Simmons v. McCarthy

CHIPMAN, C.

Action to quiet title. Defendant had judgment, from which and from the order denying plaintiffs motion for a new trial this appeal is prosecuted.

Plaintiff claims that on May 12, 1890, he entered into possession of the mining claim known as the Empire Bar Mine, in Siskiyou county, under a deed conveying the property to him, and that he “continuously continued in the occupation and possession of said property for upward of five years immediately preceding the commencement of the action, and he has continued in said occupation and possession up to the present time”; he claims also by virtue of open, notorious exclusive, and adverse and continuous possession and occupancy, but not founded

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on any written instrument; he also claims to be "the owner, subject alone to the paramount title of the United States, and in the possession and entitled to the possession of” the property in question. Defendant claims by right of prior possession and by a mining location.

The court found as facts that the mine was regularly taken up and located by certain persons, in 1882, as vacant public mineral land; that in that year defendant purchased an undivided interest in the land and immediately went into joint possession with his co-owners and worked the land with them, as a placer mine, "peaceably, openly, notoriously, exclusively, and under a claim of right and title, for each and every year after said year 1882 up to and including the year 1888,” expending each year thereon over one hundred dollars; that the said owners in the year 1888 leased the land to one Gott, who ■worked the claim during the years 1889, 1890, and 1891; that no labor was performed on the mine for the year 1892; that on March 1, 1893, "and before any location or attempted location of said mining claim had been made by any person, defendant entered upon said land for the purpose of resuming work thereon, and did resume work thereon, and continued diligently working upon said mine until the assessment work for the year 1893 was completed, and defendant has each year thereafter and up to the commencement of this action expended more than one hundred dollars in mining, labor and improvements on said lands”; that about March 15, 1893, “plaintiff entered upon said lands and marked out the boundaries of the same and posted a notice thereon, and caused a copy of said notice to be recorded”; that during the year 1894 he filed a notice of suspension of labor as required by law, and since the year 1894 he has, up to the commencement of the action, expended more than one hundred .dollars each year in mining, work, and labor on said land, hut that at the time he entered on said claim and marked the boundaries thereof, to wit, March 15, 1893, said lands were not unoccupied public mineral lands; and that plaintiff has not since March 1.2, 1890, “been in the continuous occupation or possession of said land, and was not in such possession or occupation for any continuous period of five years,” and has not “for any period of five years under claim of right