73 Cal. 541 | Cal. | 1887
— Action of ejectment for a mining claim. Verdict and judgment for plaintiff. Defendants appeal.
1. The plaintiff gave evidence tending to show a location in 1881, and a subsequent location in 1884, the marking of the boundaries under these locations, and the recórding of both claims. The statement does not show that one hundred dollars’ worth of work was done each year, as required by the act of 1872; but this defect in the evidence is not referred to in the specifications.
The defendants gave evidence tending to show a valid
2. The plaintiff gave evidence of an attempted location in 1879, and of acts tending to show a possession within the rule laid down in several cases. (See English v. Johnson, 17 Cal. 109; S. C., 76 Am. Dec. 574; Table Mountain Co. v. Stranahan, 20 Cal. 199; Hess v. Winder, 30 Cal. 349.) The court “struck out all evidence of this first location, for the reason that it appeared that the same had not been made in compliance with law.” It does not clearly appear whether this order was in reference to the “location” merely, or whether it extended to the possession also. But we think the order was in refence to the location, because the non-compliance with the mining law would not be a reason for striking out evidence of the possession.
Without saying whether the acts done were sufficient to constitute a possession, we think the court erred in its charge to the jury with reference to it. The charge was as follows:—
“ In order to make a valid location of mining claims the locator may adopt one of two courses. He may determine to locate his claim in accordance with law and customs. In order to get a title, a possessory title, in this way he must conform to the requirements of law. ...
In the hurry of the trial, the learned judge evidently overlooked the distinction between the right of a party in possession as against mere intruders, and his right as against one who has complied with the mining laws. Possession is good against mere intruders (Attwood v. Fricot, 17 Cal. 37; S. C., 76 Am. Dec. 567; English v. Johnson, 17 Cal. 115; S. C., 76 Am. Dec. 574; Hess v. Winder, 30 Cal. 355; Golden Fleece Co. v. Cable Con. Co., 12 Nev. 321, 322); but it is not good as against one who has complied with the mining laws. (Du Prat v. James, 65 Cal. 556, 557.)
We do not see that the error was cured by other portions of the charge. What is claimed as curing the error is the following: “ Another question presents itself in this case, which I will speak of shortly. Plaintiff’s claim in this case, so far as they are concerned, depends upon a location made by Mr. Penders and son in the year 1881, and a subsequent location made by Wiseman and others in 1884. Of course if the location of defendants, to which I have already referred, was prior to that of plaintiffs, and they have complied with the requirements of the law Since the date of that location, and the location itself was sufficient, no rights could be acquired by plaintiff under the subsequent location.”
This instruction points to the first ground of plaintiff’s right of which the court had spoken. It tells the jury, in substance, that if the defendants’ location was prior to that of the plaintiff, and conformed to. the requirements of the mining law, the plaintiff acquired no right “ under the subsequent location.” But it does not say that the defendants’ location would prevail over the
3. There was evidence tending to show an adjustment of boundaries between the parties by oral agreement. With reference to this the court instructed the jury, at defendants’ request, as follows:—
“The jury is instructed that no estate or interest in real property (except a lease for not more than one year), nor any trust or power over or concerning it, or in any manner relating .thereto, can be created, granted, assigned, surrendered, or declared otherwise than by operation of law, or a convejmnce or other instrument in writing subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.”
This was undoubtedly correct. Before 1860 a verbal transfer was held to be good when accompanied with a change of possession. (Table Mountain etc. Co. v. Stranahan, 20 Cal. 208; King v. Randlett, 33 Cal. 321.) In 1860 an act was passed with reference to gold mines (Laws 1860, p. 175), and afterwards extended to all mines (Laws 1863, p. 98), which was construed to do away with oral transfers. (See Patterson v. Keystone Mining Co., 30 Cal. 363; Goller v. Fett, 30 Cal. 484, 485; Felger v. Coward, 35 Cal. 652.) Section 1091 of the Civil Code has been held to require a writing for the transfer of mining claims. (Melton v. Lambard, 51 Cal. 259, 260.)
The oral agreement, therefore, could not operate as a transfer. It seems to have been supposed, however, that what took place could have some effect by way of estoppel, and in this regard the court instructed the jury:—-
“ That if they believe from the evidence in this case that the location of John W. Hart and others was the first location, which was good according to law, that
This was improper, — if for no other reason, because there was no evidence of any improvement made “ under such agreement and understanding,” or otherwise, and. nothing which would give rise to an estoppel.
We therefore advise that the judgment and order be reversed, and the cause remanded for a new trial.
— For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.