McCann v. McMillan

THE COURT

Plaintiffs brought this action to quiet their title to three mining claims known as the Compromise, Handy, and Sixteen to One, situate in Calico mining district, San Bernardino county. Findings and judgment were for the plaintiffs, and defendant Barkley appeals from the judgment and from an order denying his motion for a new trial. Defendant McMillan answered, disclaiming all interest in the property involved.

A general outline of some material facts is essential to a comprehension of the points in controversy.

Prior to January 1, 1896, H. B. Stevens and Eugenia D. Porter located certain mining claims covering the same ground now claimed by plaintiffs under locations made by themselves on January 1, 1897, the validity of which is the ultimate question here involved. Ho assessment work was performed by the prior locators during the year 1896 on any of the claims. On December 38, 1896, said Stevens and Porter sold and conveyed their said claims to the defendant McMillan. On December 30, 1896,

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McMillan and one C. E. Calm went upon said claims, and, as claimed by defendants, abandoned them, and afterward, upon the same day and the next, relocated them for and in the name of defendant Barkley. Plaintiffs made their alleged locations on the morning of January 1, 1897, assuming that the ground was then open to location.

Plaintiffs’ title is controverted by appellant on each of two principal grounds, which will be noticed in their order.

1. That the ground in controversy was not open to location by the plaintiffs, because of the locations made for defendant Barkley on December 30, 1896.

That the locations made prior to 1896, and which were conveyed by Stevens and Porter to McMillan on December 38, 1896, were at that time valid locations is not questioned; and, but for the alleged abandonment of them by McMillan on December 30th, would have continued to be valid until midnight of December 31st, when the ground would become forfeited and vacant because no assessment work was done for the year 1896. The court found that the ground was not vacant at the time the Barkley locations were made, but was vacant on January 1, 1897, when plaintiffs made their locations, and therefore found, in effect, that there was no abandonment of the claims by McMillan on December 30th, but that he forfeited them by failing to do the assessment work on them, which failure left them vacant on January 1, 1897.