55 Cal. 257 | Cal. | 1880
Ejectment to recover a mining claim. The answer denied the plaintiff’s alleged title, averred title in defendants, and interposed the plea of the Statute of Limitations. The case was tried in the Court below with a jury, a verdict rendered for the defendants, upon Avhich judgment was duly entered, and from the judgment, as well as from the order refusing them a new trial, the plaintiffs prosecute this appeal.
We have looked careful'y through the record, and cannot say that the evidence does not support the verdict. It appears that on the 26th of November, 1856, E. A. Leathe, one of the plaintiffs, and one Holton, located the ground in controversy by recording the same in the mining records of the district as theHolton & Co. claims, and by posting a notice thereon, and, as some of the witnesses for the plaintiffs testified, by setting stakes at the corners, and digging a small ditch around the claims. The mining rules and regulations of the district required, among other things, that, in locating a claim, stakes should be put up at each of its corners, and also, that it shouU be bounded by a small ditch. At the trial there was evidence
We think the evidence sustains the verdict: first, because if it were true, as some of the testimony given on the part of the defendants tended to show, and of which the jury were the judges, that in locating the Holton & Co. claims the important conditions of the local rules and regulations requiring the boundaries to be marked with a ditch, and stakes to be placed at the corners, were not complied with, then it would follow that no valid location was made; and the jury having found for the defendants upon this as well as upon all other questions of fact, we cannot disturb the verdict—there being a substantial conflict in the evidence. ' Secondly, we cannot say, upon the facts as they arc made to appear in the record, that the jury was not justified in finding an abandonment of the Holton & Co. claims prior to the location of the same ground by the parties under whom the defendants claim. Abandonment is a question of intention, and of this intention the jury were to judge, and did judge, in view of all the facts and circumstances of the case. It is true, as stated in the brief of counsel for appellants, that Leathe testified at the trial that there was no intention by him or his co-locators to abandon the claims. But his testimony to that effect was not conclusive upon the jury. If that was so, it would follow that all any party would have to do in order to defeat the defense of abandonment, would be to say he did not intend to abandon. The intention, however, is to be derived, as already observed, from all the facts and circumstances of the case. Considering those facts and circumstances, the jury found for the defendants, and we cannot disturb the verdict on that
It is urged on behalf of the appellants, that the Court below erred in permitting “ evidence of the admissions and statements of plaintiff Patton, (as well as of his acts) spoken and done before he was a tenant in common with his co-plaintiffs, to go to the jury against the defendants’ objections.” This objection of counsel assumes what the record does not show to be the fact. On cross-examination the witness was questioned by the defendants’ counsel as to his knowledge concerning the Joint Stock, the Sweetland-Bicknell, and the Joint Stock Company Consolidated locations, and in response to the question, to which there was no objection, the witness said: “I just knew of their locations by the record, and I once saw a stake which had fallen down, way down at the lower end, near the reservoir— just on the bank of the reservoir.” The defendants then proposed to question the witness, Patton, concerning conversations had between him and some of the defendants prior to the conveyance to him, to which the plaintiffs objected, and which objection the Court overruled. The ruling, however, could not possibly have injured the plaintiffs, since the record fails to show that any such question ever was, in fact, asked or answered by the witness. The witness subsequently testified, “ that on one occasion he carried the chain and assisted in making a survey on the Joint Stock Company’s ground, and that he had suggested the name of ‘ Joint Stock Company ’ for the claim.” This was responsive to the questions of counsel for defendants, already referred to, respecting the knowledge of the witness in the matter of the location by the Joint Stock Company, and was proper.
The only other point made for the appellants which we deem it necessary to notice, is, that the defendants are concluded by the lines of the claim as shown in the records of the minina: district. As already stated, the District Recorder, in recording the notice filed by Sweetland, Bieknell, and others, in 1859, omitted, by mistake, one of the lines. Several witnesses for the defendants testified that all of the ground in dispute was embraced within the locations under which the latter claim, and plaintiff
We do not think the defendants are bound by the mistake of the Becorder in copying the notice in the book of records. (Kelly v. Taylor, 23 Cal. 11; Weeks on Mineral Lands, § 104.)
There was testimony given at the trial tending to show that all the steps required by the local rules and regulations were performed by the locators making the locations under which the defendants claim; that the lines were distinctly marked upon the ground, a ditch dug and kept open, stakes stuck, and notices posted. This was sufficient to impart actual notice to all comers. No one could have been injured by the mistake of the Becorder, and we think the judgment and order should be affirmed. So ordered.
McKinstry, J., and McKee, J., concurred.