Green v. Gavin

BURNETT, J.

The action is to quiet title and the vital question in the ease involves the validity of a mining location made by respondents. The facts are substantially without controversy and may be stated as follows: On February 12, 1905, the respondents discovered mineral in paying quantities on the claim in dispute, and on the following day posted a notice of location on a tree plainly visible thought to be on or near the west line of the claim, but which a subsequent survey showed to be some two hundred and eighty-eight feet west of said line. An identical copy of this notice was recorded in the county recorder’s office on the twenty-third day of February, 1905. These two instruments were in proper form, were signed by the locators, witnessed by one George Adams, and dated February 13, 1905. On this latter date respondents went around the claim, placed stakes at what they believed to be the four corners, marked trees and brushed out the lines, so that the boundaries could be readily traced, and immediately began the work of development of the mine which had not ceased at the time of the trial of the action. On the twenty-ninth day of February, 1905, one of the respondents posted near a trail on the easterly side and actually on the claim an additional notice sufficient in all respects and exactly like the first notice, with the single exception that it did not contain the name of Adams as a witness. On the nineteenth day of December, 1905, while respondents were in possession of the claim and engaged in developing it, appellants, with knowledge of the foregoing facts, posted on the same claim their notice of location, and, as respondents would not yield possession, this action was begun.

[508]

The claim is located in what is known as the “Brushy Mining District” in the county of Placer, and it was stipulated that the custom of miners in said district at all the times mentioned required the posting of a location notice upon the mining ground claimed or attempted to be located, and recording of a copy thereof with the county recorder of the county. It does not appear from the stipulation in what order these acts were required to be performed, but there was evidence to the effect—and it would seem natural and reasonable to conclude—that the practice was first to post and afterward to record the notice. But in the ease at bar, we consider this circumstance entirely immaterial, as all the acts required for a valid location of a mining claim had been performed by respondents long before appellants entered upon the ground, and the aforesaid departure from the usual order of procedure was absolutely without prejudice to anyone and could not inure to the benefit of the subsequent locators.