Opinion of Beatty, J., on response to petition. possession was good for the other owners-unless adverse to them, of which there is no pretense-and would inure to their benefit. As long as Winters and associates so remained in possession there could be no ground for a plea of the statute by the defendants against their co-tenants." *From this language one would suppose that Win- [*183] ters and other plaintiff's had always been in possession of eight hundred and seventy-five feet of the ground sued for. But the plaintiffs' complaint only avers that they were in possession in June, 1859, and remained in possession until ousted by plaintiff on the 1863. The amended complaint was filed in May, 1865. day of Now, if the ouster took place in the early part of May, 1863, or prior to that time, then Winters and his co-plaintiff's had not been in possession of the eight hundred and seventyfive feet for more than two years, and there was no reason why the statute should not have run against the seven hundred and twenty-five feet. Taking the original complaint as literally true, it does not negative the idea that the ouster was prior to May, 1863. But it is not unusual for lawyers to allege the ouster to have taken place just before the suit is brought, although, in fact, it may have been several years previous. Whilst we have nothing positive in the record showing when the ouster did take place, if indeed there ever was an ouster, the facts that much work had been done and valuable improvements put on defendants' claim would indicate that the ouster, if any, took place several years prior to November, 1863, when the original suit was brought. Certainly, the finding of the jury did not prove that Winters and his co-plaintiffs were in possession of eight hundred and seventy-five feet when they brought their action. If they were, we do not comprehend why they brought suit. The next point which the petitioners seek to have reviewed is our decision as to the hoisting works. Petitioners urge that the hoisting works were between the walls of the vein, and attempt to show it in this way: They say the shaft con Opinion of Beatty, J., on response to petition. nected with the hoisting works is entirely in vein matter from the top down, as shown by Mason, a witness for the defendants, and then put their argument in this form: "Every vein must necessarily have, and has, two walls, and all matter embraced within those walls and denominated 'vein matter,' is a part of the vein. The hoisting house and machinery was upon, and the entire shaft in, vein matter. Therefore, they were between the walls of the vein or ledge." [*184] *By the same process of reasoning, it may be proved that a man is a horse. Every man is an animal, and every horse is an animal: therefore, every man is a horse. Admitting that every vein has outside walls, and all matter between those walls is vein matter, it certainly does not prove that all vein matter is contained between two walls. Vein matter may certainly be removed from between its original walls either by artificial or natural means, and after such removal it does not cease to be vein matter. When we say that certain substances are vein matter, we may mean that those substances are now a component part of some mineral vein, or that at some past time they did constitute a part of the substance of some vein. It is well known that what miners call vein matter frequently rolls down a mountain side to a great distance from its original location in the vein. By the action of water it is carried to still greater distances. The hoisting works in this case were on the side of a mountain. They may have been on vein matter which had rolled down the mountain for an indefinite distance. There is certainly no satisfactory evidence to show those works were within the walls of the ledge sued for, and, therefore, the sheriff, under a judgment for a quartz ledge, had no right to interfere with those works. The fact that the original complaint sues for the ledge and two hundred feet on each side of it can make no difference. The case was not tried on that complaint; therefore, the first complaint has nothing to do with the question. This court only decided the sheriff had no right, under that Opinion of Beatty, J., on response to petition. particular judgment, to interfere with defendants' hoisting works. It did not decide what would be the effect of a judgment for the lode and two hundred feet on each side thereof. That is a question not now before us. Petitioners again go into a long argument to show that the use to which a thing is put may determine whether it is or not a fixture. Admitting the proposition to be true, we do not see its applicability to this case. A large building erected on the soil with steam engine, etc., for hoisting ores we fully admit to be a fixture. But a fixture to what? To the soil on which it stands? The difficulty with plaintiffs here is, not that they failed to show that such a building