counsel for appellants is correct, the words "manner of recording" are mere surplusage and are fully covered by the words location and relocation. Counsel for appellants contends that the words "shall record his claim" used in section 3 above quoted shows that the legislature intended recording to be an essential step in perfecting a valid location. Similar language is used in section 14 (Comp. Laws, 221) of the same act relative to the certificate of location of a placer claim; in section 17 (Comp. Laws, 224) relative to the location of a mill site, and in section 21 (Comp. Laws, 228) relative to the location of a tunnel right. In all these various sections is the provision that, if the certificate as recorded does not contain all the requirements named, such record shall be void. If the legislature had intended that the location shall be void if the record was not made as required by the particular section of the statute, it would have been very easy for it to have said so. Upon the contrary, it has said, not once, but repeatedly, that such record shall be void. The statute provides that these records when properly made are prima facie evidence of the recitals therein contained. Where such records are not made and filed in the manner required by law, they are declared to be void, and hence they cannot be used to establish prima facie the facts which they recite. If a certificate of a mining location was filed which conformed in every particular to the requirements of the statute, with the exception that it failed to set forth the location of the discovery shaft, the certificate would, under appellants' counsel's contention, not only be void as a record, but the whole location would be void, unless the record was corrected before an intervening location was made. If this contention were correct, then, the legislature has, in effect, prescribed that a mere oversight in omitting something required in the record is sufficient to work a forfeiture of valuable mining rights. Such intention we think ought not to be imputed to the legislature, except upon the very clearest language, not susceptible to any other reasonable construction. Commenting on the same provision of our statute, Judge Opinion of the Court-Norcross, J. Hawley, in the case of Zerres v. Vanina (C. C.), 134 Fed. 618, said: "The statute under consideration, while designed to give constructive notice to prospectors of ground claimed by the locators, was also intended for the benefit of the miners making location upon the public domain. It gives to the locator ninety days to record his certificate of location after posting his notice of location, tells him what it shall contain, and declares that, if it does not contain what is required, the 'record' shall be void. It does not say that, if the record is not made, his rights to the claim shall be forfeited. It is important for him to make the record, to record his certificate of location within the time required, and see to it that it contains all of the six requirements stated in section 210. Why? Because, as therein stated, 'any such record or a copy thereof * ** shall be prima facie evidence of the facts therein stated.' But, if he fails to record his claim, it was not intended that he should be deprived of all his rights to the mining ground, provided he had substantially complied with all the other requirements of the mining laws. The record of the location is the inception of what may be called the paper title. It does not of itself constitute title, nor the possessory right to the mining ground to which it relates. *** Suppose the certificate of location had been filed within the time specified, and that it literally complied with all the requirements provided in the statute, but in reality that the statements therein made were 'false.' Such a record would not make the possessory title good. The subsequent locator, notwithstanding the fact that a perfect record had been made, would not be estopped from showing that it was false. If no record at all is made until after a subsequent locator claims a right to the ground, should not the original locator be allowed to prove, if he can, that he had in all other respects fully complied with all the requirements of the law? If he fails to properly record his certificate of location, he may be deprived of the benefits given by law, which would enable him more easily to prove and make out a prima facie case. But it was not the intention of the lawmakers to deprive him of otherwise proving that he had performed the essential acts necessary to give Opinion of the Court-Norcross, J. him the right of possession to the ground." (Last Chance M. Co. v. Bunker Hill S. M. Co., 131 Fed. 579, 66 C. C. A. 299.) It appears from the transcript that the plaintiffs rely upon proof independent of any recorded certificate to establish a valid location of the Ella May No. 1 claim. It is contended by appellants that the proofs show that the plaintiffs abandoned their first location of the Ella May claim, and relocated it as an abandoned mining claim, and that they failed to comply with the requirements of law in reference to the location of abandoned mining claims. The trial court found that it was not the intention of the plaintiffs to abandon their rights, whatever they were, under their prior location; and we think the evidence and circumstances of the case justify this finding. When plaintiffs discovered by the survey that their location work was upon a prior existing claim, they posted a notice that they abandoned such work. This of itself evidenced an intention not to abandon any rights they might still have in their location beyond the area in conflict. They did not remove their first notice from the location monument, and the so-called "notice of relocation" in terms stated the purpose for which it was posted, to wit: "This claim * * is relocated to better describe the locus of said lode claim." It may be that the plaintiffs did not adopt the best course in the premises, or use the most explicit language, but is quite certain that they were acting in good faith, and that no intervening rights were prejudiced. (Lockhart v Johnson, 181 U. S. 516, 526, 21 Sup. Ct. 665, 45 L. Ed. 979; Lindley on Mines, 2d ed. 330.) Appellants contend that there is no sufficient showing of a discovery upon the Ella May claim; that the location work is insufficient in amount and does not disclose a lode or vein of mineral in place; and, further, that the markings of the boundaries are insufficient. As to the question of discovery, even if that question were not taken out of the case by the pleadings as we think it is (1 Lindley on Mines, 2d ed. 404), the most that can be said is that there is a substantial conflict in the evidence upon this question, and, where such is the case, this court has repeatedly held that it will not disturb the finding of the trial court. The same may also, we Opinion of the Court-Norcross, J. think, be said with regard to the location cut. The contention with regard to the sufficiency of the monuments and markings thereon is based entirely upon the assumption that the Ella May No. 1 claim was located as an abandoned mining claim, and that the prescribed method of monumenting and marking such abandoned claim was not complied with. This question has already been disposed of. Other alleged errors are assigned in the transcript, but the views we have already expressed regarding this case make it unnecessary to refer to them. For the reason given, the judgment and order of the trial court are affirmed. |