83 Cal. 296 | Cal. | 1890
This was an action to determine the right to a patent to certain placer-mining ground. The defendants applied for a patent to a tract called the Rough Diamond mine. The plaintiffs claimed a tract of thirty acres, which overlapped a corner of the defendants’ claim to the extent of 7.44 acres. This latter piece is the one in controversy. An adverse claim was filed by the plaintiffs; and thereupon such proceedings were had that the present action was brought under section 2326 of the Revised Statutes to determine the validity of the respective claims. The trial court gave judgment for the defendants, and the plaintiffs appeal.
1. The plaintiffs’ mine is made up of two claims,— one of twenty acres, alleged to have been located by Severino Gobbi in 1878, and the other of ten acres, alleged to have been located by the plaintiff Frank Anthony in 1885.
In relation to the Gobbi claim, the court found as follows: “That on December 6, 1878, one Severino Gobbi, a foreigner, sought to locate a placer-mining claim by posting on the premises a notice claiming in his own name twenty acres of ground situated in Chili Gulch
The evidence justifies this finding. It shows that Gobbi did not file his declaration of intention to become a citizen until the day after he posted his notice of location; and it does not show that he did anything else after his declaration of intention, except, perhaps, to record his notice of location. The appellants assert in their specification that “there were no local rules or laws in force,” and their counsel maintain in their brief that there were none. Certainly, there is no evidence of any local rules of any particular tenor; none requiring notices to be recorded, for example. Therefore, recording the notice was not required (Thompson v. Spray, 72 Cal. 533; Souter v. Maguire, 78 Cal. 544); and not being required, it was useless. Leaving the record out of consideration, we see nothing that Gobbi did to effect a location except the posting of his notice; and at the time he posted his notice he was not a citizen, and had not declared his intention to become such. Under these circumstances, we do not think he acquired any right. (Rev. Stats., sec. 2319; Lee Doon v. Tesh, 68 Cal. 43.)
There is another reason why he acquired no right. The court finds: “That said Gobbi did not mark out on the ground the boundaries of such attempted location, nor did he set any stakes or marks defining the limits of said claim.”
There is no specification attacking this finding. And
In relation to the claim alleged to have been located by the plaintiff Frank Anthony, the ctiurt finds that he “did not mark out upon the ground the limits of such claim by either stakes or monuments defining his boundaries.” The only specification attacking this is as follows: “Finding 4 is contrary to the evidence in this, to wit, that the evidence shows that plaintiff Frank Anthony, in locating the ground therein described, fully complied with the laws and statutes of the United States with reference to the location of placer-mining claims, and that there were no local rules or laws in force.”
The finding designated as “4” contained three specific statements of fact; and this being the case, the mere designation of it by number, as not sustained by the evidence, was not sufficient as a specification. (Eddelbuttel v. Durrell, 55 Cal. 278, 279; Parker v. Reay, 76 Cal. 105.) And the clause that the evidence showed that the locator had “ fully complied with the laws and statutes of the United States with reference to the location of placer-mining claims ” amounted merely to a legal proposition, and did not point to any finding of fact. (Moyes v. Griffith, 35 Cal. 556; Coveny v. Hale, 49 Cal. 552; Thorne v. Hammond, 46 Cal. 534; Doherty v. Enterprise Mining Co., 50 Cal. 187.)
But if it be assumed in favor of the appellants that the specification is sufficient, the result would be the same, because the evidence does not show that the locator marked any boundaries upon the ground.
Neither of the plaintiff’s locations, therefore, were of any validity.
2. Did the defendants show any right to a patent to the piece in controversy?
In this regard it is to be remembered that each party is to establish his right against the government as well
The defendants’ answer in this case fails to show any right in them to a patent to the tract in controversy. They claim under two locations, one known as the Green & Guy claim, and the other known as the A. K. Smith
The evidence in relation to the claims is meager and unsatisfactory; but it is unnecessary to examine it in detail, because the matters above referred to are sufficient to dispose of the appeal. It is sufficient to say that in our opinion there are several particulars in which it clearly fails to make out a case of right in the defendants against the United States. In fact, hardly anything that was required is shown to have been done.
The defendants contend, however, that they were in possession of the ground for a sufficient time to entitle them to a patent without reference to any location. And they rely upon the following provisions of the Revised Statutes:—
“ Sec. 2332. Where such person or his grantor has held and worked a claim for the period equal to the time prescribed by the statute of limitations for mining claims of the state, evidence of such possession and working of the claim for such period shall he held sufficient to establish a right to a patent thereto under this chapter.”
The appellants contend that the evidence d >es not show that the defendants or their predecessors were in possession of the property for the period prescribed by the above provision; and the respondents reply that possession is found, and that there is no specification attacking the finding. But we do not think that there is any finding of possession of the tract in controversy. The finding is, that for five years prior to 1877, Green
Similar observations apply to the A. K. Smith & Co. claim of six hundred feet.
But if the possession "were otherwise sufficient, the showing would still be defective, because it is not pleaded or found that the persons whose possession is relied on were citizens of the United States, or had declared their intention to become such. That class is the only one that can acquire mineral land from the government. (Rev. Stats., sec. 2319; Lee Doon v. Tesh, 68 Cal. 43.) The section above quoted provides an additional mode of acquisition, but does not enlarge the class who can acquire.
Upon the record before us, "we think that none of the parties showed a right to a patent for the tract in controversy. And we therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.
Belcher, C. C., and Vanclief, C., concurred.
For the reasons given in'the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded for a new trial, with leave to the parties to amend their pleadings if so advised.