Графични страници
PDF файл
ePub

So far as the action is for the recovery of the indebtedness evidenced by the promissory note and mortgage, the cause of action accrued, according to the allegation of the complaint, two years after November 26, 1890. When this action was commenced, December 8, 1899, more than seven years had elapsed after the cause of action accrued, and no facts are alleged in the complaint sufficient to avoid the effect of the running without action commenced of the time prescribed in this section.

Plaintiff relies upon certain facts alleged in the complaint as sufficient to defeat this objection. Substantially these facts are as follows: The property described in the mortgage was acquired by said minors under the provision of the will of their father. He had incumbered a portion thereof with a mortgage, which was a valid and subsisting lien thereon at the time of his death. Subsequent to his death this mortgage was foreclosed, and a sale of the premises had under the foreclosure decree. It was to redeem the property from such sale that the $1,000, for which the note and mortgage in suit were given, was borrowed from plaintiff, and the money was in fact used for that purpose. The money was borrowed by the guardian and the note and mortgage were given without any order of authorization therefor on the part of the superior court having jurisdiction of the guardianship proceed

validity of his mortgage than he would have been in had his mortgage been valid and there had been no mistake. As has been heretofore pointed out by this court in similar cases, this is not an action for relief upon the ground of mistake within the meaning of subdivision 4, § 338, Code Civ. Proc., but is substantially one to compel payment of the indebtedness evidenced by the note and mortgage executed by the guardian to plaintiff. The case is very similar to that of Clausen v. Meister, 93 Cal. 555, 29 Pac. 232, where the complaint alleged that a loan was made and the note and mortgage taken by reason of certain fraudulent representations that the maker was the owner of the mortgaged property, whereas in fact she was only the executrix of the will of the deceased owner, and entitled upon distribution to only one-fourth of the property. The money there loaned was used to pay a claim against the estate, thus benefiting all those interested in the property under the deceased. Within three years after the discovery of the facts, but more than four years after the maturity of his note and mortgage, the plaintiff brought his action for the amount due, and sought to be subrogated to the rights of the creditor of the estate whose claim had been paid with his money. This court there said: "The real cause of action is for the recovery of the money loaned by

ings. The guardian represented to plaintiff plaintiff, and the other relief demanded is

that as such guardian she had authority to execute the note and mortgage, and that such mortgage would be a valid lien on the minors' property, and it was the inten tion of both guardian and plaintiff that plaintiff should have a valid lien thereby. Both the guardian and plaintiff believed that the mortgage was good and valid, and their mistake in that regard was not discovered until within three years prior to the commencement of this action. We see nothing In these facts that can assist plaintiff. Plaintiff's theory apparently is that this is an action for relief on the ground of mistake, and that, therefore, under subdivision 4, 8 338, Code Civ. Proc., he had three years after his discovery of the facts constituting the mistake within which to commence his action. It will be observed that the discovery by plaintiff as to the invalidity of his mortgage was not made until after the statute would have barred it, had it been a valid mortgage. We are at a loss to understand how plaintiff can be placed in any better position by reason of his mistake as to the

but incidental to this, and the time allowed by the statute within which to commence an action for the recovery of this money cannot be extended by alleging the discovery, within three years, of facts which in equity would have entitled him to look for its repayment to other security than the mortgage which accompanied the note received by him at the time of the loan." See, also, Campbell v. Campbell, 133 Cal. 33, 65 Pac. 134. Whatever rights in equity this plaintiff may have originally had by reason of the facts alleged, such rights were available only to aid in the enforcement of the claim evidenced by the note and mortgage, and, when the bar of the statute attached to that claim, such incidental equitable rights were lost. Clausen v. Meister, supra.

The demurrer to the complaint should have been sustained.

The judgment is reversed.

We concur: BEATTY, C. J.; SHAW, J.; MCFARLAND, J.; HENSHAW, J.; SLOSS, J.

(149 Cal. 603)

MUTCHMOR v. MCCARTY. (Sac. 1,404.) (Supreme Court of California. Aug. 27, 1906.) 1. MINES AND MINERALS-LODE CLAIM-LO

CATION-NOTICE-RECORD-EFFECT.

