County of Kern v. Lee

HAYNES, C.

This action was brought by the county of Kern against Charles A. Lee, the county recorder of said county, and the sureties on his official bond, to recover eight hundred and twenty-eight dollars and sixty cents alleged to have been received by said recorder for recording notices of mining locations and proofs of labor thereon, between the first day of July, 1899, and the commencement of this action, viz., October 3, 1899, the complaint further alleging that he had retained and appropriated the same to his own use.

[362]

The defendants demurred upon the ground that the complaint did not state a cause of action, the demurrer was overruled, and, the defendants declining to answer, judgment was entered against them, and they appeal.

Appellants contend that between the dates covered by the complaint there was no law either authorizing or requiring notices of mining locations, or proofs of the performance of work thereon, to be recorded, and therefore the recording of them was voluntary and no part of the recorder’s official duty. If this be true, the demurrer should have been sustained under the authority of

San Bernardino County v. Davidson,

112 Cal. 503, cited by appellants.

The state mining law of 1897 required notices of mining locations and proofs of the performance of labor to be recorded in the county recorder’s office, and declared that no record of a mining claim or millsite thereafter made in the office of the recorder of a mining district should be valid. (Stats. 1897, sec. 7, p. 214.)

On 'March 30, 1899, the act of 1897 was repealed, and the repealing act was given immediate effect. (Stats. 1899, p. 148.)

The act of 1897 prescribed what .the preliminary notice of location and the certificate of location should respectively state, and after the repeal of that act we had no state law prescribing what a notice of location should contain1. It has, however, from the inception of mining in this state been the common practice of the locators of mines to make written notices of locations, and this was recognized by the subsequent act of Congress (U. S. Rev. Stats., sec. 2324) permitting miners of a district to make regulations governing, among other things, the “manner of recording” their claims; but it is true the act of Congress did not in terms make the recording of location notices compulsory, and it has been repeatedly held that in the absence of a state or district requirement, the failure to record notices of location does not affect the validity of the location.