was a fixture (we are not aware that any one disputes that), but they failed to show any right of possession to the soil on which the building *stands. If plaintiffs were entitled to the soil on [*185] which this building stands, they would have been entitled to the building if it had been erected to grind corn. If they were not entitled to recover the soil, they could not recover the house standing thereon, although it was erected for the purpose (unlawful, perhaps, if you will) of taking ore from plaintiffs' mine. The purpose for which a house is erected cannot change its locality. Nor can we see how that purpose is to affect, in any way, the rights of plaintiffs to recover the ground on which it stands. The petition for rehearing is denied. BROSNAN, J., did not participate in this decision. Opinion of the Court-Beatty, J. C. GOTTSCHALL ET AL., APPELLANTS, v. G. MELSING ET AL., RESPONDENTS. [2 NEVADA, 185.] MINING CLAIMS-RIGHTS OF MINERS.—A miner appropriating a piece of the public domain for mining purposes has a right to the exclusive possession of the ground so taken up. IDEM.-A miner cannot by mere notice take up a piece of mining ground and hold it for five years without work or occupation; especially, when there is not even an intention to work it, except on the happening of a very uncertain event. STATUTE OF LIMITATIONS.-Under some circumstances lapse of time is a good defense, although the statute of limitations is not specially pleaded. APPEAL from the District Court of the First Judicial District, Hon. R. S. MESICK presiding. Pitzer & Keyser, for Appellants. Hillyer & Whitman, for Respondents. [*186] *By the Court, BEATTY, J.: This was an action in the nature of an action of ejectment, brought by the plaintiff in the month of October, 1865, to recover possession of a considerable tract of land in the center of the town of Gold Hill. The property sued for contains a large number of houses, mills, etc., of great value in that town. The plaintiffs, to sustain their cause, proved that they and their grantors (two of the present plaintiffs being original locators and a third a grantee of one of the original locators) located a mining claim in 1859. That claim as located was 900 by 400 feet, and included the property in controversy. The location was made by putting up a notice of the claim, and sticking up a post at each corner of the parallelogram. Subsequently, it was ascertained this location inter[*187] fered with a mining *location of older date. The boundaries were then so contracted as to leave out the portion interfering with the older location. The plaintiffs then went to work and prospected the claim, working on it at intervals from September, '59, to December, '60, both inclusive. Opinion of the Court-Beatty, J. The result of this prospecting was to show the ground moderately rich in gold, so rich that it would have been a valuable mining location if water had been obtainable. But in the absence of water, which the country does not afford in its present state, the ground was worthless for mining purposes. The claim, therefore, was not worked, and the parties ceased to occupy or use it in any way, but avowed their intention of holding on to it, to be worked at a future day in the event water was brought by artificial means to the district, and to be had in sufficient quantities for mining purposes. At the time this location was made, there were one or two cabins on it occupied by others than the locators. Since its location, there has never been water enough to work the claim except at one time, which was during the winter of 1861, which was a remarkably wet winter. Then, as the water only lasted a short time, it was not available for mining purposes. Since the location of this piece of ground for mining purposes the main street of Gold Hill has been run through it, and it is compactly built up with houses for its whole length. Whilst this ground was being built up, the plaintiffs occasionally gave notice to those who were improving that they claimed it for mining ground, and expected to occupy it and mine it, if ever water was brought in. Upon the plaintiffs resting, the defendants asked for a nonsuit. The court granted it, and plaintiffs appeal. Whilst we cannot fully concur with the judge who wrote an opinion sustaining the nonsuit in all the views which he expresses, we are perfectly satisfied with the result at which he arrived. We are satisfied the nonsuit should have been granted. The judge who tried the cause in the court below seems to think the plaintiffs showed a good and subsisting right to mine the ground in controversy in case water should at any future time be brought into the district. But he holds that the right to mine in the ground and extract the precious metals therefrom gives only a qualified right of possession *to the miner; that others have [*188] a right to occupy ground which has been appro priated for mining purposes, so long as such occupation NEV. DEC.-45 |