The record of a notice of location of a lode claim, as required by St. 1875-76, p. 853, c. 562, is only effective to prove the bare fact of the record of such notice, and is not evidence that the notice was posted on the claim, that the location was so marked on the ground that its boundaries could be readily traced, that they included the apex of a lode, the existence of any valuable mineral deposit in place, or that the necessary assessment work had been done, all of which were essential to the validity of the location.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 50.]

2. SAME--VALIDITY-DESCRIPTION.

Where a notice of location of a lode claim. failed to contain a description of the claim by reference to a natural object or permanent monument by which it could be identified, as required by Rev. St. U. S. § 2324 [U. S. Comp. St. 1901. p. 1426], it was ineffective for any purpose.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 45, 46.] 3. SAME VALIDITY OF LOCATION RELOCATION.

-

Where plaintiff's alleged lode claims were mostly relocations of abandoned claims, and plaintiff failed to show actual possession prior to the commencement of the action, the doing of the requisite assessment work, or that there existed within the described boundaries of any of the claims a vein or deposit of ore sufficiently valuable to pay the cost of extraction or the cost of reduction, the claims were invalid.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 63.]

4. SAME-VEIN WITHIN PLACER CLAIM-LOCATION OF LODE CLAIM AFTER PATENT FOR PLACER CLAIM.

Under Rev. St. U. S. § 2319 et seq. [U. S. Comp. St. 1901, p. 1424] providing for the disposition of lode or vein mining claims and placer deposits, a vein known to exist within the boundaries of a placer claim at the date of an application for a patent, and not included in the application, may be located by an adverse claimant after the issuance of the patent. 5. SAME.

Rev. St. U. S. § 2333 [U. S. Comp. St. 1901. p. 1433] provides that where a vein or lode is known to exist within the boundaries of a placer claim, an application for a patent for the placer claim which does not include an application for the vein or lode ciaim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim, but where the existence of the vein or lode is not known, a patent for the placer claim shall convey all the minerals within its boundaries. Held, that a lode claim is known to exist within a placer location within such section when its existence is known to the placer claimant, when its existence is generally known, or when any examination of the ground, sufficient to enable the placer claimant to make oath that it is subject to location as such. would necessarily disclose the existence of the vein.

6. SAME-QUARTZ VEIN-VALUE.

A quartz vein which contains so small a portion of gold, silver, etc., as to be of no value for mining purposes, is not a known vein, within Rev. St. U. S. § 2333 [U. S. Comp. St. 1901, p. 1433] providing for the disposition of mining claims.

7. WITNESSES-ADVERSE WITNESSES-DISCRE

TION.

The trial court has power in its discretion to grant or refuse plaintiff permission to make defendant his own witness.

Department 2. Appeal from Superior Court Calaveras County; A. I. McSorley, Judge.

Action by T. W. Mutchmor against J. D. McCarty. From a judgment in favor of defendant, and from an order denying plaintiff's motion for a new trial, he appeals. Affirmed.

W. J. Donovan, for appellant. Solinsky & Wehe, for respondent.

BEATTY, C. J. This is an action to quiet plaintiff's alleged title to nine separate quartz mining claims or lode locations, described by their respective names and by reference to the notices of location recorded in the office of the recorder of Calaveras county. The complaint contains the allegations usual in such cases. The defendant, by his answer, denies that the plaintiff is, or ever was, owner, in possession, or entitled to the possession, of any of said claims, or of any interest therein. He admits that he claims an interest and estate in all the real property described in the complaint, but denies that his claim is without right. He alleges that for more than 10 years last past he and his grantors have been the owners, and in the actual possession, of two placer mining claims held under patent from the United States-the Carson Hill, containing 146.50 acres, patented on the 18th of October, 1894, and the Blue Mountain, containing 151.26 acres, patented February 1, 1898-and also a certain quartz mining claim. He further alleges that for more than 20 years he and his grantors have been the owners, and in the actual possession, of 480 acres of agricultural land, contiguous to the Carson Hill and Blue Mountain placer claims, which is also held under patents issued to his grantors by the United States. He alleges that he is informed and believes that the real property described in the complaint conflicts with said placer mining claims and agricultural patents. The action was commenced in December, 1902, and was tried by the court without a jury in November, 1903. The court found that the plaintiff was not, and had never been, the owner, or entitled to the possession, of any part of the property described in his complaint, and that the defendant was the owner and entitled to the possession of all the property described in his answer. Judgment was entered accordingly in favor of the defendant for his costs. The appeal of plaintiff is from the judgment, and from an order denying a new trial.

