Thompson v. Spray

Hayne, C. The action is in relation to a placer mining claim in Amador County, and was brought by Alexander Thompson, Sen., and his five children mentioned below. At the trial a notice of location was introduced, in evidence, dated January 20,1882, and signed with the-names Alexander Thompson, James Thompson, Alexander Thompson, Jr., and Matilda Thompson. The-plaintiffs then offered what they styled an “ amended notice, which bore the same date, and contained a fuller-description of the property, and was signed with the-names Alexander Thompson, Matilda Thompson, Margaret Thompson, and Bedelía Thompson. It will be-observed that the second notice omits two of the names on the first, and inserts two new names in their place., .The defendant objected to the introduction of the second, notice, on the ground that it was not an “amended”' notice, inasmuch as the names were not the same, andithat no abandonment of the first notice had been shown.. The court sustained the objection and excluded the evidence.

We think this was error. There does not appear to be-any statute of this state providing for amending notices of location, as is the case in Colorado. But we see no reason why, if locators have any apprehension as to the sufficiency of their notice, they may not put up another one. Whether the second notice is to be treated as an original notice, or whether it relates back to the posting of the first one, is a question as to its effect which it is [530]not material, to consider. In the present case the rights of James Thompson and Alexander Thompson, Jr., whose names were on the first notice, but not on the second, could not be-affected by the posting of the second notice. (Morton v. Solambo etc. Co., 26 Cal. 527; Gore v. McBrayer, 18 Cal. 588.) Margaret and Bedelía Thompson had nothing to do with the first notice.' Their rights rested on the second, -which, as to them, was an original notice; and they were certainly entitled to have it introduced in evidence. With respect to the two who were on both notices, we think that they also were entitled to have the second introduced in evidence. The second would not operate as an abandonment of the first. (Weill v. Lucerne Mfg. Co., 11 Nev. 212, 213.) But it was not necessary to show such abandonment to render the second notice admissible. The question as to the rights of the plaintiffs as between themselves does not arise in this action.

Upon, the close of the plain tiffs' evidence several motions for nonsuit were made and granted. The first motion was as to Margaret and Bedelía Thompson. Their notice of location having been excluded, the motion was granted; but as above shown, the exclusion of the notice was erroneous.