62 Cal. 160, 8,673, Belcher Consol. Gold Mining Co. v. Deferrari

Docket Nº:8,673
Citation:62 Cal. 160
Opinion Judge:McKINSTRY, Judge
Attorney:Street & Street, for Appellants. Edwin A. Rodgers, for Respondent.
Judge Panel:JUDGES: McKinstry, J. McKee and Ross, JJ., concurred.
Case Date:November 23, 1882
Court:Supreme Court of California

Page 160

62 Cal. 160




No. 8,673

Supreme Court of California

November 23, 1882

Page 161

Appeal from a judgment for the plaintiff, in the Superior Court of Tuolumne County.


Street & Street, for Appellants.

The Court failed to find on all the material issues of the case, in omitting to find on the issue of damages. The judgment, as it now stands, could not be pleaded in bar to a further suit by plaintiff against defendants to recover the damages alleged to have been sustained by reason of the acts of defendants. (Glascock v. Ashman , 52 Cal. 420; Morenhaut v. Wilson, id. 263; Watson v. Cornell, id. 91; Phipps v. Harlan , 53 id. 87; Baggs v. Smith, id. 88; Shaw v. Wandesforde, id. 300; Taylor v. Reynolds, id. 686; Paulson v. Nunan , 54 id. 123; Byrnes v. Claffey, id. 155; Du Prat v. James , 10 P. C. L. J. 102.)

The first requisite for holding the possession of mining lands belonging to the Government of the United States is a location, which shall comply with the requirements of Section 2324 of the United States Revised Statutes. The Court below has not found that the plaintiff, or its grantor, made any location, valid or otherwise, of the mining claims in controversy. As far as the finding shows, the deed from the defendants and others, is the only title to the right of possession which plaintiff has to these mining claims. Defendants are not estopped from denying the title of plaintiff to the portion of those mines conveyed to it by its other grantors. The defendants aver in their answer, " that the said mining claims, prior to August 1, 1881, were a part of the public domain and belonged to the United States Government, and were open to location by citizens of the United States." There is no finding whatever upon this affirmative matter set up in the answer, which, constituting a valid defense, should have been found on. (Swift v. Canavan , 52 Cal. 417.) Upon these facts as found, appellants are entitled to judgment. (Hilliard on New Trials, 104, § 12.)

Plaintiff did not make such a resumption of labor in the month of January, 1881, upon these mining claims, as would relieve them from the forfeiture of the year 1880. If the expenditure of twenty-four dollars in labor for the month of January, and no further labor done, during the first six months of the year, after the forfeiture of 1880, is a sufficient resumption, and saves a completeforfeiture of these mining claims, then they may be held from year to year, with the expenditure of only twenty-four dollars upon them, or even less. Appellants hold, that a resumption of labor, in good faith, upon a mining claim, should be by an expenditure, for labor and improvements, sufficient to make up the balance of the deficiency for the former year, and also begin the assessment work for the incoming year.


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