Walsh v. Erwin

• Decision Date: 01 April 1902
• Docket Number: 12,206.
• Citation: 115 F. 531
• Parties: WALSH v. ERWIN.
• Court: U.S. District Court — Northern District of California

115 F. 531

WALSH v. ERWIN.

No. 12,206.

United States Circuit Court, N.D. California.

April 1, 1902

A. H Ricketts (S. C. Denson, of counsel), for complainant.

Goodwin & Webb and L. N. Peter, for respondent.

MORROW Circuit Judge.

This is a suit to determine the right of possession to certain placer mining ground in Plumas county, Cal., claimed by the complainant as the Cascade placer claim, and included in the respondent's application for United States patent upon the Castle Hill placer claim. The respective counsel have entered into a stipulation of facts herein, substantially as follows: The suit was instituted by James T. Walsh, a citizen of Minnesota, against James P. Welch, a citizen of California. Upon the death of the respondent, R. L. Erwin, as administrator of the estate of said Welch, and also a citizen of California, was, by proper proceedings, substituted as respondent herein. On or about May 14, 1877, one Frank Terry and seven associates, all citizens of the United States entered upon unoccupied public land, they having previously discovered mineral thereon, and posted upon said premises the following notice:

'Notice of Location.

'Notice is hereby given that we, the undersigned, having fulfilled the condition required by the mining laws of the United States and those of this district, and having complied with the usual customs in such matters, do each claim twenty acres of this ground for placer or gravel mining, being a total of one hundred and sixty acres. These claims shall be known as the Cascade Gravel Mining Company, and are situated on the northern side of Grizzly Mountain, in Plumas county,-- township, about three miles north of the Alturas mine, and are bounded and described as follows: Beginning at this notice, which is posted on a blazed tree, and running south three hundred feet to a stake; thence running west thirteen hundred and twenty feet to a stake; thence running north five thousand two hundred and eighty feet; thence running east thirteen hundred and twenty feet to a stake; thence running south four thousand nine hundred and eighty feet to this notice.

'Located this 14th day of May, 1877.

'Frank Terry. 'S. Galbreath. 'J. J. Swiggart. 'T. J Johnson. S. R. Dawson. M. J. Walsh. E. A. Heath. G. W Moreton.'

On the same day said Frank Terry and his associates blazed a pine tree, which stands 300 feet north of the southeast corner of the premises described in said notice, planted a stake at the southeast corner of said premises, planted another stake at the southwest corner of said premises, and still another stake at the northeast corner thereof, for the purpose of locating said premises as a placer claim. The above notice was duly recorded in the office of the county recorder on the 18th day of May, 1877, and on the 8th day of June, 1877, the said Terry and his associates made, executed, and delivered to the Cascade Water & Mining Company a deed of the following premises: 'The mining property known as the 'Cascade Gravel Mine' on the east side of Grizzly Mountain, and being 160 acres of ground,' situated in Plumas county, Cal. On the 20th day of March, 1896, the Cascade Water & Mining Company conveyed to the complainant herein 'all that real property situated in the county of Plumas, state of California, known as and commonly called the 'Cascade Mining Claim,' and all appurtenances, including water claim, water rights, ditches, and flumes '; being the same claims above referred to. This deed was ratified by the holders of more than two-thirds of the capital stock of said corporation, and was recorded on the 30th day of March, 1896. More than $100 worth of work, labor, and improvements have been done and performed by the successors in interest of the said Terry and his associates upon the premises here in dispute during each and every year since May 14, 1877, except for and during the year 1894, when a notice of intention to hold and work said claim was filed in the recorder's office, agreeably to the act of July 18, 1894, amending section 2324 of the Revised Statutes. The aggregate value of the work, labor, and improvements done and performed upon the said premises during the said time by said parties is of the value of more than $6,000. On April 12, 1894, one David R. Brown commenced an action in the superior court of said county against said Cascade Water & Mining Company, to foreclose a miner's lien for work done by him as a minor upon said premises, and on April 9, 1895, a judgment was rendered in his favor for the sum of $279.90. Thereafter, on May 4, 1895, the said mining ground was sold by the sheriff, in pursuance of an order of sale upon said judgment, to one A. E. Whitney, for the sum of $318.90, and the sheriff's certificate of sale delivered to said Whitney therefor, describing the premises sold as 'that certain lot of placer mining claims situated on or near Little Grizzly creek in section 1, township 24 north, range II east, Mt. Diablo meridian, county of Plumas Mining Claims,' and all appurtenances. ' Within six months from the date of said sale, on the 4th day of November, 1895, P. R. Walsh, as president of said Cascade Water & Mining Company, applied to the sheriff of said county to redeem said mining ground so sold as aforesaid. Thereupon the said sheriff, with the assistance of one U.S. Webb, and attorney at law, estimated the amount necessary to redeem said mining ground from said sale, by computing the interest on the sum of $279.80 recited in said judgment, at the rate of 2 per cent. per month from May 4, 1895, and then and there stated to said Walsh that the sum of $313.37 was the amount necessary to be paid for the purpose of redeeming said mining ground from said Whitney. Said Walsh, as president, and for and on behalf of said corporation, then and there paid to said sheriff the said sum of $313.37, and received from said sheriff the following certificate:

'State of California, County of Plumas-- ss.: I, J. S. Bransford, sheriff of the county of Plumas, state of California, do hereby certify that on the 4th day of November, A.D. 1895, the Cascade Water and Mining Company, a corporation, judgment debtor under the judgment in the action hereinafter mentioned, in due form of law tendered and paid to me the sum of $313.37, being in full payment of the purchase price paid by the purchaser at the sale of the real property hereinafter described, made by me on the 4th day of May, A.D. 1895, under the decree and foreclosure and sale issued to me out of the superior court of the county of Plumas, state of California, in the action of D. R. Brown vs. the Cascade Water and Mining Company, a corporation, et al., including two per cent. per month interest thereon, up to the time of redemption; that thereupon I received said sum of money so tendered and paid as aforesaid, and have granted and executed to said Cascade Water and Mining Company, a corporation, this my certificate of redemption of said property, in conformity with the statute in such case made and provided. The premises so redeemed or intended to be redeemed are described as follows, to wit: That certain lot of placer mineral claims situated on said near Little Grizzly creek, in section 11, in township No. 24 north, of range No. 11 east, Mount Diablo base and meridian; all in the county of Plumas, state of California,

...