People v. Dorr

BARNARD, P. J.

This is an action to obtain possession of Section 36, Twp. 14 N., Range 15 East, S. B. B.

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M., to eject the defendants and enjoin them from entering said lands or claiming ownership therein, and to recover for ores and minerals of the value of $6,000 alleged to have been removed therefrom.

The plaintiff claims title to this section under the act of Congress of March 3, 1853 (10 Stats, at L. 244), granting sections 16 and 36 in every township to the state for school purposes. The defendants claim to be the owners of four mining claims within this section, located before any survey of that section was made.

In January, 1920, J. M. Dorr located these four claims in his own name but for the benefit of his son J. O. Dorr. They have been in possession ever since and have performed the annual work required by the mining laws each and every year since that time. This section was first surveyed in May and June, 1924, the survey was approved on December 19, 1927, and accepted by the Department of the Interior on February 15, 1928. In 1939, Dorr leased these claims to certain other parties. After these lessees started to work the claims they discovered that they were on section 36, whereupon they obtained a lease from the state and brought suit to quiet title against Dorr. Judgment was entered quieting title in Dorr. The state then secured a patent for this section under the act of Congress of June 21, 1934 (43 U.S.C.A. § 871a). This patent was dated July 10, 1942, and recited that title had vested in the State of California under the act of March 3,1853, upon the acceptance of the plat or survey on February 15, 1928, and stated that it was given as evidence of the title which had vested in the state on February 15, 1928.

This action was brought on July 14,1942. The court found in all respects in favor of the defendants finding, among other

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things, that in January, 1920, the land covered by these four claims was open, unsurveyed and vacant mineral land of the United States, subject to entry under the mineral laws; that Dorr was a qualified entryman; that the four claims are contiguous end to end; that the land covered by said claims was and is mineral in character and not agricultural at all; that it was known to be mineral in character; that this ground had long been mined prior to its location by Dorr; that said mining operations were known to the entire community for many years prior to that location; that two brothers located this identical property in 1917, mined it successfully and marketed tungsten ore therefrom during World War I; that they abandoned these claims and told Dorr to locate the same, which he did; that in January, 1920, he made a rediscovery of mineral-bearing rock, tungsten in place, on each of these claims, sank the old shafts deeper and ran new tunnels; that he marked the boundaries of each claim so that it could be readily traced, with rock monuments at each corner and in the middle of each claim; that a separate and distinct rediscovery was made on each claim and a location notice was posted in a conspicuous place thereon, and that each of said notices so posted contained the facts required by the mining laws; that copies of said location notices were not recorded; that the ledge or lode that traverses these four claims lengthwise is conspicuous and can be readily followed for at least two miles; that at places it rises above the surface of the ground for more than 20 feet; that ever since January, 1920, all four of these claims have been enclosed by fences and the only means of access during the entire period has been through locked gates; that the annual assessment work and improvements have been performed each year since 1920 regardless of moratoriums; that between January, 1920, and February 15, 1928, the date of the acceptance of the official survey, more than $3,000 was expended in good faith on these claims by J. O. Dorr; that assays and shipments of ore made in 1917 and later show that there was ore in paying quantities; that the state applied for and received a patent in 1942 without notice to the defendants; that there is no evidence of any notice, hearing, contest or action whatever other than a certificate from the register of the local land office at Los Angeles to the effect that no claim appeared of record in that office ; that no contest or adverse proceeding as against the defen