Betts v. Stephenson

BARNARD, P. J.

This is an action to quiet the plaintiff’s title to a group of unpatented mining claims. The defendants moved for a nonsuit on the grounds that the evidence did not show that these claims were open and unappropriated government land at the time in question; that the evidence disclosed that the discovery work was insufficient under section 2304 of the Public Resources

Code;

and that the locations were null and void under section 2307 of that code. In considering the motion the court stated that there was so far a failure of proof under section 2304, and offered the plaintiff an opportunity to “supply the necessary proof.” The • plaintiff’s counsel replied “I cannot enlarge on the discovery work.” The court thereupon granted the motion, and a judgment of dismissal was entered. A motion for a new trial was denied and the plaintiff has appealed from the judgment.

The history of these claims, as disclosed by the evidence, runs back to 1907. The respondents and their predecessors had been in possession for many years under various locations, an immense amount of work had been done, and a large amount of ore removed. There were several tunnels on the property, one of them some 600 feet long, and four or five buildings had been erected. The appellant had worked on the property at various times. During 1939 he operated it under a lease from the respondent Brennan, removing more than 15 tons of ore from the existing tunnels in the last half of that year. Late in December, 1939, and before his lease expired on January 5, 1940, he tried to sell the property to one Kettering. Brennan refused to sell on the terms offered by this buyer and some bad feeling developed during which Brennan ordered the appellant to stay away from the property. About that time, in a suit filed against him by another party, the appellant swore that these claims belonged to the respondent Brennan.

In August, 1941, the appellant went to the property, with two helpers, and attempted to relocate the property for him

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self. Within 60 days thereafter he did some work, making surface cuts, but he admits that this work was not sufficient to meet the requirement of section 2304 of the Public Resources Code. He did no further work until this action was tried in 1949, although he filed annual notices of suspension of work under the moratorium statutes. The appellant testified: “Brennan threatened to kill me through Kettering, why I have stayed away from the property, and we just dropped it, until I took a notion I would file suit and get the property.”