Strang v. Ryan

46 Cal. 33 | Cal. | 1873

By the Court, Crockett, J.:

This is an action to recover the possession of an undivided interest of three tenths in certain mining ground situate at Cherokee Flat, in Butte County. The plaintiff claims that on the 2d day of May, 1858, he and nine other persons located, according to the mining laws then in force in that district, ten mining claims, including the ground in controversy; and that the location so made has been kept good ever since by a compliance with the requirements of the mining laws and regulations of that district. Since the original location he has acquired the rights of two others of the locators, and, therefore, claims to be entitled to three tenths of the ground. The local mining laws then in force in that district provided that a notice describing the boundaries should be posted on the premises, and should be recorded in the office of the District Recorder. This ground was what is termed “deep diggings,” and in respect to that class of mining ground the local laws provided that after the posting and recording of the notice the record would hold the claim good from the first day of November in each year until the first day of the succeeding May; but that from the first of May to the first of November in each year the ground must be worked one day in every five, if there was sufficient water; and, if not, the claim might be preserved by a notice posted on the ground, and to be renewed every ten days. But, in case of a failure to work the claim or renew the notices, as above stated, the claim was to be considered as abandoned. It appears from the proofs and findings that the original notice was posted and recorded on the 2d day of May, 1858; but no work was done on the ground until the Fall of that year, when a shaft was sunk and the boundaries were marked out by several blazed trees and a pile of rocks. On the 1st of November, 1858, the record ,of the claim was renewed, after which nothing was thereafter done to preserve the location, uníess the acts performed by the defendants and others under their location of February 21st, 1859, shall be held to have inured to the benefit of the original locators, and thus preserved their claim. At the last named date, the defendants Ryan and Bresnan, together with nine other persons, seven of whom were original locators under the notice of May 2d, 1858, posted a notice on the premises, claiming the ground for mining purposes; which notice was duly recorded. From this notice, the names of the plaintiff Strang, Ragget, and Kennedy, three of the original locators, were omitted, and the names of William Ryan, Bresnan, John Lynch, and Michael Ryan were inserted, none of whom were original locators; and the Court finds that the three omitted names were left out without authority, and without the consent of said persons. Without determining whether this notice inured to the benefit of the three persons whose names were omitted, it will be assumed for the purposes of this decision that it had precisely the same legal effect as though their names had been inserted. There was evidence tending to prove that during the Spring of 1859 a small amount of work was done upon the claim by the defendant Ryan, and in the Spring of 1860 a shaft was sunk to the depth of forty feet. During that year, and up to March, 1861, considerable work was done by the company, at which time the work was discontinued by the company as such, but it was agreed that any member might work the claim on his own account and for his own benefit. In pursuance of this authority, several of the original locators, and also the defendant Ryan, as the Court finds, worked the claim up to the Fall of 1863. But on the 1st day of December, 1861, a new code of mining laws went into effect in that district, which repealed and superseded the former laws. By the new law it was provided that all claims shall be recorded by the Recorder of ‘‘this mining district on the first day of June and December of each year; provided, that after the first record a renewal of the same shall be sufficient; and all claims not so recorded or renewed within ten days after the said first day of June and December of each year, the same shall be considered abandoned,” No provision is made for the working of the claim as a condition for preserving the location. All that is required is that the claim shall be recorded and renewed as above provided; and the Court finds that “the claims were kept alive and held from the 10th day of December, 1863, to the 9th day of December, 1869, by renewing and recording the same in the office of the Mining Recorder for said district, in accordance with the mining laws of said district. ” But there is nothing either in the findings or the evidence tending to show that the record of the claim was renewed at any time between the 1st day of December, 1861, when the new laws took effect, and the 10th day of December, 1863. It is clear, therefore, that whatever rights were acquired either under the notice of May 2d, 1858, or under that of February 21st, 1859, were lost by a failure to renew the record between December 1st, 1861, and December 10th, 1863. It results that if either of the parties have any right to the ground under the local mining law, it must have been acquired in virtue of the proceedings had on and subsequent e 10th day of December, 1863, on which day the defendant Ryan caused to be recorded in the office of the District Recorder a notice in the following words:

“December 10th, 1863, Wm. Ryan orders the following renewal. This is the Irish Co: Notice—We, the undersigned, claim ten mining claims on Sawmill Ravine, commencing at this notice, on a pine tree, running a northeasterly direction five hundred feet, and running north from this notice two hundred feet, running into Sugar Loaf Mountain five hundred feet, and from thence to the center of the Sugar Loaf Mountain, and five hundred feet along the ravine and the south line by Gregory’s old cabin; and we claim an outlet from said claims, Cherokee Flat.

(Signed:) “JAMES LYNCH, three claims;

“WILLIAM RYAN, two claims;

“JOHN EVERETT, two claims;

“MICHAEL BRESNAN, one claim;

“JOHN TUHEY, one claim;

“JOHN O’KEEF, one claim.”

This was evidently intended as a renewal of the old notice, and not as an original location. It is expressly declared on its face to be a renewal, and the mining law then in force provided that ‘‘no miner shall be entitled to hold more than one claim by location or preemption at the same time.” If it was effectual as a renewal for any purpose after the claim had lapsed by reason of a failure to renew the record for the preceding two years, it was a renewal made by and for the benefit of those whose names are appended to it, only three of whom were original locators under the notice of May 2d, 1858. This renewal was made by Ryan, and several of the subsequent renewals by Bresnan, who were strangers to the location of May 2d, 1858, and in nowise in privity with the plaintiff or those under whom he claims. They were in no sense the agents of the original locators, or any of them, in causing the renewals to be made, but were acting for themselves and their associates, whose names were appended to the notice of December 10th, 1863. In authorizing a renewal of the record as a method of preserving a location, the local mining law contemplated a renewal to be made by the parties in interest, or their privies, and not by a stranger, and particularly by one claiming in hostility to them. If, therefore, the renewal of December 10th, 1863, and those subsequently made, were operative for any purpose, they inured to the benefit of those who authorized or caused them to be made, and not to the benefit of the plaintiff or his grantors. It results from these views that the plaintiff failed at the trial to establish a title to any portion of the mining ground in controversy.

It is insisted, however, on behalf of the plaintiff, that we cannot review the evidence, for the reason that the statement on the motion for a new trial contains no sufficient specification of the particulars wherein the evidence does not justify the findings and judgment. But the first, second, third, fourth, sixth, seventh, eighth, and thirteenth specifications are certainly not obnoxions to this objection. Each of them specifies a particular fact found by the Court, which it is alleged was not supported by the evidence, and in respect to all the remaining specifications, each of them points to a separate, specific finding, confined to one or two facts, and avers that it was not justified by the evidence. We think this was a sufficient specification under section one hundred and ninety-five of the Practice Act.

Judgment reversed and cause remanded for a new trial.

Mr. Justice Belcher, being disqualified, did not participate in the decision.