(39 Nev. 120) TERMINATION BY LAND OFFICE. The determination by the federal Land Department of the character of public lands is conclusive, except in certain direct proceedings to set aside a patent for fraud, imposition, mistake, or the like. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. 88 104, 301, 302; Dec. Dig. 106.] 2. APPEAL AND ERROR 891-MATTERS OUTSIDE OF RECORD. The court on appeal from a judgment based on findings that land is mineral may consider a patent since issued conclusive that the land is not mineral. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3625; Dec. Dig. 891.] Appeal from District Court, Washoe County; Thomas F. Moran, Judge. Suit by William H. Earl and others against William H. Morrison and others. Judgment for plaintiffs, and defendants appeal. Remanded, with directions. Cheney, Downer, Price & Hawkins, of Reno, for appellants. Dixon & Miller, of Reno, for respondents. |fraud, imposition, mistake, and the like. In In Burfenning v. Chicago, St. Paul, etc., Ry., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 175, Mr. Justice Brewer, speaking for the court, used the following language: "It has undoubtedly been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the Land Department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the Land Department, one way or conclusive, and not open to relitigation in the the other, in reference to these questions, is courts, except in those cases of fraud, etc., which permit any determination to be re-examEd. 485]; Smelting Company v. Kemp, 104 U. ined. Johnson v. Towsley, 13 Wall. 72 [20 L. S. 636 [26 L. Ed. 875]; Steel v. Smelting Com COLEMAN, J. This is a suit to determine the right of possession to a certain portion of the public domain of the United States. Plaintiffs base their right of possession upon an alleged location of a placer mining claim; while defendants rely upon rights asserted pursuant to filings under scrip, claiming that the land is nonmineral in character. In the trial court evidence was introduced by the respective parties to sustain their contentions. Judgment was rendered in favor of the plaintiffs, and defendants have appeal-pany, 106 U. S. 447 [1 Sup. Ct. 389, 27 L. ed. The only issue in the case below was as to the character of the land; that is, whether it was mineral or nonmineral. After the case had been docketed in this court on appeal, defendants made a motion for a stay of proceedings pending the determination by the Land Department of the United States of the character of the land in question. The motion was granted. On November 2, 1915, appellants made a motion in open court that the judgment of the lower court be modified, and that judgment be rendered in favor of appellants, for the reason that since the granting of the stay of proceedings appellants had acquired title to the land under a patent issued by the United States government, which was exhibited in Respondents' position is that such a procedure as that sought by appellants is unheard of and revolutionary, contending that the case must be disposed of here upon the record made in the lower court. open court. [1] It is invariably held that the determination by the Land Department of the character of land is conclusive, except in certain direct proceedings to set aside a patent for Ed. 226]; Wright v. Roseberry, 121 U. S. 488 Wallace, 138 U. S. 573 [11 Sup. Ct. 380, 34 [7 Sup. Ct. 985, 30 L. Ed. 1039]; Heath v. L. Ed. 1063]; McCormick v. Hayes, 159 U. S. 332 [16 Sup. Ct. 37, 40 L. Ed. 171].” In Gale v. Best, 78 Cal. 235, 20 Pac. 550, 12 Am. St. Rep. 44, it is said: ་ "The rule is well settled by unanimous decisions of the Supreme Court of the United States that, when a law of Congress provides for the disposal and patenting of certain public lands upon the ascertainment of certain facts, the proper officers of the Land Department of the general government have jurisdiction to inquire into and determine those facts; that the issuance of a patent is an official declaration that such facts have been found in favor of the patentee; and that in such a case the patent is conclusive in a court of law, and cannot be atvoid upon its face, or if looking beyond the patent tacked collaterally. Of course, if the patent be for a law upon which it is based, it is found that there is no law which authorizes such a patent under any state of facts, or that the particular tract named in the patent has been absolutely reserved from disposal, then the patent would be worthless and assailable from any quarter. For instance, if a certain section or a certain township described by legal subdivisions should be expressly and unconditionally reserved by Congress from disposal under any statute, a patent for any part of such tract would be void. