Holdt v. Hazard

[442]

SHAW, J.

This is an action- to recover possession of three certain mining claims from which it is alleged plaintiffs were ousted by defendants. Judgment went for plaintiffs, from which, and an order denying their motion for a new trial, defendants prosecute this appeal.

The complaint alleges that on November 16, 1906, and at the time of instituting the suit, plaintiffs, who were partners for the purpose of working the same, were the owners, in possession of, and entitled to the possession of, three certain mining claims situated in section 33, township 28 south, range 11 east, Mount Diablo meridian, San Luis Obispo county, each of which claims was six hundred feet in width by fifteen hundred feet in length, bounded and marked by certain stakes and monuments thereon, which said claims were known as “Crown Copper and Silver Claim,” “Black Horse Copper and Silver Claim” and “Saddlerock Silver and Copper Claim”; that, while plaintiffs were such owners, so possessed, and entitled to the possession thereof, defendants did, on November 16, 1906, wrongfully and unlawfully enter thereupon and did oust and eject plaintiffs, and since said date have unlawfully withheld possession thereof. The answer is a general denial.

The findings attacked by appellants upon specifications of insufficiency of evidence to support the same are, in effect: That each of said plaintiffs was a citizen of the United States ; that they agreed to hold and work said claims as joint owners and partners therein; that at the time of making said locations plaintiffs discovered ore in place in ledges upon each of said claims, which ore so found justified plaintiffs in believing that the claims contained mineral in paying quantities; that at the time plaintiffs made their locations the lands were unoccupied and part of the public domain; that on September 2, 1906, plaintiffs, in accordance with the provisions of chapter VI, title 32, of the Revised Statutes of the United States, [U. S. Comp. Stats. 1901, pp. 1422-1442], posted a notice upon each of said claims, particularly describing the same and the boundaries thereof, together with the names of the locators; that on September 3 and 4, 1906, plaintiffs, by stakes and monuments, marked the boundaries of each of said claims, so “that a person unfamiliar with said lands could readily have found all of said stakes and said mounds and could