128 Cal. App. 2d 635 | Cal. Ct. App. | 1954
This is an appeal from a judgment quieting title to certain mining claims.
Several placer mining claims were located in 1949 by the Baxter group of defendants. After certain developments they leased these claims to the California Dolomite Company, which entered into possession and commenced active mining and milling on the premises. A year and a half later, Stand-ridge and Mingus made claim to the royalties, basing their claim of title on locations claimed to have been made by Mingus and his predecessors in 1929 and 1931. Standridge claimed under Mingus and apparently did not appear in the the picture until 1950. The Dolomite Company brought this action to compel the conflicting claimants to interplead and litigate their claims. By appropriate pleadings the different claimants sought to quiet their title to these claims, and the action was tried as if they were plaintiffs and defendants, respectively.
At the trial it appeared, without dispute, that Mingus and others had in 1929 and 1931 recorded six location notices, each describing a different quarter section of land by refer
The appellants contend that the court’s opinion and judgment were based squarely upon the fact that he considered the testimony of Mingus so contradictory and unsatisfactory as not to be sufficient to support a finding that copies of the location notices which were recorded in 1929 were actually posted upon the quarter sections claimed thereby. This contention is based upon a minute order entered some five months before judgment was entered. However, there were several hearings thereafter with reviews of the evidence, a
Appellants’ main contention, that the recording of the location notices in 1929, and the filing of proofs of labor and notices to hold, are sufficient to obviate any necessity for further proof on their part, because of section 2332, U. S. Rev. Stats.; and that this is established by such cases as Lind v. Baker and Hess v. Moodey, cannot be sustained. The mere recording and filing of such papers without regard to what was done on the ground could not be conclusive, and the cited cases do not so hold. Assuming that such recording and filing would be sufficient to make out a prima facie case, this may well be overcome by evidence of the factual situation and what was actually done. Section 2332, U. S. Rev. Stats., provides that where persons have held and worked their claims for the required period, evidence of such possession and working shall be sufficient to establish a right to a patent. That the elements of holding and working the claims, and the matter of continued possession in the manner contemplated by the mining laws, are questions of fact and dependent upon the evidence received in a particular case, is fully recognized in Lind v.
If, as we think, factual questions were properly presented and considered by the court, the evidence amply sustains the findings and judgment. The record is voluminous, and it would serve no useful purpose to review the evidence in detail. The testimony of Mingus, the main witness for the appellants, was not only self-contradictory but was so obviously incorrect in many respects, as shown by a number of well established facts, that the judge was justified in concluding, as stated by him, that he was unable to accept such testimony as sufficient to support findings favorable to the appellants. Mingus was 82 years of age and his testimony was far from satisfactory. Among other things, he testified that he lived for a part of one summer in a cabin which was shown to have been torn down several years before, and that he lived for some time in an old tunnel which was shown to have been occupied at that time by others who had not even seen him there. It was clearly shown that some notes he said he had put in certain places were actually placed on other quarter sections. It rather clearly appeared that Mingus did not know where he did any such work as he claimed to have done, and the trial judge observed, “he did it some time place out in this general territory, all true, but the type of work was not such as to impress itself upon anybody. He said himself the work he did there in his acts of possession amounted to scratching the surface in a number of places, with one exception.” This exception was one old tunnel in which considerable work had been done, but there was substantial evidence that this work had been done by a number of other people over many years. The evidence, with the reasonable inferences therefrom, fully supported the conclusion that the original location notices had not been posted
On the matter of claimed newly discovered evidence, in connection with the motion for a new trial, it was claimed that since the trial Mingus had located a surveyor who had made a survey of these sections in 1929, that this surveyor was one of the original locators of these claims, and that he would testify that he assisted in, saw or personally placed said location notices on the ground and in the proper places on the quarter sections described in such notices. There was a very unsatisfactory showing of diligence in obtaining any such evidence in time for the trial. This surveyor stated in an affidavit “that he has no records relative to any surveys made in 1929 for S. M. Mingus, or at any other time.” He also stated that he had continuously resided in the same place since 1922, that he had operated a regular office for the last 12 years, and that he was listed in the telephone book. While he stated in another affidavit that he assisted in placing location notices on said claims on the quarter sections described in each, notice, and while this would have corroborated Mingus’ testimony with respect to one point, it would merely
The judgment is affirmed.
Griffin, J., and Mussell, J., concurred.
A petition for a rehearing was denied December 7, 1954, and appellants’ petition for a hearing by the Supreme Court was denied January 3, 1955. Traynor, J., was of the opinion that the petition should be granted.