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes But, if a large body of public lands be subjected | court when such course is necessary to prevent to sale or other disposition under a law which has merely a general reservation of such parts of those lands as may be found to be of a particular character-such as swamp or mineral then the Land Department has jurisdiction to determine the character of any part thereof, and a patent is conclusive evidence that such jurisdiction has been exercised. In such a case the patent could be attacked only by a direct proceeding, and by a person who connects himself directly with the title of the government." See, also, Jameson v. James, 155 Cal. 275, 100 Pac. 700; Traphagen v. Kirk, 30 Mont. 562, 77 Pac. 58; United States v. Mackintosh, 85 Fed. 333, 29 C. C. A. 176; Southern Dev. Co. v. Endersen (D. C.) 200 Fed. 272, 281. The Supreme Court of Dakota, in Forbes v. Driscoll, 4 Dak., at page 359, 31 N. W. at page 645, after reviewing many cases in which it had been held that the findings of the Land Department of the United States as to the character of land is final, says: "A contrary view of the law would bring the courts and land offices into constant collision. A decision of the courts in advance would take from these officers the jurisdiction the law has given them to hear and determine 'all rights of pre-emption arising between different settlers.' It would bring into the courts for decision all claims and contests before the department, and the absurd result would be reached, as we are informed by briefs of counsel has in fact resulted in this case, to wit: That the plaintiff, Forbes, has judgment in the district court of the territory, awarding him the possession of the entire quarter section, while the defendant Driscoll has the decision of the Land Department, entered since the trial of this case, awarding him the patent, and consequent right to posses: sion, of the same premises. We have no doubt that the manifest intent of the statutes of the United States, as is so clearly expressed by the decisions of the Supreme Court, was to vest in the Land Department an exclusive jurisdiction of all questions relating to the sale and disposition of the public lands up to the time of the issue of the patent; and this court is therefore of the opinion that the district court erred in entering judgment upon such verdict for the possession of the entire quarter section, ousting the defendant Driscoll from his possession and improvements made upon the vacant and unimproved portions of the land. It is not meant to be understood by this decision that an action for possession does not lie under section 650 of the Code of Civil Procedure to protect the actual possession of the pre-emptor against an intruder, or that such action might not lie to recover, beyond the actual possession, the entire quarter section as against a trespasser. This court contents itself with declaring that the judgment ousting the junior pre-emptor from his possession and improvements, obtained and made without trespass, is erroneous, and must be reversed." [2] Since the issuance of a patent by the government is a conclusive finding that the land is question is not mineral in character, except in certain direct proceedings, the ques tion is: Can this court ignore the findings and judgment of the lower court? In Ridge v. Manker, 132 Fed. at page 601, 67 C. C. A., at page 598, Judge Hook uses the following language: "An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial a miscarriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully acquired, or to protect itself from imposition or further prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist. Chamberlain v. Cleveland, 1 Black, 419, 17 L. Ed. 93; Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067; Wood Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379: Board of Liquidation v. Railroad Co., 109 U. S. 221, 3 Sup. Ct. 144, 27 L. Ed. 916; Dakota v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428, 28 L. Ed. 981; Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620, 33 L. Ed. 1016; Washington and Idaho Railroad Co. v. Cœur d'Alene R. & N. Co., 160 U. S. 101, 16 Sup. Ct. 239, 40 L. Ed. 355; Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. 794, 44 L. Ed. 926." The rule laid down in the opinion of Judge Hook appeals to us as being both reasonable and just. While we cannot try de novo the issues involved in the lower court, we think we can take cognizance of the issuance by the federal government of a patent (which is not denied) which is conclusive of the matter. If such were not the case, gross injustice might result in many instances, of which the case at bar is an example. In this controversy one tribunal has decided that the land in question is mineral, and has rendered judgment awarding possession of it to plaintiffs, while the tribunal established by the federal government for the purpose of determining just such questions as to its property has held to the contrary, and its determination is universally recognized as conclusive of the question. Plaintiffs' judgment is but an empty shell, and one which, in our opinion, can and should be set aside. Shall this court, The sole question is: when confronted with the indisputable and unquestioned proof that the