Bulwer Consolidated Mining Co. v. Standard Consolidated Mining Co.

Vanclief, C. — There are two appeals in this case; one from the final judgment, and the other from an [614]order denying defendant’s motion to change the place of trial, presented upon bills of exception.

The action is brought under section 738 of the Code of Civil Procedure, for the purpose of determining the adverse title alleged to be claimed by the defendant to the mineral land, veins, lodes, and ledges described in the complaint, 'of which the plaintiff claims to be the owner.

The parties to the action, and to this appeal, are the same as the parties to the appeal numbered 13192, this day decided.

The original complaint, filed March 17,1888, is in the usual form of complaints in this class of actions, and in the same form as that in No. 13192, but describes a different lot of mineral land, designated as mineral entry No. 49 in the Bodie laud-office, and called the Ralston No. 2 lode.

To this complaint the defendant filed an answer and a cross-complaint, which are identical in form and substance with the answer and cross-complaint in No. 13192; and claiming the same land, viz., the West Bullion lode and the west vein of the West Bullion lode location, and alleging that it adjoins the Ralston No. 2 lode.

The answer of the plaintiff to this cross-complaint is the same in form and substance as its answer to the cross-complaint in No. 13192, except that it claims the Ralston No. 2, instead of Ralston No. 1.

On June 17, 1888, by leave of the court, the plaintiff filed an amended complaint. The amendments consist of the additions to the Ralston No. 2 lode, of two other claims, called the Homestake lode claim and the Stonewall lode, which are alleged to adjoin the Ralston No. 2, so that the three pieces of land described in the amended complaint form one consolidated piece of land, constituting a portion of plaintiff’s entire mining claim and property, known as and called the Bulwer mine.

The amendment of the complaint was opposed by the [615]defendant, and it is urged here that the court erred in allowing it. The amendment did not change the nature of the action, nor state an entirely new cause of action; although it enlarged or added to the land described in the original complaint. But whether or not the allowance of such an amendment was within the discretionary power of the court need not be decided, since it appears that the defendant was not injured thereby, having, in its answer, disclaimed any estate or interest in any fart of the land described in the amended complaint, and the judgment for plaintiff being without costs, as it must have been, without the amendments.