Aside from one specification of error in the ruling of the court upon an objection to a question asked defendant on his cross-examination, the only point urged by appellant

in support of his appeal is that the findings are contrary to the evidence in this: that the evidence showed a valid location of one of his claims (the Emerald) prior to any application for a patent for either of defendant's placer claims, and because all of his other claims, though located subsequent to the applications for the placer patents, were of mineral veins known to exist by the placer claimants prior to the date of their said applications, but not mentioned therein or in the patents, and which, therefore, remained open to appropriation by any qualified locator. This question of the right to locate a lode claim within the surface lines of a patented placer claim has been very fully argued by counsel for the respective parties, but it is extremely doubtful whether, in view of the evidence contained in the record, a decision upon the point is necessary to a final disposition of the case. For it does not appear that the first finding of the court to the effect that the plaintiff was not the owner of any interest in any of the claims described in his complaint was based upon the view that they were invalid only because the attempted locations were within the boundaries of the placer patents, and upon veins the existence of which was unknown at the time the patents were applied for. It may be that the court deemed the evidence offered by plaintiff insufficient to establish the validity of any of his alleged claims, irrespective of the objections based upon their conflict with the placer patents. As to the Emerald claim, the alleged location of which antedated the applications for patents, this must have been the ground of the decision, as it may have been with respect to the others, and, therefore, we have first to consider whether we should be warranted in holding that the evidence was such as to require a finding by the trial judge that the Emerald, or any of the other alleged claims, was valid in itself as a location, and whether the plaintiff made satisfactory proof that he was, when he commenced this action, even in the peaceable possession of any of the ground in controversy. It appears from the evidence that the Carson Hill and Blue Mountain placer claims are situated in what is known as the "Madane Felix Mining District" in Calaveras county and not far from Copperopolis, where active mining has been carried on for many years; that within the limits and in the neighborhood of those claims are numerous small veins or seams of quartz carrying an extremely small percentage of gold where not entirely barren. These little veins crop out at a number of places, and their existence has long been generally known. It was shown that as long ago as 1879 there were old prospecting shafts on some of these veins, which had remained untouched from that date until the date of the trial, from which it may be inferred that various lode claims had been located, prospected, and abandoned within

and near these placer claims prior to the attempted location of the Emerald in June, 1890. A notice of this claim was recorded on the 18th of that month by one Kennedy in pursuance of a special act of the Legislature applicable to Calaveras county, requir ing all notices of mining locations to be recorded in the county recorder's office. St. 1875-76, p. 853, c. 562. But this notice was invalid under the act of Congress (Rev. St. § 2324 [U. S. Comp. St. 1901, p. 1426]), for the reason that it contained no description of the claim by reference to any natural object or permanent monument by which it might be identified. And, besides, if it had contained every essential requisite of a location notice, the copy of the record would have proved nothing except the bare fact that such a notice had been recorded. It would not have proved that it was posted on the claim, or that the location was so marked on the ground that its boundaries could be readily traced, or that they included the apex of a lode, or any valuable mineral deposit in place, or that the necessary work had been done to keep the claim good. Every one of these things, with the possible exception of the posting of the notice, was essential to the validity of the claim, but it is difficult to find in the record any satisfactory evidence upon a single point. Kennedy was himself a witness, but he only testified that he had prospected "all these claims and found gold-bearing quartz." and that when he was working on the Emerald prior to the application for the placer patents, October 22, 1892, the defendant woul come to his claim to inquire as to his prospects and get him to pan out some dirt, and when he did so "allowed he had as good a prospect as was on the hill." This is in substance the whole of his testimony as to his own claim. One of the other witnessses, Womble, testified generally that all of the claims in controversy that had been located prior to 1894 (which would include the Emerald) were so marked by mounds that he and a surveyor had no difficulty in finding the corners of the claims. He also testified that a man named Watson worked on the Emerald in 1893, and that Kennedy sunk a shaft on it in 1894. This is all the testimony I can find in the record bearing on the validity of the Emerald claim, and it is clearly insufficient to show that it was of any validity whatever at the commencement of this action. Aside from other objections there is no evidence that $100 worth of work was done on the claim in any year after its attempted location, and there is no evidence that any work has ever been done on it since the year 1894, or that either Kennedy or the plaintiff was in actual possession of the claim or of any part of it when this action was commenced.

