Volume 36 — Nevada Reports

Original proceeding in prohibition 'by Louis D. Gordon against the District Court of the Fifth Judicial District; Mark R. Averill, Judge, and W. A. Ingalls, Sheriff. The facts sufficiently appear in the opinion. The affidavit for publication of summons must state a .cause of action. {VictorM. Co. v. Justice Court, 18 Nev. 21; Comp. Laws, 3125.) The criminal complaint against Davidson stated a public offense and inyested the justice with jurisdiction. (Comp.

Moran, Judge. Action by Melchoir Whise against Esther Whise. From an order granting defendant permission to aménd her notice of motion for a new trial, plaintiff appeals.

N. French, Judge, presiding. Action by Phillip H. Wolf against Humboldt County. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. As respondent accepted and was paid the allowance on these claims made by the county commissioners, he is not entitled to sue for the amounts so disallowed. See 117 111. App. 622; 75 Pac. 569; 81 N. Y. S. 648; 94 N. Y. S. 517; 104 111.

<p>1. Vendor and Purchaser- — Vendor’s Lien.</p> <p>While a vendor ordinarily has a lien on the land for the unpaid purchase money, his right to hold and maintain such lien must be determined from the nature of the transaction, the circumstances surrounding the conveyance, and the intention of the parties at the time of making the contract, for the right of a vendor cannot be determined by subsequent acts of either party.</p> <p>2. Vendor and Purchaser — Vendor’s Lien — Right To.</p> <p>Though vendor ordinarily has a lien for unpaid purchase price, such lien cannot be claimed where vendor has accepted other security for payment of the price, such as a promissory note or a mortgage.</p> <p>3. Vendor and Purchaser — Vendor’s Lien — Presumptions.</p> <p>It requires no express waiver on the part of a vendor to destroy his vendor’s lien for the unpaid purchase price; the law presuming a waiver whenever the vendor accepts any independent security.'</p> <p>4. Vendor and Purchaser — Vendor’s Lien — Right To.</p> <p>Where a vendor of land accepted a certificate of deposit in payment of the purchase price, or at least as security for that portion of the purchase money indicated by the face of the certificate of deposit, and there was nothing to show that the vendor was imposed upon by artifice or trick, his right to a vendor’s lien was waived.</p> <p>5. Payment — Checks—Effect.</p> <p>A debt cannot be discharged with an unpaid check, except upon a clear showing that the creditor at the time accepted such check absolutely and unconditionally.</p> <p>-6. Appeal and Error — Review—Findings.</p> <p>Where the evidence is conflicting, a finding of the trial court will not be disturbed on appeal.</p> <p>7. Bills and Notes — Certificates of Deposit — Effect.</p> <p>Certificates of deposit are promissory notes, and have the same force and effect as a promissory note; indorsers thereon being bound by the same rules that apply to indorsers on a note.</p> <p>■'8. Bills and Notes — Indorsement—Effect.</p> <p>A person who indorses a note in blank usually warrants the solvency of the parties.</p> <p>'9. Bills and Notes — Indorsement—Liability of Indorser.</p> <p>Under Revised Laws, 2613, providing that every indorser, without qualification, warrants that on due presentment it shall be accepted or paid, and that, if dishonored, he will pay the amount thereof to the holder, one who indorses in blank a certificate of deposit is liable to the holder where the paper is dishonored owing to the insolvency of the bank.</p> <p>10. Bills and Notes — Indorsement — Liability of Indoeser — Burden of Proof.</p> <p>In general, where an indorser contends that his indorsement was understood to be other than a warranty of payment, he has the burden of proving the same.</p> <p>11. Bills and Notes — Indorsement—Effect of Indorsement.</p> <p>Where a certificate of deposit already indorsed in blank is negotiated by the holder, nothing that the holder can do will alter the liability of the indorser.</p> <p>12. Vendor and Purchaser — Liability of Purchaser.</p> <p>A vendee who is the real purchaser is liable for the purchase price, even though he directs the title to be transferred to another.</p>

Motion by Marvin Arnold and others, as interveners, to set aside a default judgment in favor of the plaintiff A. E. Boyce against the Goldfield Third Chance Mining Company, defendant. Motion denied. Interveners appeal from the judgment and order. The facts sufficiently appear in the opinion.

