65 P. 1091

YREKA MINING AND MILLING COMPANY, Respondent, v. LUKE KNIGHT, Appellant.

Sac. No. 804.Supreme Court of California, Department One.
August 6, 1901.

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APPEAL from a judgment of the Superior Court of Siskiyou County and from an order denying a new trial. J.S. Beard, Judge.

The facts are stated in the opinion.

Warren Taylor, for Appellant.

O’Neill Butler, for Respondent.

CHIPMAN, C.

Injunction. Plaintiff alleges in its complaint that it is, and for six years last past has been, the owner in possession, and entitled to the possession, of certain three quartz-mining claims situated in Siskiyou County, — to wit, The Ada, Flora Blanche, and Ohio; that the mines are contiguous, extending in the same direction, forming one continuous mining claim, four thousand five hundred feet in length and six hundred feet in width, all containing valuable quartz rock bearing gold; that on January 2, 1899, defendant wrongfully entered upon a part of the Ada and a part of the Flora Blanche claims, and made excavations, carried away, and converted to his own use a large amount of valuable ore, and that he threatens to continue to remove ores from said mines. Defendant denies the averments of the complaint, and alleges that he entered upon the lands, January 2, 1899, “with the intention to take up and locate a portion thereof as a mine, and

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did stake out and mark said land,” and “ever since said second day of January, 1899, has been the owner and entitled to the possession of said mining land, . . . . known as the Mary Ann Quartz Mine.” A jury was called, and certain twenty-five specific questions were submitted to and passed upon by them, and all were answered in favor of plaintiff. Thereupon the court made its conclusions of law: 1. That plaintiff is the owner and entitled to the possession, subject to the paramount title of the United States, of all lands embraced within the boundaries of the claims set forth in plaintiff’s complaint; 2. That defendant’s location is invalid and void, “for the reason that the same was not subject to location”; 3. That plaintiff is entitled to a decree enjoining defendant from entering upon the land embraced within the boundaries of plaintiff’s said claim. Judgment was accordingly entered, from which and from the order denying his motion for a new trial defendant appeals.

It appeared that on January 29, 1892, written notices of location of the three claims in question — to wit, The Ada, Flora Blanche, and Ohio — were filed in the recorder’s office, in the order named, by W.P. Sheffield, John Travers, and Harvey Ax, respectively, and said claims at that time had thereon a vein of gold-bearing quartz, in place; that these locations, as a whole, constituted a relocation of what had theretofore been known as the Klamath Quartz Mine, and were contiguous, as alleged in the complaint; that a local custom, which had been in force over seven years, required that in making locations “a notice be posted on the location, and also a copy recorded in the office of the county recorder”; that plaintiff deraigned title from those locators, and expended, in 1898, on the Ohio, $400, and on the Flora Blanche, $150, in work and improvements; that “on January 1, 1899, and prior to the time at which defendant claims to have located the Mary Ann Quartz Mine, plaintiff had resumed work and continued the same thereafter uninterruptedly and until the full amount of $300 had been expended as assessment-work for the year 1898.”

The foregoing facts mainly found by the jury, are not challenged, and stand as admitted. The jury found that John Travers distinctly marked upon the ground his location of the Flora Blanche. “in such manner as that its boundaries could be readily traced.” The jury were asked

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that if they found as above, then to find whether the markings “were made according to the calls in his notice of location, which has been introduced in evidence, in whole or in part; and if in part only, then what part.” The jury answered: “1. Yes; 2. In part; 3. On the southwest end center line and S.W. corner and N.W. corner.” Similarly, the jury found as to the Ada, that Sheffield’s location was by him distinctly marked, and “in such manner as that its boundaries could be readily traced”; and that such markings were, in part, according to the calls of the written location; namely, “On the N.E. end center line and S.W. corner.” Likewise it was found that the Ohio was distinctly traced on the ground by Harvey Ax, and that his location was marked according to the written location in part by “N.E. end center line and N.W. corner.”