All the other claims of plaintiff are of a date subsequent to the 22d of October, 1892, when the placer patents were applied for.

The

The notices were recorded and purport to have been posted as follows: Santa Cruz in July, 1893; Buena Vista in October, 1893; Democrat in October, 1894; Dandy in January, 1897; Cape Horn in January, 1899; Big Bonanza in January, 1900; Dead Men's Spring in January, 1900; Duplex in January, 1900. Several of these claims are relocations of old and abandoned claims. The Democrat was Originally the Dead Cow, and by that name was prospected and abandoned, apparently, by the defendant prior to October, 1892. Dandy was formerly the Bald Eagle. The Cape Horn was another of the defendant's old and abandoned locations. The Duplex was formerly the Opranso. There is no evilence of sufficient work to keep good a single one of these claims, and no evidence of actual possession of any part of any of them by plaintiff or a co-tenant at the commencement of this action, and as to those located subsequent to 1894 there is no evidence of a proper marking of the locations by visible monuments on the ground. There is no evidence of the existence within the described boundaries of any of them of a vein or deposit of ore of any practical value. Kennedy, it is true, testifies that he found gold-bearing quartz in all of them, but this would be true although none of the quartz carried gold enough to pay the cost of extraction or the cost of reduction. On the other hand, a witness for defendant, E. Boggs, a miner and practical assayer, testifies that in 1888 or 1889 he spent 10 days prospecting in the neighborhood of the claim then owned by the defendant and called the Dead Cow (now the Democrat) and could find no one that would assay $1 a ton-the best came from the Dead Cow and assayed only 80 cents. From the positive testimony of this witness, from the silence of plaintiff's witnesses as to the quality of the ore found in the small veins of quartz appearing within the limits of the placer patents, from the failure to prove assessment work on any of plaintiff's elaims, and from the general agreement of all the testimony in the case that, although the ground covered by these claims lies within a short distance from a busy mining amp, and has been prospected for more than 30 years, during which time many claims have been located and abandoned after the Isual tests by the sinking of shafts, etc., the court was entirely justified in concluding, if it did so conclude, that there was no vein or deposit of ore within any one of the claims dsecribed in the complaint of sufficient value or promise to justify its location as a lode claim, and, further, to conclude that the failure to prove that the work required by the act of Congress had been done on the claims was due to the fact that such work had not been done and that the claims, if ever valid, had been abandoned before the action was commenced. If the finding of the court against plaintiff's claim of ownorship had no other support, it would be

presumed that it was based upon this view, and we should be compelled to sustain it for the reasons stated. And this finding fully supports the judgment of dismissal, and is unaffected by the ruling of the court restricting the cross-examination of the defendant above referred to.

But if it were conceded that, as to one or more of the eight claims of plaintiff attempted to be located subsequent to the applications of the placer patents, there was satisfactory and uncontradicted evidence of full compliance with the federal statutes and local regulations governing the location and working of mining claims, this finding of the court would, even in that case, have abundant evidence to support it. The issuance by the government of its patents for the Carson Hill and Blue Mountain claims to the grantors of defendant is conclusive evidence in this proceeding that the land patented is placer ground, and that defendant, from the date of the applications for patents, has been the owner of everything within its surface boundaries excepting only such veins of ore or mineral deposits in place as were known to exist at the date of such applications, subject of course to the right of owners of exterior lode claims to follow their veins on the dip under the surface. As to the agricultural lands described in the answer, and which are held under homestead patents, defendant is the absolute owner under a title long antedating the location of any of plaintiff's claims, and, as far as they may conflict with those lands, there can be, and in fact is, no controversy. The sole question, therefore, with respect to those claims of plaintiff which are here assumed to have been regularly located and perfected subsequent to the 22d of October, 1892, is whether there was uncontradicted evidence from which the court should have found that they cover veins or mineral deposits in place which, within the meaning of section 2333 of the Revised Statutes [U. S. Comp. St. 1901, p. 1433], were known to

exist at that date.