Averill, Judge. Action by the Montgomery Shoshone Mines Company, a corporation, against the Las Vegas and Tonopah Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion. The railroad company is governed and controlled absolutely, under the provisions of its published tariff, in fixing the freight rate, by the certificate of valuation furnished to it by the smelter company.

Original application of Trifke Melosevich for a writ of habeas corpus. The facts sufficiently appear in the opinion. Upon the legislature alone is conferred the power to fix the minimum and maximum for the punishment of all crimes. (People v. Whitney, 105 Mich. 622; People v. Smith, 94 Mich. 644.) Indeterminate sentence provides extreme penalty and provides mitigation, and any attempted sentence short of this is a nullity.

Orr, Judge. Action by William S. Proskey against the Colonial Hotel Company, a corporation, to recover damages for rental paid, upon the ground of a total failure of consideration. Demurrer to complaint sustained as not stating a cause of action. From a judgment for defendant for costs, plaintiff appeals. The facts sufficiently appear in the opinion.

J. L. Taber, Judge. Action by W. D. Worrell against A. W; Jurden. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Original proceeding in habeas corpus. Alexander Dickson was permitted to plead guilty to petit larceny under an indictment for grand larceny. Judgment was entered accordingly, and he brings habeas corpus to be relieved from imprisonment upon the judgment. The facts sufficiently appear in the opinion.

Averill, Judge. Action by Peter Jaksich against John Guisti for damages for malicious prosecution of attachment. Judgment for plaintiff for damages for unlawful attachment, and defendant appeals. Statement of Facts This is an appeal from the judgment on the judgment roll alone.

• Original proceeding by Alex. McVeigh Miller to have settled a statement on appeal in the case of Alex. McVeigh Miller v. Mittie Point Miller, by inserting therein certain matters stricken .therefrom by Hon. E. J. L. Taber, the trial judge, and by striking therefrom certain matters required by said respondent judge to be inserted therein. The facts sufficiently appear in the opinion.

Somers, Judge. Action by C. W. Long and H. F. Bartine against Thomas Tighe, Harry Wheeler, and William Jacobs. From a judgment and order sustaining a motion for nonsuit, plaintiffs appeal. The facts sufficiently appear in the opinion. The certificate, under seal of the notary of California, to the affidavit of service of summons was sufficient to admit the summons in evidence, as due service upon Brunswick. (Comp.

Orr, Judge. Action by R. M. Fleming against Mary C. Fleming. From an order denying an order for publication of summons, based on affidavit, plaintiff appeals. The facts sufficiently appear in the opinion.

<p>1. Criminal Law — Evidence—“Voluntary Confession.”</p> <p>Where the defendant with two others was indicted for arson, and the complaining witness and the sheriff advised him to protect himself, that it would be better for him if he told the truth, the theory of the prosecution being that his codefendants were the principals who had instigated him to burn the prosecuting witness’s store, and the prosecuting witness told him that he only wanted the principals, and others told him that his statements to a detective while in jail were sufficient to send him to prison, a confession elicited under such circumstances is not voluntary; for to be voluntary a confession must be made without hope or inducement of reward.</p>

<p>1. Appeai and Error — -Affirmance—Want of Prosecution.</p> <p>Judgment was entered July 16, 1910, and notice of appeai was filed and served July 20, and statement on appeal was filed August 6, 1910. The record on appeal was filed January 2, 1911. After being passed for several terms, the case was set for hearing for January 30, 1913, and when called appellant’s counsel asked for further time to file a brief, without offering any excuse for not filing it before. The case was continued to March 25, with fifteen days to file a brief. On that day the argument was further continued to June 25, for illness of counsel, with sixty days to file a brief, and on June 25 a further extension of thirty days to file brief was given. No brief was ever filed. Held, that a motion to affirm for want of prosecution should be granted.</p>

Averill, Judge. Action for damages for personal injuries by George Jones against West End Consolidated Mining Company. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Orr, Judge, presiding. Action by W. H. Goodin against W. C. Pitt. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Originad proceeding in habeas corpus by Oliver Boyd for discharge from civil arrest. The facts sufficiently appear in the opinion.

