119 P. 86

WALLACE GALBREATH, Respondent, v. MANUEL S. SIMAS and CANDIDO ROSE, Appellants.

Sac. No. 1884.Supreme Court of California, Department Two.
November 8, 1911.

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APPEAL from a judgment of the Superior Court of Siskiyou County and from an order refusing a new trial. James F. Lodge, Judge.

The facts are stated in the opinion of the court.

Taylor Tebbe, and James D. Fairchild, for Appellants.

C.J. Luttrell, and L.F. Coburn, for Respondent.

MELVIN, J.

Plaintiff sued to quiet his title as against defendants to a certain placer mining claim known as the “Smugler” and to restrain said defendants from cutting wood or making excavations on said property. Judgment was rendered in favor of plaintiff. From this judgment and from an order denying their motion for a new trial the defendants appeal.

The court found that the Smugler claim was a valid mining location made in accordance with the statutes of the United States and that it covered a large part of the territory to which defendants asserted title and known as the Blue Jay

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placer mine; that the alleged title of defendants under deed from one Gallagher who had located the Blue Jay in December, 1905, was invalid as against plaintiff who located the Smugler claim in December, 1908, because neither Gallagher nor his successors in interest had performed the required assessment work on the Blue Jay claim; and that the land covered by the Smugler claim was open to location when Galbreath located thereon in December, 1908.

The main contention of appellants is that the findings are not supported by the evidence. They maintain: 1. That Gallagher’s citizenship at the time he located the Blue Jay placer claim was clearly proven; 2. That the proper amount of assessment work was done by Gallagher in 1907; and, that 3. More than one hundred dollars’ worth of work was done on the property by Gallagher or those in privity with him during the year 1908 and before the twenty-ninth day of December of that year.

Upon the first point little discussion is necessary because the other two questions were determined adversely to defendants upon conflicting testimony. Gallagher was permitted to testify fully with reference to the years he had spent in the United States, his naturalization, the fact of his registration in California in 1908 by presentation of a certified copy of his naturalization papers to the county clerk of the county in which he lived and of his participation in elections ever since. Whether or not this was the best evidence need not be considered here, for it seems to have been introduced without objection. Respondent concedes that it was sufficient if believed to justify the jury in the conclusion that Gallagher was a citizen, but calls the attention of the court to the impeachment of Gallagher as a witness which, he asserts, was so complete that probably nothing which Gallagher said was accepted as verity by the jurors.

Regarding the work done on the Blue Jay claim in 1907 and 1908, the evidence, as we have said before, was conflicting. Gallagher himself testified that in the year 1907 he performed more than one hundred dollars’ worth of work, giving in detail the items of labor. He was contradicted by other witnesses in regard to the details of the work which, according to his statement, was performed by him during that year. David Ream testified that no work was done on the Blue Jay in

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1907; Zoll contradicted Gallagher with reference to the alleged removal by ground sluicing of a quantity of earth twenty-four feet long, nine feet wide and three feet thick, from the Blue Jay claim. Gallagher stated that he was accustomed to go by way of a certain shaft on the property into a tunnel where there was water and that he frequently performed work in said tunnel, but according to the witness Ream there was no connection between the shaft and the tunnel; the tunnel itself was on the Hawkins claim and not within the lines of the Blue Jay at all; and there was no water in said tunnel. Similar testimony was given by witness LeMay. There were certain other contradictions of Gallagher’s testimony which need not be considered here in detail. It is sufficient to say that they were of enough importance to justify the jury in finding against the defendants with reference to the value of the work performed upon the claim in 1907.

Appellants do not say that Gallagher performed one hundred dollars’ worth of work on the Blue Jay claim in 1908, but they do most positively assert that they, as the equitable owners of the property, put work upon it as the representatives of Gallagher to an amount greatly in excess of one hundred dollars. They say that there was an oral agreement between themselves and Gallagher which amounted to a lease with the privilege of purchasing, the understanding being that appellants were to do the requisite amount of work which was to apply on the price to be paid for the property. The Blue Jay claim was adjacent to the patented claim which was called by all the witnesses the “Hawkins.” This was the property of the appellants. The Blue Jay was on higher ground than the Hawkins. In 1908 the appellants built a reservoir which was partly on the land covered by the Blue Jay claim and dug a ditch through that territory for a distance of more than eight hundred feet. Respondent contends in opposition to this that appellants had no contract with Gallagher; that the work done on the Blue Jay was not for the benefit of that claim, but merely to get a better head of water for mining operations on the so-called Hawkins claim; and that the jury was justified in the conclusion that the work performed by appellants in 1908 on the Blue Jay was of a value less than one hundred dollars.

