Variance-Consolidated claims one mine. Where the complaint filed to enforce such assessment enlarged the description so that it read, "those certain mining claims situate on Last Chance Hill in said county, known as the Real del Monte, Aurora, Last Chance, ** containing in all 4,400 feet, more or less, and being the same property described in the assessment," there is no variance between the two descriptions. Where many claims are consolidated in the hands of one company there is no impropriety in calling it one mining claim.

Appeal from the District Court of Esmeralda County, Ninth Judicial District.

The facts appear in the opinion.

QUINT & HARDY, for appellant.

WILLIAM H. BORING, for respondent.

By the Court, BEATTY, J.

This was an action brought against the defendant, a mining corporation, to recover the sum of five hundred dollars, claimed to be due for taxes on a mine. The court below gave judgment for the plaintiff, and the defendant appeals. Two points are raised by the appellant. First. That the language used by the assessor in assessing the property, indicates that the ultimate right to the property described was assessed, and not the mere possessory claim of the appellant. We think differently. The language used by the assessor, in describing the property assessed, is as follows: "One mine of four thousand four hundred feet, situated on Last Chance Hill." This language, in many parts of the world where the English language is spoken, would appear very indefinite, and convey no fixed idea to the generality of English scholars. The question might be asked: Does it mean a body of mineral containing four thousand four hundred cubic feet-a surface of four thousand four hundred square feet-extending to the center of the earth, or a surface of four thousand four hundred feet square extending to the center of the earth? Or it might be supposed to mean a half dozen other things. Without a knowledge of the mining laws and customs of this and some of the neighboring States, the description would be perfectly unintelligible. But when we know it is a common and almost universal cus

tom for prospectors in this State to take up claims for mining purposes on the public domain, describing them as so many feet of a certain lode, lead, ledge, or mineral vein, with all its dips, spurs and angles, but giving no lateral boundaries to the claim, and on the other hand, that wherever grants of the public domain are made by the government, the term land is always used in the grant, and it is described by metes and bounds, we have not the least difficulty in understanding that the language used by the assessor has reference, not to the ultimate right of the appellant to the soil in which the mine is situated, but to the possessory claim, which, in miner's parlance, is called "a mine," "mining right," "mining claim," "mining ground," etc. The only question for determination here is, did the assessor, in fixing the value of this mine, fix it at what, in his opinion, was the value of the full and complete title to the land, or only the value of the possessory title? If the court are satisfied, from the language used, that the latter standard was the one fixed in the mind of the assessor when he made the assessment, however awkward his expression, the assessment must be supposed. If, on the contrary, the assessor fixed the valuation on the fee simple title of the land, it could not stand, because the fee of the land would be worth far more than the mere possessory right. We are satisfied, for the reasons stated in this opinion and those stated by this court in the case of Пale & Norcross G. & S. M. Co. v. Storey County,' that the assessor only meant to assess the pussessory right of appellant in the mine.

The next alleged error is, that the court erred in permitting evidence to be introduced varying and adding to the language used in the assessment-roll. The assessment-roll described the property as a mine "of four thousand four hundred feet situated on Last Chance Hill."

The complaint describes the property as follows: "Also, those certain mining claims situate on Last Chance Hill in said county, and known as the "Real del Monte," "Aurora," "Last Chance," "Yellow Jacket," "Pond," "Sunbeam," "Western Summit," "Crockett," "Chihuahua," and "Midnight," containing in all forty-four hundred feet, more or less, and being the same property as described in the assessmentroll of said county for the year 1864. There is no contradic1 Nev. 104; Post TAX.

tion between these descriptions, there may be many claims in one mine, and where many claims are united or consolidated in the hands of one company there is no impropriety in calling it one mine, or one mining claim. The description in the assessment-roll was general. The law of 1864-5, p. 163, expressly authorizes the district attorney to give, when he brings suit for delinquent taxes, a more particular description of the property on which the taxes remain unpaid than that used in the assessment-roll. This the district attorney in this case has done. He alleges, however, that his description embraces the same property as that described in the assessment. We must presume in favor of the judgment in the court below that he established that fact, until it is shown that the description in the complaint embraced ground not included in the assessment. This is not shown.

The judgment is affirmed.

BRANDOW V. THE POCOTILLO SILVER MINING CO.

(6 Nevada, 169. Supreme Court, 1870.)