<p>1. PIabeas Corpus — Scope oe Remedy — Custody oe Children.</p> <p>A writ of habeas corpus for the custody of a minor child held by persons other than his parents will not be denied because it is not held by actual force but remains with the respondents because of natural inclination.</p> <p>2. Habeas Corpus — Custody oe Minors — Contracts.</p> <p>An oral agreement whereby the father of a minor child surrendered its custody to a third person is not void as against public policy, but will be enforced for the benefit of the minor.</p> <p>3. Habeas Corpus — Custody oe Ineant — Contracts.</p> <p>An oral agreement entered into by the father of a minor in California, giving its custody to a third person, is valid and binding on the mother, where the parents had separated by agreement; the custody of the minor having been given to the father.</p> <p>4. PIabeas Corpus — Custody oe Child — Evidence—Sueeiciency.</p> <p>In habeas corpus for the custody of a minor child held under an agreement by respondents, who were not his parents, with his father, evidence held to show that it is for the benefit of the minor to enforce the agreement.</p>

Moran, Judge. Action by William Konig against the Nevada-California-Oregon Railway. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Heard on motion to dismiss the appeal and on the merits. Motion denied, and judgment and order reversed, and new trial granted, unless plaintiff consents to a modification of the judgment. The facts sufficiently appear in the opinion.

H. A. Pike, Judge. Action by Mamie A. Forrester, administratrix of Dick Forrester, deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.

Original proceeding in mandamus by the Nevada Tax Commission against the Board of County Commissioners, and as the ex officio Board of Equalization, the Clerk of said Boards and the ex officio Tax Receiver, of Douglas County. The facts sufficiently appear in the opinion.

Somers, Judge. Petition by John L. Roberts for writ of mandamus against W. A. Ingalls, Sheriff. From a judgment sustaining a demurrer to the petition, plaintiff appeals. The facts sufficiently appear in the opinion.

Original proceeding in mandamus by C. 0. Davies to compel the City Council of the City of Reno to submit a proposed ordinance to the electorate of the city under the initiative and referendum provisions of the city charter. The facts sufficiently appear in the opinion.

Original proceeding. Action by J. L. Radovich . against Western Union Telegraph Company. To review an order of L. N. French, District Judge, presiding in the Second Judicial District, striking from the files his cost bill, the plaintiff brings certiorari. Order annulled, subject to further consideration upon other questions. The facts sufficiently appear in the opinion.

Original proceeding. Application by Elizabeth Floyd and James Guthrie for a writ of mandate against the Sixth Judicial District Court in and for Humboldt County, and Honorable L. N. French, Judge of the Eighth Judicial District Court, presiding. Petition for rehearing. The facts sufficiently appear in the opinion.

Original proceeding in mandamus by H. R. Mighels, as Secretary of the Nevada Industrial and Publicity Commission, to compel the State Controller to draw his warrant in favor of the petitioner for the amount of his salary as such secretary. The facts sufficiently appear in the opinion.

Original proceeding in mandamus by J. F. Abel, Deputy State Superintendent of Public Instruction, to compel the State Controller to draw his warrant for a certain claim for expenses incurred while absent from his home in the discharge of his duties: The facts sufficiently appear in the opinion.

Original proceeding for- writ .-of mandate by -the State of Nevada, on the relation of G. H. Beebe, against William McMillan, as Treasurer of the. State of Nevada. The facts sufficiently appear in the opinion.

J. L. Taber, Judge. Action by the Potosí Zinc Company (a corporation) and others against J. J. Mahoney and P. H. Mahoney. From a judgment for the defendants, the plaintiffs appeal. The facts sufficiently appear in the opinion.