government has determined that the land in question is nonmineral in character, affirm a judgment or even consider the case upon the record as made in the lower court? If we were to affirm the judgment of the lower court, it could be set aside in an independent proceeding. What, then, is the sense in considering this case upon the record made in the lower court? As shown by the cases cited by Judge Hook, appellate courts have, in a variety of stiuations, disposed of cases otherwise than upon the record brought up. It is no novel procedure. The situation here presented is similar to that which is brought to the attention of the court when, before determina tion on appeal, the issues involved are settled between the parties and there is no longer an is brought to the attention of the court, the existing controversy. When such a situation case in which it exists is always dismissed. Haley v. Eureka, etc., 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815; Wedekind v. Bell, 26 Nev. 395, 69 Pac. 612, 99 Am. St. Rep. 704; Pacific Live Stock Co. v. Mason Valley Mines Co., 39 Nev., 153 Pac. 431, recently decided by this court. If a court can determine that a proceeding is a moot one, why In the case of Goldstein v. Behrends, 123 Fed. 399, 59 C. C. A. 203, which was an action to determine the right of possession to a portion of the public domain of Alaska, it is said: may it not consider indisputable and un-provisions of rules 2 and 3 of the Supreme disputed evidence that the government of the Court. Notice of appeal in this cause was United States has made a finding which is filed in the court below on the 7th day of conclusive, not only upon the parties, but up- July, 1913. On the 12th day of August, 1913, on all courts? the clerk of the court below attached his certificate to the record on appeal. The record was filed in this court on the 22d day of July, 1914. On the 27th day of February, 1915, the court, upon application therefor, made an order for substitution of attorneys for appellant. Thereafter, and on the 20th day of September, 1915, counsel for appel. lant filed a brief upon the merits. Thereafter, and on the 5th day of October, 1915, counsel for respondent Garrecht filed and served a written notice of motion to dismiss the appeal. At the time of filing the motion to dismiss a certificate of the clerk of the court below, as required by subdivision 2 of rule 3, was also filed. The motion to dismiss was heard on the 4th day of November, 1915. The only objection to the motion to dismiss upon the part of counsel for appellant is based upon the provisions of rule 8 and the case of Kirman v. Johnson, 30 Nev. 146, 93 Pac. 500, 96 Pac. 1057, is relied upon to sustain their contention that the motion to dismiss comes too late. Rules 2, 3 and 8 "Conceding that the action was for the purpose of determining the right of possession, the controlling question was as to the mineral character of the land. This question was within the jurisdiction of the Land Department to determine, and, upon being submitted to that department in the proceedings for a patent, was determined adversely to the appellant by the Secretary of the Interior; that officer holding that the land was not mineral, and awarding the land to the town-site trustee. This decision is conclusive as to the character of the land, and disposes of the controlling question involved in this case. The appellee in possession of the land has acquired title to it under the town-site patent, and this action in support of his claim to have possession and receive that title has ceased to have a subject upon which a judgment of the court can operate. Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293.". It is the order of the court that the case be remanded, and that the trial court enter an order vacating the judgment and dismiss-provide: ing the action; the parties to pay their own costs in both courts. (39 Nev. 310) SKAGGS v. BRIDGMAN et al. (No. 2134.) (Supreme Court of Nevada. Dec. 31, 1915.) APPEAL AND ERROR 797-MOTION TO DIS MISS-TIME FOR FILING. Rule 2. "The transcript of the record on appeal shall be filed within thirty (30) days after the appeal has been perfected and the statement settled, if there be one." ment.' Rule 8. "Exceptions or objections to the transcript, statement, or any other techni Rule 3. "1. If the transcript of the record be not filed within the time prescribed by rule 2, the appeal may be dismissed on motion without notice. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the opposite party; and, unless so That a motion to dismiss an appeal for non-restored, the dismissal shall be final and a bar compliance with Supreme Court rules 2 and 3, to any other appeal from the same order or judgproviding that the transcript of the record must be filed within 30 days after the appeal has been perfected and the statement settled, otherwise the appeal will be dismissed on motion without notice, was not filed until more than three terms had elapsed after the appeal was taken and the record filed in the Supreme Court, did not amount to a waiver of the right to make a motion; Supreme Court rule 8, providing that objections to the record affecting any right "which might be cured on suggestion of diminution of the record," not applying. