This action was brought for the purpose of obtaining possession of a certain mining claim in Imperial County. The plaintiff, in his complaint, alleges that he is the owner and entitled to the possession, under- and by virtue of the mining laws of the United States, of a certain quartz or lode mining claim known and designated as the Jabón Lode Mining Claim, according to a loca *459 tion notice thereof, dated and posted on the twentieth day of January, 1923, and recorded in the office of the county recorder of Imperial County, which was relocated by plaintiff by virtue of an amended certificate of location, dated October 17, 1924, and recorded on the sixth day of June, 1925, and that on or about the first day of July, 1926, the defendant entered into and upon said mining claim for the purpose of mining upon the grounds embraсed therein, and ever since said time has trespassed thereon and has extracted ore therefrom.
The defendant in his answer puts in issue the title and right of possession of plaintiff in and to said property and alleges that ever since the fifteenth day of June, 1926, he was and is the owner in the actual occupation of certain mining claims which are designated “Peak Number Two,” “Peak Number Threе,” and “Sunset Number One.” This controversy arose out of the fact that the mining claims of the defendant, the actual occupancy of which is conceded, overlapped the boundary line of the Jabón claim as subsequently amended, and that the territory embraced within the claims occupied by the defendant, embraced a substantial part of the area of the Jabón claim accоrding to said amended location.
It is conceded that the area embraced within all the mining claims involved in this controversy constitutes a portion of the public domain and was at all of the times involved in this action open to the public for mineral locations subject, of course, to the paramount title of the United States, and subject to any rights which may have been acquired by virtue of рrior locations.
The court found that on or about the twentieth day of January, 1923, Antonio Contreras and Harry McPhaul made discovery of rock in place bearing valuable mineral deposits, and that they entered into possession of and located a certain mining claim designated “Jabón Mining Claim” by posting, at the point of said discovery, a notice of said location, as prescribed by the mining laws of the United States and of the state of California, and by marking the boundaries thereof on the ground by monuments, as the same are described in said location notice, a true copy of which was thereafter recorded in the office of the county recorder of Imperial County, California.
*460 The court further found that said location, when made as aforesaid, did not interfere with any prior existing rights of other owners.
The court further found that on or about the seventeenth day of October, 1924, the plaintiff herein, who had acquired the possessory title of the original locators (if any they had), to the Jabón claim, apprehending that said original location of the Jabón Mining Claim was defective or erroneous, made a survey of the surface indications of the lode deposits refеrred to in said original location notice, and distinctly marked the lines and boundaries of said survey on the ground by means of substantial corner posts, and on the twelfth day of November, 1924, posted on the said surveyed area, a notice designated “amended location notice,” which said amended location notice was dated the seventeenth day of October, 1924, and that on or about thе sixth day of June, 1925, plaintiff caused said amended location notice to be recorded in the office of the county recorder of Imperial County, California.
The court further found that in May, 1925, the plaintiff acquired, by means of a deed of conveyance, all of the right, title and interest of the original locators of the Jabón Mining Claim, and that at the time of making said original location the loсators thereof had entered into possession, and, ever since, the exclusive possessory rights to the same and to the said Jabón Mining Claim under the amended location, from its incipiency, have at all times, continuously, been held by said locators or the plaintiff as their immediate and sole successor in interest.
In pursuance of the findings, the court entered judgment in favor of the plaintiff for the рossession of the disputed claim. From this judgment defendant appealed on a bill of exceptions.
The appellant attacks many of the findings of the court as not supported by the evidence, and, in particular, the finding with respect to the discovery of rock in place bearing valuable mineral deposits by the original locators on January 20, 1923, and also the finding as to the exclusive possessory rights to said mining claim being vested in the plaintiff. It appears from the evidence that on the thirteenth day of February, 1924, subsequent to the posting of the notice on the original Jabón claim, but prior to the
*461
recordation thereof, one Henry McMahon located a claim known as the “Mary Jane,” extending in an easterly and westerly direction and overlapping a portion of the Jabón claim. But this claim was abandoned by McMahon in June, 1925. Between April 4, 1925, and March 22, 1926, notices of location of the “Peak” claims and the “Sunset” claim, now occupied by defendant, were posted and filed. There was no evidence introduced at the trial of the discovery of a mineral lode upon the property by either of the original locators, unless the declarations cоntained in the original notice of location could be considered by the court as such evidence. That location notice contains the following recital: “This Mining Claim, the name of which is the Jabón Mining Claim, situate upon lands belonging to the United States of America, and in which there are valuable mineral deposits, was entered upon and located for the purpose of explorаtion and purchase, etc.” Said location notice contains an additional recital, as follows: “The length of the claim is 1500 feet and we claim 1300 feet in a southwesterly direction and 200 feet in a northeasterly direction from the center of the discovery shaft at which this notice is posted lengthwise of the claim, together with 300 feet in width of the surface grounds, on each side of the centеr of said claim. The general course of the lode deposit and premises is from the northeasterly to the southwesterly.” But the recitals in the location notice cannot be accepted as proof of the various steps essential to perfect a mining claim. In the case of
Mutchmor
v. McCarthy,
*463 “Any person, a citizen of the United States, or who has declared his intention to become such, who discovers a vein or lodе of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit, may locate a claim upon such vein or lode, by defining the boundaries of the claim, in the manner hereinafter described, and by posting a notice of such location, at the point of discovery.”