<p>1. Criminal Law — Continuance—Right to Continuance.</p> <p>To entitle an accused to a continuance on the ground of the absence of witnesses, it must appear that the witnesses are really material, that the accused has been guilty of no negligence, and that the attendance of the witnesses can be had at the time to which the trial is deferred.</p> <p>2. Criminal Law — Appeal—Discretion of Trial Court.</p> <p>The question of continuance in ■ criminal cases is always a matter within the sound discretion of the trial court, and, unless that tribunal abuses its power, its determination cannot be reviewed on appeal.</p> <p>3. Criminal Law — Continuance—Absent Witnesses — Due Dili-</p> <p>gence.</p> <p>An affidavit for a continuance on the ground of the absence of material witnesses, which alleged that subpenas had been placed in the hands of the sheriff, shows the very slightest diligence.</p> <p>4. Criminal Law — Continuance—Absence of Witnesses.</p> <p>Where an affidavit for continuance on the ground of the absence of witnesses showed that there was another witness by whom the same facts could be proven, it was not an abuse of discretion on the part of the trial court to refuse the continuance.</p> <p>5. Criminal Law — Continuance—Absence of Witnesses.</p> <p>Where an affidavit for a continuance on the ground of the absence of material witnesses showed that the witnesses were out of the jurisdiction of the court, and failed to give any reasonable ground for the belief that their attendance could be procured at some subsequent term, the refusal of a continuance was not an abuse of discretion, particularly where the testimony at the trial showed that the names of the witnesses were not correctly stated in the affidavit, and that the facts could be proven by another disinterested witness.</p> <p>6. Criminal Law — Appeal—Harmless Error.</p> <p>In a criminal prosecution, the improper admission of evidence of the description of the criminal, given to the arresting officer by a third person, was harmless, where it appeared that the officer received and acted on the description given directly to him by the prosecutrix.</p> <p>7. Criminal Law — Defenses—Insanity.</p> <p>Notwithstanding Rev. Laws. see. 7163, providing that a defendant in a criminal action is presumed to be innocent until the contrary be proven, and in case of reasonable doubt as to his guilt he is entitled to be acquitted, an accused person, relying on the defense of insanity, has the burden of proof, and must satisfy the jury by a preponderance of the evidence that he is insane, there being a presumption of sanity.</p> <p>8. Rape — Prosecution—Evidence—Admissibility.</p> <p>In a prosecution for assault with intent to rape, evidence held sufficient to show that accused was the guilty person.</p>

B. McComb against the Fourth Judicial District Court of the State of Nevada in and for the county of Elko and Hon. E. J. L. Taber, Judge. The facts sufficiently appear in the opinion.

Orr, Judge. Action by Ralph W. Shearer against the City of Reno. Judgment for plaintiff, and defendant City of Reno appeals. The facts sufficiently appear in the opinion.

<p>1. Waters and Water Courses — Mining Locations —■ Appropriations.</p> <p>The location of a mining claim on land in which a spring arose will give the locator no claim to the water flowing from the spring in a natural channel, as against an appropriator; for a title to such flow can only be acquired by appropriation and application to a beneficial use.</p> <p>2. Waters and Water Courses — Springs—Appropriations.</p> <p>Where the waters of a spring flow in a natural water course, they are the subject of a beneficial appropriation.</p> <p>3. Waters and Water Courses — Change in Use oe Water by Appropriation.</p> <p>One having no right to the waters of a spring which flow in a natural water course cannot object that a prior appropriator has changed his use of the stream.</p>

. Appeal from the First Judicial District Court, Douglas County; Frank P. Langan, Judge. Action by S. C. Anderson against Louis Berrum. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

H. A. Pike, Judge, presiding. Bernard Clark was convicted of murder in the second degree, and he appeals. The facts sufficiently appear in the opinion. The court committed reversible error in proceeding with the trial during appellant’s absence. (Cutting’s Comp. Laws, 4221; Humphreys.

Original proceeding. F. H. Kuhns applies for writ of habeas corpus for discharge from arrest upon an executive warrant issued upon extradition papers from the State of Pennsylvania in which… Held: that petitioner was not in the demanding state when the offense was alleged to have been committed and was not a fugitive from justice. The facts sufficiently appear in the opinion.

<p>Appeal from the First Judicial District Court, Ormsby County; Frank P. Langan, Judge.</p> <p>Action by Gertrude Eleanor Tiedemann against Rudolph Ernest Tiedemann for a divorce. From a judgment of dismissal for want of jurisdiction based on the allegations in the complaint, plaintiff appeals.</p> <p>The facts sufficiently appear in the opinion.</p>

F. Moran, Judge. Charles Patchen -and James Burke were convicted of the crime of burglary, and they appeal. The facts sufficiently appear in the opinion.

