Tweedy v. Parsons

THOMPSON, J.

Plaintiffs commenced this action to establish their right to the possession of certain placer mining

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ground then in the actual possession of the defendants and to enjoin defendants from interfering with plaintiffs’ use and occupation thereof. The judgment decreed that plaintiffs had no right, title or interest in the real property; that the injunction

pendente lite

theretofore issued be dissolved and that defendants and cross-complainants Fisher, Wheeler and Sandsbury, who were actually working the property until forced to desist by the injunction, recover $1,000 damages. The plaintiffs prosecute this appeal from the judgment.

The respondents Parsons and Hatfield, on July 1, 1929, made, posted and recorded a single notice of location of the Hettie Mae and Hettie Mae Extension placer mining claims, describing them by metes and bounds and as containing 40 acres. The locators monumented the ground and brushed out the lines so that the boundaries could be readily traced and be referable to a natural and permanent object, namely, “Hungry Mouth Creek”. The defendants Fisher, Wheeler and Sandsbury, under a working agreement with the locators, entered upon the ground and thereafter resided thereon while performing work in the development of the ground as placer mining claims. It was stipulated that the respondents actually possessed the claims and that Fisher, Wheeler and Sandsbury lived upon and worked them from June 3 to August 19, 1930, and were stopped on August 27, 1930, by service of the injunction heretofore mentioned. Amended notices of location filed by defendants Parsons and Hatfield in October, 1931, Avere admitted in evidence for the sole purpose of shoAving the ground claimed and worked by defendants.

On August 19, 1930, appellants Tweedy and wife and one Perry Denmire, who subsequently conveyed to Tweedy, sought to initiate a placer location of 50 acres, called the Defiance claim, and TAveedy, alone, at the same time sought to initiate the Defender claim of 20 acres. The claims were located with reference to legal subdivisions and included the ground covered by the Hettie Mae and Hettie Mae Extension claims.

The appellants’ theory is that at the time the locations of the Hettie Mae and Hettie Mae Extension were made on July 1, 1929, the land Avas not open public land subject to location because in 1928 assessment work had been done