65 Cal. 555 | Cal. | 1884
This is an action to recover possession of a mining claim in Tuolumne County. The action was commenced in April, 1881, by J. J. Du Prat as plaintiff; he having died after the judgment in the court below, his executrix was substituted. For convenience, the deceased is herein spoken of as plaintiff.
The judgment was in favor of defendants. On this appedi, on behalf of plaintiff, points are made as follows: —
First—Defendants having entered on an actual possession of plaintiff, their entry can give them no right as against him.
The facts in this regard, as found by the court, are substantially as follows: The plaintiff and his predecessors in interest had, from 1863 down, worked the mine, and had expended, in
It has been held by the Supreme Court of the United States, and by this court, that a person cannot enter upon the actual possession of another for the purpose of laying foundation for a pre-emption claim to public lands of the United States; and it is claimed by the appellant that the same principle operated upon the
Second—Plaintiff insists that he performed, the work required, and therefore did not forfeit his right to hold the ground.
The court found that he performed, in the year 1880, three days’ labor, of the value of three dollars per day, and no more. The plaintiff claims that the court erred in excluding from its conclusion as to labor performed on the claim, his time and expenses spent and incurred, as follows: In October, 1879,' plaintiff leased a mill located about a quarter of a mile from his claim, and from that time until December 25th made unsuccessful efforts to obtain water to operate the mill; about the latter part of December, 1879, or the first of January, 1880, the company owning a ditch let sufficient water run to the mill for the use of plaintiff, but he did not use or attempt to use the same, nor crush or attempt to crush rock or ore; plaintiff went from Groveland to Sonora in said county twice, from Groveland to San Francisco once, and from Oakland to San Francisco five or six times, to see the agent of the water company, for the purpose of getting water to operate the mill; his personal expenses incurred, and the value of his time on those occasions, were from one hundred and fifty to four hundred dollars. We think that in no sense can these expenditures and values be said to be labor performed on the mine.
Third—Plaintiff asserts that the locations of the defendants were invalid.
The court found that notices were posted by the defendants on their respective locations (copies of the notices are given in the findings), and that stakes were driven firmly in the ground at the corners, and stone monuments placed around the same, and that the stakes were marked as corner stakes; the court also found that the defendants distinctly marked the locations on the ground, so that the boundaries could be readily traced, and that the stakes placed at each of the four corners were firmly planted in the ground, and that the stakes and stone mounds built around the same were prominent and permanent monuments, by which, and the descriptions in the notices, the claims could be identified.
The fourth point relates to alleged variations in" the descriptions of the ground located, as between the answer and the testimony. We do not see any substantial variation. Whatever appears is more apparent than real.
Judgment and order affirmed.
Thornton, J., and Sharpstein, J., concurred.