P. Langan, Judge. Proceeding upon petition by Esmeralda County to the First Judicial District Court, in and for Ormsby County, in the matter of the State Bank and Trust Company in involuntary liquidation, for a decree declaring a deposit of certain county funds a special deposit and a preferred claim, and directing the receiver, F. L. Wildes, to pay the same. From a decree in favor of Esmeralda County, petitioner, F. L. Wildes, receiver, appeals.

<p>ON REHEARING</p> <p>1. Public Lands — Patents • — • Conclusiveness on Collateral Attack.</p> <p>A patent to land issued by the general land office is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles until set aside or annulled. It is not open to collateral attack except upon a showing that the land department had no jurisdiction to dispose of the land.</p> <p>2. Public Lands — Decisions of Federal Land Office Conclusive.</p> <p>The decisions of the federal land office upon matters of fact, cognizable by it, in the absence óf fraud or imposition, is conclusive everywhere else.</p> <p>3. Mines and Mining — Patents—Collateral Attack.</p> <p>A mining patent is conclusive upon all matters which might have been the subject of an adverse claim.</p> <p>4. Mines and Mining — Patents—Adverse—Waiver.</p> <p>Failure to file an adverse claim within the time fixed by law operates as a waiver of all rights which were the proper subject of such a claim.</p> <p>5. Mines and Mining — Patents, Facts Concluded By.</p> <p>Upon the issuance of a patent to a mining claim, all matters which might have been tried under adverse proceedings are treated as adjudicated in favor of the patentee as fully as though judgment had been regularly rendered in his favor.</p> <p>6. Mines and Mining — Patents—Failure to Adverse Conflicts.</p> <p>Where there is any surface conflict whatever, and there is a failure to adverse, after t,he patent has been issued to the applicant, the question of priority of title is. conclusively determined in favor of the patentee.</p> <p>7. Mines and Mining Patents — -Federal Land Office — -Protests—• Estoppel.</p> <p>Notwithstanding a failure to assert adverse rights, an adverse claimant will not be estopped from making a protest in the federal land office, bringing to the notice of the department any facts which tend' to show noncompliance with the requirements of law.</p> <p>8. Mines and Mining — Patent Conclusive as to Location.</p> <p>An entry, sustained by a patent, is conclusive evidence that at the time of the entry there had been a valid location.</p> <p>9. Mines and Mining — Conflicting Locations — Patent Proceedings — Priority—Necessity of Adverse.</p> <p>When an owner of a lode claim makes application for a patent and the owner of the claim in conflict seeks to challenge the former’s priority of right on-account of the date of discovery, he must bring an adverse suit, or the question, after patent, will be as to him concluded.</p> <p>10. Mines and Mining — Group Patent — Evidence of Adjudication of Validity of Locations.</p> <p>When the general land office issued a group patent comprising five mining locations, and it appeared from the face of the patent that one of these claims, the Los Gazabo, was in conflict with each of.the other claims known as the Sunnyside No's. 1, 2, and 3, and the Sunnyside Fraction, the land office having full knowledge of the situation of these claims when it issued a patent to the group, including the Los Gazabo, the effect of the issuance of such patent was an adjudication of-the validity of the-location of the Los Gazabo.</p> <p>11. Mines and Mining — Group Patent — Evidence of Adjudication of Validity of Locations.</p> <p>Where the general land office issued a patent to a group of mining claims, one of which was entirely within the exterior boundaries of the other claims, except for a very small portion, about five one-hundredths of an acre in one corner, the fact that there is such portion outside the exterior boundaries of the other claims is evidentiary that the land office adjudicated such location to be valid, for otherwise this small portion of land included within the patent could 'find no support in the law.</p> <p>12. Mines and Mining — Group Patent — Construction—Conflicts.</p> <p>Where a patent to a group of conflicting mining claims upon its face contains no express exclusions and where the total area granted by the patent accounts for the area in conflict but once, it is manifest that there is not a double grant of the conflict area, but such patent does not disclose upon its face which of the claims takes such conflict area.</p> <p>13. Mines and Mining — -Group Patent — Construction Conflicts— Presumption from Position of Discovery Point.</p> <p>Where a group patent to several claims in conflict discloses that the location point of one of the claims is within the conflict area, it will be conclusively presumed from the patent that the claim having its location point in conflict with another claim takes the conflict area as between two such claims.</p> <p>14. Mines and Mining — Point of Discovery.</p> <p>The discovery point of a mining claim must be upon free territory.</p> <p>15. Public Lands — Rules of Land Office, Force Of.</p> <p>The rules and regulations of the general land office, in so far as they are not .in conflict with statutory provisions, have the force and effect of law.</p> <p>16. Mines and Mining — Rules of Land Office — Field Notes of Deputy Mineral Surveyor.</p> <p>Under section 38 of the regulations of the general land office providing that “The field notes and plat are made a. part of the application for patent,” and section 130 of the same regulations providing that “The survey of a mining claim may consist of several contiguous locations, but such survey must * * * distinguish the several locations, and exhibit the boundaries of each,” and section 153 of the same regulations providing that “When locations embraced in one survey conflict with each other, such conflicts should only be stated in connection with the location from which the conflict area is excluded,” it is the duty of the deputy mineral surveyor to set forth in his field notes the exclusions of the conflict area, and in favor of the claim or claims such exclusions are made.