49 P. 6 | Cal. | 1897
This is an action to quiet the plaintiff’s title to a quartz-mining claim, which is described by metes and bounds, and as being fifteen hundred feet long and six hundred feet wide, and called the “Starlight Quartz Mine.” The complaint is in the usual form, averring that the plaintiff is the owner and in possession of the said mine, and that the defendant claims some right, interest and estate therein, but that he has no such right, title, interest or estate whatsoever. The defendant by his answer, disclaims having any right, title, claim or interest in or to the land described in the complaint, except to so much thereof as is included within certain described boundaries, and called the “Northern Light Mine.” The boundaries mentioned are six courses, extending from a fixed starting point to the place of beginning, and having the following lengths: 268.6 feet, 956.3 feet, 263.3 feet, 249.5 feet, 995 feet, and 288.4 feet. He then denies that plaintiff is, or ever was, the owner, in the possession or entitled to the possession of any portion of the said Northern Light Mine; and avers that he is, and at all the times mentioned in the complaint was, the owner of, in the possession of, and entitled to the possession of, all that portion of the premises described in the complaint, which is included within the boundaries of the said Northern Light Mine. Wherefore he prays that plaintiff take nothing by his suit, and that he have judgment for his costs.
At the commencement of the trial, on demand of defendant, a jury was impaneled to try special issues, and the following questions were submitted, and answers returned: (1) “Which party (if either) was the first to discover a ledge, vein or lode bearing gold in the premises in question?” Answer: “Defendant.” (2) “Did the plaintiff and his co-locators discover a ledge, vein or lode bearing gold, within the limits of their claim, before making their location?” Answer: “Yes.” (3) “Did the defendant, Bell, at any time before February 28, 1895, mark his location on the ground so that its boundaries could be readily traced?” Answer: “No.” (4) “Did the defendant, Bell, prior to the location of plaintiff, • discover a ledge, vein or lode bearing gold within the limits of this claim?” Answer: “Yes.”
The land in controversy is public mineral land of the United States, and both parties' claim it under locations made by them, or attempted to be made, under and in accordance with the provisions of the United States statutes. No local rules or customs were shown to exist, and the principal question is, Was the defendant’s location, which was prior in time to plaintiff’s, sufficient to meet the requirements of the law? The statute provides, among other things, that “no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located” (U. S. Rev. Stats., sec. 2320); and also that: “The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim”: U. S. Rev. Stats., sec. 2324.
1. Appellant contends that the findings of the jury and court as to the discovery of the vein or lode by the plaintiff before making his location, and as to the failure of the defendant to distinctly mark his location on the ground so that its boundaries could be readily traced, were not justified by the evidence, and hence his motion for new trial should have been granted. Without reviewing and setting out the testimony bearing upon these questions, we deem it enough to say that the evidence introduced and relied upon by the plaintiff was, in our opinion, quite sufficient to justify and sustain the findings complained of. And, though this evidence conflicted with that introduced by defendant, the well-settled rule in such cases must control in this court. It should be noted, however, in this connection, that the notice of location posted and filed for record in the county recorder’s office by defendant was not so drawn as to afford any assistance to one' seeking to trace out the boundaries of the
2. Appellant further contends that during the progress of the trial the court committed several errors of law which were prejudicial to his side of the case. The first point made under this head is that the court erred in refusing to disregard the second finding of the jury, upon the ground that it was inconsistent with the first and fourth findings. Waiving the question whether, under the issues raised by the answer, the verdict of the jury was merely advisory to the court, and could be adopted or disregarded at its pleasure, or whether it could only be set aside on motion for new trial, still we fail to see any irreconcilable inconsistency in the findings referred to. The fact that defendant “was the first to discover a ledge, vein or lode bearing gold on the premises in question,” and that he made this discovery “prior to the location of plaintiff,” was not inconsistent with the fact that plaintiff and his eoloeators discovered “a ledge, vein or lode bearing gold within the limits of their claim before making their location.” Both parties may have discovered the same lode, but in different places; and the testimony tended to show that they did so discover it. Under the statute it can make no difference which party made the first discovery, so long as it was in fact made before plaintiff made his location. Besides, appellant was not aggrieved by the finding complained of, since, though he was the first to discover the lode, he failed to make a valid location thereon, and left it subject to location by any other competent person.
The next point is that the court erred in giving to the jury an instruction which reads as follows: “The jury are instructed by the court that the mining claim of the defendant, in order to be valid, must have been distinctly marked upon the ground so that its boundaries could be readily traced, on or before the twenty-eighth day of February, 1895. The law requires this marking of the claim upon the ground to be done in such a manner that any person of rea
The next point is that the court erred in overruling defendant’s objection to the introduction in evidence of a copy of plaintiff’s recorded notice of location, as a copy of the notice posted on the claim, upon the ground that the original should have been produced, or its loss or destruction shown. It was admitted by counsel for defendant that plaintiff’s location was properly staked out, and it was proved that the notice was posted on the claim, and recorded. The statute provided only as to what “all records of mining claims hereafter made shall contain,” and, as no local rules or customs were shown to exist, it was not necessary to introduce or prove the posted notice. It was proper, however, to prove the recorded notice, and for that purpose the copy was offered and received; and ifi this there was clearly no error.
The next point is that the court erred in admitting certain evidence offered by the plaintiff in rebuttal. The evidence objected to tended to contradict to some extent the evidence introduced by defendant to show his prior discovery of gold in the ledge or lode in controversy. We think the evidence offered was admissible in rebuttal, and that the objection to it was properly overruled.
The other points raised and discussed by counsel do not require special notice. The judgment and order appealed from should be affirmed.
We concur: Searls, C.; Britt, 0.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.