One witness testified that while Rose was at work on the

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reservoir he was asked if he was not working on Gallagher’s land. He replied with an uncomplimentary reference to Gallagher who, he said, claimed “the whole country” but did not work on anything. Witness LeMay told while on the stand of a conversation which he had had with Gallagher in October, 1908, wherein Gallagher admitted in effect that his assessment work had not been done and made no reference to any contract to sell his property; but the most important evidence offered by plaintiff to show that no contract existed for the sale of the property by Gallagher to the appellants, was that which indicates that a line was run between the Hawkins and the Smugler claims by a surveyor who had been engaged for that purpose, establishing the boundaries between these claims to the satisfaction of the parties hereto. The surveyor Nolan testified that appellant Simas, respondent Galbreath, and Ream (who claimed an interest in the Smugler with Galbreath) were present when he ran the line and were satisfied with it. He was corroborated by both Ream and Galbreath, the last named witness also testifying that appellant Rose suggested the employment of the surveyor and agreed to pay half the expense of establishing the line between the two claims. It seems hardly credible that, if Simas and Rose were the equitable owners of the Blue Jay, they would have thus recognized Galbreath’s rights in the Smugler which included practically the same territory as the Blue Jay and at a time long subsequent to the performance by them of the work which as they asserted at the trial had been done for the purpose of perfecting Gallagher’s title. There is also much force in the position of respondent that the work of Rose and Simas was for the benefit of the Hawkins claim. Much of the Blue Jay is up hill from the reservoir, ditch, and penstock which were constructed by appellants and the water could be advantageously used on a small part only of that claim.

Upon the subject of the value of the improvements constructed by appellants in 1908 there was a wide diversity of testimony. Both Rose and Perry testified that the reservoir was seventy feet long and from twenty-five to thirty-five feet deep and that the ditch was approximately six hundred feet long, twenty inches in width and twenty inches in depth. The cost of the ditch and the dam they asserted was two hundred dollars. Appellants’ witness Graves, a civil engineer, estimated

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that the dam constructed by them contained 48.6 cubic yards of earth. Ream testified that the dam could be built for forty dollars and the ditch for twenty-five dollars. Witnesses LeMay, Mathewson, and Utne, all experienced men in such matters, made estimates somewhat lower. It will thus be seen that there was a distinct conflict of evidence upon the subject of the value of work done by the appellants in 1908 and we cannot say that the jury was not justified in concluding that the improvements made that year were worth less than one hundred dollars.

There is no merit in appellants’ contention that no evidence was offered by Galbreath of the posting of his original notice of location and the recordation of a copy thereof. Galbreath and one other witness testified to these facts.

On the cross-examination of Galbreath he was asked if Ream had not previously located the Smugler claim and an objection to the question was sustained. This ruling was proper, but even if it had been erroneous it was cured by subsequent testimony that Ream had been a former claimant and had forfeited his right to the property long before any of the transactions connected with this case occurred. Ream was also permitted, over an objection, to testify how one of the corners of the Hawkins claim was marked according to his observation made at the time Mr. Nolan was running the line between the Hawkins and Smugler claims. If this was error we cannot see how appellants could possibly have been harmed by it.

Appellants complain that Gallagher’s answer to a question on direct examination was stricken out. He had answered in the affirmative the question: “Are you the locator of this claim?” On cross-examination, however, he was compelled to answer the question: “How did you happen to locate this claim that had been located and held by Dave Ream and others?” Even conceding that the rulings of the court on these two matters were not consistent we cannot say how appellants were prejudiced for subsequently Gallagher testified fully regarding all his acts with reference to the location of the Blue Jay.

Appellants also complain of an instruction in which the jury was told that respondent did not have to wait until January 1, 1909, before relocating the claim unless the assessment work

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had been fully performed in 1907. The language criticised is not properly subject to objection when taken in connection with the preceding portion of the instruction which was in part as follows: “If you find that the defendants did construct the reservoir in Stewart Gulch, and did construct the ditch testified to in the year 1908, under an agreement with Gallagher to do his assessment work upon the Blue Jay claim, but that such work was not of the value of $100.00, and that they did not continue to, in good faith, complete such assessment work but on the contrary did cease work on or about the month of November, then I charge you that the plaintiff had the right to go upon said land and locate it on or about the 29th day of December, of that year.” By this instruction the jury was told that if a proper amount of assessment work was not performed in either 1907 or 1908, respondent did not have to wait until the expiration of the latter year before relocating the claim. Applied to the facts of the case we find no error in the instruction. By another instruction the jurors were told that only citizens or those who had properly declared their intention of becoming such citizens, can locate mining claims upon vacant unappropriated public land of the United States, and that if a person not a citizen go through the form of locating a claim and selling it to others, he has nothing to sell and the buyers acquire nothing by the purchase. The instruction then proceeds as follows: “If, therefore, you find that defendants hold the ground in dispute herein by virtue of a sale from P.J. Gallagher, who held it by a pretended location, but who was not a citizen of the United States at the time he made such pretended location, then I charge you that the defendants have no title whatever to said premises and you must find for the plaintiff.” Appellants contend that by this language the jurors were told that Gallagher’s location was a pretended one and that this was an instruction upon a matter of fact. A reading of the quoted language in view of that which immediately precedes it entirely destroys this argument. The jury was instructed that Gallagher’s claim was a “pretended one” only in the event of their finding that he was not a citizen of the United States. There was nothing misleading in the instruction.

The judgment and order are affirmed.

Henshaw, J., and Lorigan, J., concurred.

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