</p> <p>17. Mines and Mining — Application for Patent — Field Notes— Presumption.</p> <p>Where the record does not contain the application for the Xiatent nor a copy of the published notice, it will not be presumed, in the absence of a showing to the contrary, that such application or published notice is in conflict with the exclusions made in the field notes of the deputy mineral surveyor.</p> <p>18. Mines and Mining — Application for Patent — Field Notes— Duty of Deputy Mineral Surveyor — Exclusions, Effect Of.</p> <p>The fact that field notes of a group patent contain exclusions of the conflict area between the respective claims, which exclusions are made at the suggestion of the applicant for patent, cannot properly be said to be the self-serving declarations of the applicant, for, no matter at whose suggestion made, when the exclusions are embodied in the field notes of the deputy mineral surveyor and are approved by the surveyor-general, they become the exclusions made by the officers of the government upon whom the duty is imposed to make the same.</p> <p>19. Mines and Mining — Group Patent^-Field Notes — Exclusions Conclusive.</p> <p>When a patent issues to a group of mining claims and therein refers to the field notes, the exclusions contained in such field notes become the exclusions of the government itself.</p> <p>20. Mines and Mining — Patents—Surveys—Presumption.</p> <p>It will be assumed that patents to mining claims are issued upon surveys made under the direction of the United States surveyor-general.</p> <p>21. Public Lands — Patents — Field Notes and Plat Part of Description.</p> <p>A reference in a patent to the official plat and survey makes such plat and field notes of such survey a part of the description of the land granted, as fully as if they were incorporated at length in the patent.</p> <p>22. Mines and Mining — Group Patent — Field Notes Determinative of Conflicts.</p> <p>When construing a patent to a group of mining claims for the purpose of determining which claim, or claims, takes the conflict area, reference may be made to the field notes of the deputy mineral surveyor referred to in the patent.</p> <p>23. Mines and Mining — Locations on Free Ground.</p> <p>A valid location of a mining claim cannot be made upon ground covered by a prior existing location or locations.</p> <p>24. Mines and Mining — Discovert Essential to Location.</p> <p>The basis of a valid mining location is discovery, and the mere posting of a notice without discovery is of no force or effect so far as rendering invalid another subsequent location covering a portion of the same ground and based upon a valid discovery.</p> <p>25. Mines and Mining — Certificate of Location — Effect.</p> <p>A certificate of location of a mining claim duly recorded is prima facie evidence only of such facts as are required by law to be stated therein, provided they are sufficiently stated.</p> <p>26. Mines and Mining — Certificate of Location Not Evidence of Discovery.</p> <p>A certificate of location is not evidence of the fact of a discovery, and such certificate setting forth the date of location is not evidence of a discovery either upon that or any other date.</p> <p>27. Mines and Mining — Patent Conclusive of Prior Discovery.</p> <p>As the validity of a mining location granted by a patent from the general land office depends upon priority of discovery, and as it is incumbent upon such land office to determine all facts necessary to support the validity of the location patented, it must be conclusively presumed that such question was determined in favor of the patented location.</p> <p>28. Mines and Mining — Patent to Noncontiguous Pieces of Ground.</p> <p>The federal land office may make a valid grant of a mining claim in two noncontiguous pieces of ground, separated by a prior location.</p> <p>29. Appeal and Error — Conflict of Evidence — Adverse Proceedings.</p> <p>Findings of the trial court based upon conflicting testimony are conclusive upon this court upon appeal. The decision of the district court in adverse proceedings based upon conflicting evidence is binding upon the supreme court and the federal land office.</p> <p>30. Mines and Mining — Patent Proceedings — Failure to Adverse or Protest — Estoppel.</p> <p>An owner of a conflicting mining claim, who fails to institute adverse proceedings when another party has applied for patent for the conflicting area, or to protest in the land office against the granting of such patent, cannot be heard to contest questions of fact upon which the patent is based.</p> <p>31. Public Lands — Patents—Presumption.</p> <p>Courts are bound to presume, in the absence of a showing to the contrary, that a patent has been issued upon due and regular application.</p> <p>32. Mines and Mining — Group Patent, Effect Of.</p> <p>A patent to a group of mining claims does not simply describe the exterior boundaries of the land which is embraced by the group, but each location is described and each embraces a separate portion of ground, to the exclusion of every other claim the same as if a separate patent issued for each particular location, and all conflicts are determined by the patent.</p> <p>33. Estoppel — Pleadings'—Action Between Third Parties.</p> <p>A party to an action is not in position to assert an estoppel against the other party by reason of' allegations in pleadings in a former action in which neither the party asserting the estoppel nor his grantors nor predecessors in interest were parties. An estoppel should be pleaded. '</p> <p>34. Fraud — Pleading—Mining Patent.</p> <p>Fraud must be alleged and proved. Held, that no element of fraud is involved in this case.</p>