We think there was sufficient evidence to support the verdict. The locations were made in 1892, and notices, copies of which were introduced in evidence, contained such specific calls and references to monuments that a surveyor would have no difficulty in locating the boundaries, with knowledge of the location of these monuments testified to by the witnesses. It is true, the witnesses with the location notices in their hands were at the time unable to find all of the particular monuments referred to in the notices, but it does not follow from that fact that the monuments were never placed there or that the boundaries of the locations could not be ascertained. These notices were filed in 1892, and in six years many changes might take place along the boundary lines, which would account for the witnesses not being able to discover all the particular monuments referred to. It is true, as claimed by appellant, that it would be insufficient marking of boundaries of a mining claim to place thereon only such monuments as were found by the witnesses, and make no other markings of boundaries. The question here is not dependent alone on the evidence as to particular monuments which were found; notices were filed as early as 1892, claiming ground theretofore well known as the Klamath Mines; these notices were accessible, and presumably were known to defendant, and with them, as we have said, the boundaries could be traced, for they were so specific in their directions, that, with the monuments testified to being found, the boundaries could be defined. The jury found that the claims had been marked out by the

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locators so that the boundaries could be readily traced, and it is urged that there was no evidence to support such finding. There was no evidence of this fact, except the location notices and the discovery of the monuments, already referred to. The locators were not called as witnesses, nor was any person called who assisted in making the locations. The jury must have reached the conclusion that the locators in fact did what the evidence showed they might have done, — i, e., they found that the notices of location definitely described the boundaries, and that sufficient monuments were found, corresponding with those mentioned in the notices, to enable these boundaries to be traced at this time, and hence concluded that the locators originally marked the boundaries so as that they might be readily traced. Plaintiff was in possession under title deraigned from these locators. As against a relocation by a person having knowledge of the former locations, and of plaintiff’s possession as successor in interest, there was evidence sufficient prima facie to support the verdict. Defendant went into possession and made his relocation, not because there had never been a valid location, but, as he himself testified, because he thought the claims had been abandoned, and were open to location, and because no work had been done on the claims for the year 1898.

The jury found that plaintiff, at the commencement of the suit, February 13, 1899, was in possession, and for six years prior thereto it and its predecessors had been in possession.

Plaintiff’s right to possession was evidenced by deeds from the original locators, and their grantees to plaintiff, and there was evidence of actual possession in 1897 and in 1898. This was sufficient, as against defendant.

The remaining question relates to the finding that there was “$400 worth of work done on the Ohio claim, $150 on the Flora Blanche, being $550 in all for the benefit of all three claims,” for the year of 1898. There was no work done on the Ada that year. Plaintiff claims that the work done on the Ohio and Flora Blanche was for the benefit of the group. It was held in De Noon v. Morrison, 83 Cal. 163, following St. Louis Smelting Co. v. Kemp, 104 U.S. 654, that “as a matter of law, the plaintiff had the right to do the work necessary for the protection of both claims, or one of them, both being held by her in common.” It was

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further held, that it is for the jury to determine, as a question of fact, whether the work done on one of two contiguous claims owned by the same person is for the benefit of both claims. (See also Altoona Quicksilver M. Co. v. Integral Quicksilver M. Co., 114 Cal. 100.) There was evidence tending to show that the work consisted of running a tunnel, stoping from it on both sides, building ore-chutes, tracks, blacksmith-shop, and a house, and getting out timbers, amounting in value to nearly one thousand dollars, and that the amount of work done was about equal on these two claims. The tunnel was run partly on the Ohio and partly on the Flora Blanche, at a point near the dividing line of the two claims, and about the center, or along the ledge. The superintendent testified that the work was intended to develop the whole group of mines, and he gave his reasons for beliving that the work tended to develop the Ada. There was some evidence corroborative of this testimony. Defendant introduced witnesses who testified, in effect, that the work done could not, in their opinion, be of the slightest benefit to the Ada claim, nor in any way tend to develop it. The jury might well have taken this view of the evidence, but we cannot say that the evidence was insufficient to warrant the conclusion to which the jury came. The evidence on the point was in conflict, and under the well-settled rule we cannot interfere with the verdict.

It is advised that the judgment and order be affirmed.

Gray, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

Garoutte, J., Harrison, J., Van Dyke, J.

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