It will be noted from the foregoing section of the Civil Code that the discovery of a vein or lode of quartz is a necessary and essential step in the perfection of a title to a mining claim. And while it is true that a previous location without discovery may become valid by a subsequent discovery provided the rights of the other locators do not intervene, an actual discovery must be made. In the case of
Book
v.
Mining Co.,
However, a loсator seeking to perfect his possessorytitle prior to making a valid location is required to do more than post his location notice and mark his boundary. In
Smith
v.
Union Oil Co., supra,
the court said: “It has been held that before a discovery an actual occupant diligently engaged in the work of discovery has the better right. But after discovery and location, continuous actual occupation was nоt required by any statute, in order to preserve the paramount legal right. In the course of years it transpired that, after discovery and complete location had been made, one person or corporation would acquire several such claims and allow them to lie idle and undeveloped. This was against the policy of the law, which was to encourage the working of thе mines and the extraction of precious metals therefrom.” The court then points out that in order to remedy this situation an act was passed. in 1872 requiring that on each claim located, and until a patent had been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during the year. And it is pointed out that the annual assessment work required by the act of Congress of May 10, 1872, now incorporated in section 2324 of the United States Revised Statutes [30 U. S. C. A., sec. 28], applies only to work required to be done after location has been perfected. In
Miller
v.
Chrisman,
While it is not conceded by appellant that the affidavits of the annual assessment work upon the claim were sufficient to prove that the necessary amount of labor required to be done annually was proved, yet for the purposes of this decision we will assume that they prove that labor was performed on the Jabón claim of the value of one hundred dollars for each year, after the attempted location by Contreras and McPhaul, but the annual assessment work required by law to perfect a location does not comply with the requirements sеt forth in the foregoing decisions. We have scrutinized the record with a view of finding therein evidence of diligent prosecution of the work and such continuous occupancy as to vest a possessory title to the mining claim in the plaintiff, but we think that the evidence falls far short of the requirements. We may briefly summarize the evidence as follows: It appears that' the plaintiff did not reside upon or in the vicinity of the disputed location; that during the period between October, 1924, and commencement of this action he was personally upon the property but five or six times, and between some of his visits intervals of many months elapsed. The evidence of any discovery work is extremely meager. A portion of his testimony is as follows: “I went over the lease I claimed in 1924, October 17, 1927, and I never went оver the lease completely again until September of this year.” *466 Again he testified: “In regard to the southeast corner, we packed that timber in there. We packed that in there ourselves in October, 1924. Three years ago. I believe the 7th day of December, 1924.” Again he testified: “In my direct testimony I also spoke of some cuts on the east side line here. I don’t recall when all of that work was done. There has been quite a little work done there. This last work was done. I had this work done (indicating) the part marked 1926 assessment cut. That only refers to the most easterly mark on there.” He further testified: “Here is indicated the Homer Black 1927 cut, he was working there when I got the property.” He further testified: “All the work claimed for the year ending July 1, 1927, is the assessment work for 1926.” There is also testimony that Contreras did some work on the claim in June, 1926, and that prior to that time there was no work going on in the district, except on claims known as the Vitrefrax. In the immediate vicinity of the Jabón lode there was no work going on until 1926.
It is apparent that a portion of the work described in the testimony of plaintiff constituted the so-called assessment work, which, as pointed out in the authorities cited, does not constitute a continuous prosecution of the work sufficient to establish a possessory title. It must be borne in mind that neither of the original locators of the Jabón claim testified on behalf of the plaintiff, and whatever their activities, by way of discovery work may have been, is a matter of conjecture except what may be inferred from the very meager evidence afforded by the purported affidavits of assessment work. Hiving to the evidence of the plaintiff the most liberal possible construction, and construing it most favorably for him, it proves at most but an occasional visit to the property, labor performed at intermittent periods in a most perfunctory manner. Clearly this is insufficient.
We therefore conclude that evidence wholly fails to show any valid discovery of a quartz-bearing lode or vein оr continued occupation or diligent operations for the purpose of discovery of such vein or lode, as prescribed by law, prior to the intervening rights of the defendant.
Plaintiff argues at length that his adversary failed to show that he has a possessory title to the claims occupied
*467
by him. But beyond the fact that he is and has been since July, 1926, in the continued possession of the claims to whiсh he asserts title, we need not be further concerned. The rule is well established in California that in a possessory action of this character, the plaintiff must rely upon the strength of his own title rather than upon the weakness of that of his adversary. Many authorities might be cited in support of this rule, but we will content ourselves by reference to the following:
Weed
v.
Snook,
The judgment is reversed.
Cary, P. J., and Marks, J., concurred.