N. French, Judge, presiding. Action by H. D. Heywood against Nye County. From a judgment for the plaintiff, Nye County appealed. The facts sufficiently appear in the opinion.

F. Moran, Judge. Action by F. R. Byran against the City of Sparks, to recover amount of license paid under protest. From a judgment for plaintiff, the City of Sparks appeals. The facts sufficiently appear in the opinion. '

Original proceeding in certiorari. J. Andrew Gnttery instituted proceeding in certiorari to review a judgment of the District' Court of the First Judicial District, in and for Lyon County, on appeal from a justice’s court and to have the same annulled, as in excess of jurisdiction. The facts sufficiently appear in the opinion.

<p>1. Summons — Affidavit fob Publication, Sufficiency Of.</p> <p>An affidavit stating, “That said W. M. Stokes, Trustee,, is a necessary party defendant in this cause of action and that a cause of action exists against him, the said W. M. Stokes, Trustee, by the plaintiff, and the cause of action is that plaintiff is a lien claimant and assignee of other lien claimants against the property of the Nevada Reduction Company, a corporation, and that the defendant, W. M. Stokes, Trustee, claims to have some right, title or interest in said property and this suit is brought to have whatever interest, if any, the said Stokes may have in and to the property of the Nevada Reduction Company to be declared subject to the claims of plaintiff,” states facts sufficient to show that said Stokes is a necessary or proper party to the action, and is sufficient to support an order for publication under the provisions of Rev. Laws, sec. 5026, • ■</p> <p>2. Summons, Affidavit fob Publication of — Conclusions of Law.</p> <p>An affidavit for publication of a summons does not require the same detailed statement of a cause of action as is required in a complaint. Statements well-nigh being conclusions of law may, in sofne instances, suffice for the affidavit.</p> <p>3. Summons, Affidavit fob Publication Of.</p> <p>The provisions of Rev. Laws, sec. 5026, are in the alternative and it is sufficient either that the affidavit for publication of summons shows the existence of a cause of action or shows that the defendant is a necessary or proper party.</p>

Orr, Judge. Action by Amanda Esden against James May, and others. From an order setting aside a default judgment, plaintiff appeals. Petition for a rehearing pending. The facts sufficiently appear in the opinion.

Action by H. B. Lind and George L. Kaeding against W. H. Webber, John T. Hodson, James R. Davis, and Nevada Hills Mining Company (a corporation). Judgment for defendants; from the judgment and from an order dismissing plaintiffs’ motion to retax costs, plaintiffs appeal. Petition for a rehearing pending. The facts sufficiently appear in the opinion.