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3149-3154; Dec. Dig. 797.] Appeal from District Court, Elko County; Edward A. Ducker, Judge. Action by Sarah Belle Skaggs, administrator of the estate of Thomas Bryant, deceased, against W. E. Bridgman and another. From judgment for defendants, plaintiff appeals, and defendants move to dismiss the appeal. Motion granted. Sweeney & Morehouse and W. W. Griffin, all of Carson City, for appellant. Carey Van Fleete, of Elko, and Charles R. Lewers, of San Francisco, Cal., for respondents. NORCROSS, C. J. This is a motion to dismiss the appeal for noncompliance with the * cal exception or objection to the record affecting "If the transcript of the record be not filed within the time prescribed by rule 2, the appeal may be dismissed upon motion during the first week of the term without notice." In Robinson v. Kind, 25 Nev. 273, 59 Pac. 863, 62 Pac. 705, this court considered, but did not decide, whether a failure to make a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes motion to dismiss "during the first week of The fact is, however, that this assertion is the term" would amount to a waiver of the unsupported by anything in the record before right to make such motion. The rule as it us. The affidavit of appellant, filed in the now reads places no limitation upon the time court below in furtherance of his motion, within which a motion to dismiss for failure makes no such declaration. In the stateto comply with the provisions of rule 2 may ments made by counsel for appellant before be made. We see no reason for holding, and the trial court on the day of the trial in exnone has been urged, that the motion to dis-planation of the absence of appellant and in miss is not in time. Where there has been furtherance of the motion for a continuance, a failure to comply with the provisions of there is nothing indicating that appellant rule 2, a motion to dismiss, supported by proper certificate of the clerk, would ordinarily be granted as a matter of course. We need not now consider whether, upon a consideration of a motion to dismiss, notice of which has been given, the appellant making a showing that would warrant a restoration ' of a dismissed appeal, the order for that reason should be denied, as no such showing has been made. Neven had been "cited into court in Elko," or that appellant had been called there by any process issued out of any court. And it may be not out of place to observe here that had any citation or process issued, calling for the presence of the appellant, Neven, it would have been a simple matter to have produced the same in the trial court either in furtherance of the motion for a continuance or as a part of the affidavit of appellant, and the same would thereby have become a part of the record before this court. The testimony of the respondent, Mrs. Neven, in detailing a conversation between herself and appellant relative to his going to Elko, sets forth that on Thursday, April 2d, when appellant invited her to go with him to Elko, she inquired of him: "Is it necessary for you to go tonight?" To which he, the appellant, answered: “No; it is not; but I will have to go some time soon." Petition for rehearing should be denied. NORCROSS, C. J., and COLEMAN, J., con cur. (39 Nev. 115) STATE v. BLAHA. (No. 2193.) (Supreme Court of Nevada. Dec. 31, 1915.) 1. CRIMINAL LAW 1086-APPEAL-PRESENTATION-ADMISSION OF CONFESSION. An assignment of error complaining of the admission of a confession could not be considered where the transcript of the testimony Appeal from District Court, Washoe Coun- disclosed no objection, though appellant's county; Cole L. Harwood, Judge. On rehearing. sel stated to the court that objections to the admissibility of the confession had been made and apparently omitted from the transcript that such was the case and a request made for diminution of the record. For former opinion, see 148 Pac. 354. Re through inadvertence, in the absence of proof hearing denied. Sweeney & Morehouse, of Reno, for appellant. Dodge & Barry, of Reno, for respond ent. MCCARRAN, J. Counsel for appellant, in their petition for rehearing, make the following assertion: [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2736-2770, 2772, 2794; Dec. Dig. 1086.] 2. CRIMINAL LAW 1169-HARMLESS ERROR -EVIDENCE-STATEMENTS BY ACCUSED. Error, if any, in permitting witnesses to testify to conclusions relative to statements made by accused to officers while he was under tion between defendant and the officers was dearrest, was harmless, where the whole conversatailed, and it clearly appeared that the state "At the same time the fact exists that Neven was cited into court at Elko county to make an accounting for the guardianship of Le Roy Nev-ments were freely and voluntarily made. en, his nephew." If the statement of counsel for appellant here quoted was supported by the record before us to any extent whatever, then a rule might apply in favor of appellant different from that asserted in the former opinion of this court. Neven v. Neven, 148 Pac. 354. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. 1169.] 3. CRIMINAL LAW 414 SELF-SERVING STATEMENTS-FOUNDATION FOR ADMISSION— NECESSITY. In a prosecution for burglary, it was not necessary that a foundation be laid for the ad mission of defendant's statements that he pur-1 cribing the record. No proof appears that chased the stolen jewelry in certain cities. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 862, 936; Dec. Dig. 414.] this is the case, and no request has been made for diminution of the record; hence the suggestion of counsel for appellant cannot be considered. The objection which counsel for appellant asserts was, in fact, made, even if embodied in the record, would not justify this court in holding the same to be substantial error. Assuming that the same objection was made to the testimony of the chief of police as that made to the testimony of the two other officers, the error, if any, amounts simply to the sustaining of an objection to questions propounded to the witnesses whether any inducements, threats or offers of reward were made to procure the statements or confession. Even assuming that the court may have committed technical error in permitting the witnesses to testify to conclusions, it also appears that the whole conversation between the defendant and the officers was de [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1895-1901, 1960, 1984; tailed, and from all of the facts and circumDec. Dig. 786.] NORCROSS, C. J. [1-3] Appellant was convicted of the crime of burglary of the first degree, and appeals. Evidence was introduced establishing the fact that a burglary was committed on the night of the 25th day of July, 1915, in the city of Reno, and certain jewelry taken from a trunk stored in a building upon the property of one R. T. Harwell. Upon the afternoon of the day following the burglary appellant was arrested by a police officer of the city of Reno while in the act of attempting to dispose of the stolen jewelry, and was at once taken to the police station. The arresting officer and another member of the city police force, over the objection of counsel for defendant, were permitted to testify to statements made by the defendant to the effect that he purchased a ring, which was part of the stolen jewelry, in the city of Chicago, and a necklace, which was also a part of the stolen jewelry, in the city of Seattle. Shortly subsequent to making these statements the defendant made a confession to the chief of police that he committed the burglary. Error is assigned in the admission of the statements and confession upon the ground that no proper foundation had been laid. The transcript of the testimony discloses no objection whatever to the admission of the confession. Counsel for appellant advises the court that objections to the admissibility of the confession because a proper foundation had not been laid may have been inadvertently omitted in trans stances there was no room for serious question that the statements and confession were made otherwise than freely and voluntarily. Besides, it was not necessary to lay any foundation for the admission of the statements made by the defendant as to how he came into possession of the jewelry in ques tion. "Self-serving statements made by or for the accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity may then be shown. The fact of their falsity admits them as indicating an attempt to explain away incriminating circumstances by falsehoods." 12 Cyc. 429. Error is assigned in the refusal to give certain instructions requested by defendant. With the exception of one requested instruction, hereafter to be referred to, the instructions requested and refused, so far as they were material, were substantially covered by other instructions given by the court. [4] Error is assigned in the failure of the court to give an instruction of its own motion upon the maxim, "falsus in uno, falsus in omnibus." If counsel for defendant was of the opinion that an instruction of this kind was material, it was incumbent upon him to request the same. [5] The following instruction requested by counsel for the defendant was refused: ness, and has testified in his own behalf. This is his legal right, and you are not permitted under the law to discredit or reject his testimony simply on the ground that he is the accused, and on trial on a criminal charge." "The defendant has offered himself as a wit Section 310 of the Criminal Practice Act (Rev. Laws, § 7160), as amended by the Legislature of 1915 (St. 1915, c. 157), provides: "In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offenses, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness, the credit to be given his testimony being left For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |