Southern California Railway Co. v. O'Donnell

ALLEN, J.

Action to determine adverse interests in real property. Findings and judgment in favor of defendant as to certain of the premises described, from which plaintiff appeals, as well as from an order denying a new trial.

The claim of defendant to the property is based solely upon a lode mining location. The finding of the trial court that defendant, ever since the spring of 1883, was and has been the

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owner of and in possession of a specific portion of the disputed premises can only be taken as impliedly finding that the mineral location was actually made in 1883 as alleged; that the land was mineral in its character; that the claim was properly monumented; that the annual work was done thereon as provided by law and the mining regulations; and that the claim was not abandoned.

(Trevaskis

v.

Peard,

111 Cal. 603, [44 Pac. 246].) Evidence appears in the record tending to the support of each of such implied findings and to the general finding to the extent of the ground covered by the mineral location; and upon this appeal we must accept those facts as established.

The principal contention of appellant is that, notwithstanding the entry and location of defendant’s mine, under the act of Congress known as “the right-of-way act,” approved March 3,1875, the lands included in defendant’s location were not open to mineral location, but had been previously granted to plaintiff. The first section of the right-of-way act provides:

“That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state . . . which shall have-filed with the Secretary of the Interior a copy of its articles of incorporation, and due proof of its organization under the same, to the extent of one hundred feet of each side of the central line of said road. Also the right to take from the public lands adjacent to the line of said road, material, earth, stone and timber necessary for the construction of said railroad. Also ground adjacent to such right of way for station buildings, depots, machine-shops, sidetracks, turn-outs and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road.