The Revised Statutes of the United States (section 2319 et seq. [U. S. Comp. St. 1901. p. 1424]) provide for the disposition alike of lodes or veins, and of placer deposits. The price of lode claims is $5 per acre of the surface while that of placer claims is only $2.50. It is therefore a fraud for a person cognizant of the existence of a vein of apparent value to attempt to acquire the title by means of a placer location and patent. It is accordingly provided by section 2333 that "where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this

403, 12 Sup. Ct. 543, 36 L. Ed. 201; Lindley on Mines, § 781 and cases cited. In this case it does appear that the Emerald, the Dead Cow (now the Democrat), the Cape Horn, and perhaps other veins, were known to the defendant several years before his grantors applied for the placer patents. It is reasonably certain that their existence was, prior to that date, generally known, and known to defendant's grantors. On this point we think the plaintiff's case was clearly proved, and without substantial conflict in the testimony. But upon another point essential to his case there was a failure of proof. A quartz vein which contains so small a percentage of gold, silver, etc., as to be of no value for mining purposes is not a known vein within the meaning of the law, and whether it is of any practical value is always a question for the jury (or in the absence of a jury for the court). Iron S. M. Co. v. Mike & Star, supra; Migeon v. Montana Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. 156, and cases therein cited. In this case there was not only a failure on the part of plaintiff to prove that any of the veins claimed by him could ever be expected to pay the cost of extracting the ore, but there was, on the contrary, a preponderance of evidence that, at the date of the application for the placer patents, they were generally regarded as valueless, and have since proven to be so. Upon this ground, therefore, if upon no other, the finding against plaintiff's claim of ownership is clearly supported by the evidence.

chapter, including such vein or lode, upon | Iron S. M. Co. v. Mike & Star Co., 143 U. S. the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known a patent for the placer claim shall convey all the valuable mineral and other deposits within the boundaries thereof." The patents for the Carson IIill and Blue Mountain claims contain express reservations in conformity with these provisions, as follows: "(1) That the grant hereby made is restricted in its exterior limits to the boundaries of the said mining premises, and to any veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, which may have been discovered within said limits subsequent to and which were not known to exist on the 22d day of October, A. D. one thousand eight hundred and ninety-two. (2) That should any vein or lode of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits be claimed or known to exist within the above-described premises at said lastnamed date, the same is expressly excepted and excluded from these presents." There are other reservations in the patents, but they are immaterial to the present discussion.

The decisions of the Supreme Court of the United States and of other courts of high authority, both state and federal, have settled the construction of this provision of the Revised Statutes, and of these reservations in placer patents as applied to a great variety of cases, and especially as they apply to this case. A vein known to exist within the boundaries of a placer claim at the date of the application for patent, and not included in the application, may be located by an adverse claimant after the issuance of the patent, and a vein is known to exist within the meaning of the statute (1) when it is known to the placer claimant; (2) when its existence is generally known; (3) when any examination of the ground sufficient to enable the placer claimant to make oath that it is subject to location, as such would necessarily disclose the existence of the vein.

The questions asked by plaintiff's attorney on cross-examination of defendant, to which objections were sustained by the court, were clearly not proper as cross-examination, and the ruling of the court was correct. The real complaint of the plaintiff respecting this matter seems to be that he was not allowed to make the defendant his own witness. This the court had the right, in its discretion, to allow or to refuse, and we think its discretion was not abused in refusing to hear further evidence on the point to which the questions were directed. They related exclusively to defendant's knowledge of the existence of quartz veins within the boundaries of the placer claims prior to the application for patents. That fact had already been satisfactorily shown, but was immaterial for two reasons: First, because it was not his knowledge, but that of his grantors, and of the miners generally, that was important; and, second. because it had been shown that the veins were of no value, and not within the meaning of the law.

The judgment and order of the superior court are affirmed.

We concur: MCFARLAND, J.; HENSHAW, J.

« ПредишнаНапред »