The words "Pocotillo Mine," in a mortgage, construed. Where a dispute arose between Brandow and the Pocotillo Silver Mining Company, as to the ownership of eight hundred feet of mining ground, and, on an amicable settlement, a contract was entered into between them in which, after reciting the controversy as to such mining ground "known as the Pocotillo Mine," Brandow agreed to convey to said company all his right, title and interest in said claim or mine," and the company agreed, among other things, to pay Brandow $15,000, and that the contract should "operate as a lien by way of mortgage upon said mine" to secure the same. Held, that the mortgage was restricted to the mining ground in controversy, and could not include the Pocotillo Mine in fact, which embraces much more ground. Description limited to the mine so known at time of contract. The words "Pocotillo Mine" being used in the contract to designate certain mining property therein specifically described, could not be construed to intend any additional part of the larger tract afterward known as the Pocotillo Mine.

Appeal from the District Court of White Pine County Eighth Judicial District.

GARBER & THORNTON, for The Pocotillo Silver Mining Company, the appellant.

ALDRICH & WREN, for respondent.

By the Court, WHITMAN, J.

This action was for the foreclosure of a mortgage upon certain mining property; and the sole question presented for review is as to the extent of ground which should be covered by the decree. The appellant's grantors, upon the twenty-sixth of May, 1868, made a location of mining ground the notice whereof appears in the books of the mining recorder, thus:

"We, the undersigned, claim eight hundred feet (800) on this quartz ledge, together with all dips, spurs and angles, running in a southerly direction from this monument; two hundred feet for discovery and two hundred feet each by location. We also claim one hundred feet on each side of the ledge for mining purposes. This shall be known as the Pocotillo ledge and Belmont company."

On the twenty-eighth of December, of the same year, respondent's grantors made their location, which appears on the records, thus:

"This is to certify that we, the undersigned, do locate and claim the first northern extension of the Pocotillo mine, claiming one thousand feet, with all the privileges of the White Pine district. This claim shall be known as the first northern extension of the Pocotillo mine, district of White Pine, Lander county, State of Nevada."

Subsequently a dispute arose and litigation ensued between the present parties, growing out of the claim of appellant, that there was a mistake in the record of its grantor's notice; and it should have read, running in a northerly direction from the monument, instead of "in a southerly direction," as on the records. This litigation was compromised, and an agreement was executed between the parties, as follows:

"Whereas, the Pocotillo silver mining company, a corporation organized under the laws of the State of California, claims to be owner of certain mining ground situated in the

county of White Pine, State of Nevada, known as the Pocotillo mine; and whereas, Peter Brandow claims to be the owner of the same ground and two hundred feet additional; and whereas, there has been a dispute between the said parties as to the ownership of said ground, each claiming adversely to the other; and whereas, litigation has ensued between the said parties to determine the ownership of said mining claim, which litigation is not yet disposed of. Now, therefore, it is hereby covenanted and agreed by and between the said Pocotillo silver mining company of the one part, and the said Brandow of the other part, as follows: That the said Brandow shall convey to the said Pocotillo silver mining company all his right, title and interest in and to the said claim or mine. That in consideration of such conveyance, the said Pocotillo mining company shall, immediately upon the execution hereof, deliver to the said Brandow five hundred shares of the stock of said company (the whole number of shares being four thousand) properly transferred on the books of the company to him, the said Brandow or his assigns. That the said Pocotillo silver mining company shall deliver to said Brandow the first fifteen thousand dollars, in gold or silver coin, that shall be produced over and above working expenses. from said mine, or the ores thereof now extracted, whether the same shall be reduced by said company or the ores sold at the dump for coin. It is further agreed, that upon the execution and delivery hereof, the said Pocotillo silver mining company shall pay to the said Brandow one thousand dollars. in gold coin.

"And for the faithful performance and fulfillment hereof, these presents shall operate as a lien, by way of mortgage, upon said mine and the ores thereof, and may be enforced in law or equity as such, the said Pocotillo silver mining company hereby granting and conveying said mine to said Brandow as a security for the fulfillment hereof.

"And the said company further covenant and agree, that it will within thirty days commence to extract ores from said mine, and diligently prosecute the workings thereof, and that it will with all reasonable dispatch pay off the said sum of fifteen thousand dollars aforesaid, out of the net proceeds of said mine, as aforesaid.