Talmadge v. St. John

HENSHAW, J.

This is an appeal by plaintiffs from an order of the court granting defendants’ motion for a new trial. The action was instituted by plaintiffs to recover possession of certain mineral land, for an injunction restraining defendants from extracting ores, and for damages. The following facts were disclosed without conflict in the evidence: On the tenth day of October, 1898, the defendant St. John and others, prospecting for precious metals upon the public domain of the United States, discovered gold bearing rock in place, and, with the purpose of appropriating the same, erected at the point of discovery a prominent and substantial stone monument more than three feet high and more than two feet in diameter at the base, and posted thereon their preliminary location notice claiming fifteen hundred feet in an easterly direction along the course of the lead, and three hundred feet on each side, naming the claim the “Bjue and the Gold Mine.” In their preliminary notice they gave the date of discovery, the date of the location, and the county in which the claim was located. This notice was properly signed, and on the twenty-sixth day of October, 1898, was recorded in the office of the county recorder of San Bernardino county. About two weeks later they constructed monu

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ments upon the boundaries of the claim, building a monument at each corner and at the center of each end line, placing notices in each monument stating what corner of the claim it marked. The monuments were substantially built of stone and were generally of the size of the one above given. In the discovery monument first constructed they placed their second notice, designated “Certificate of location—quartz claim. Second or completed notice.” This last notice gave the name of the claim, the names of the locators, the date of the discovery, and the fact that the notice was posted on the claim on the tenth day of October, 1898, as provided in section

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of an act of the legislature of the state of California, entitled “An act prescribing the manner of locating claims upon the public domain of the United States, recording notices of location thereof, amending defective locations,” etc. (Stats. 1897, p. 215.) This notice was sworn to by defendant A. C. St. John on the twenty-ninth day of November, 1898, and recorded on the same day in the records of San Bernardino county. The locators began their work on the claim on the twenty-seventh day of October, 1898, and worked from that time on continuously until the twenty-first day of January, 1899, when work ceased under an injunction issued by the superior court of San Bernardino county at the instance of these plaintiffs. On November 18, 1898, they had moved on to the claim and were living in a tent near their discovery monument. The value of the work performed by them prior to the issuance of the injunction was about two hundred and fifty dollars. On the twenty-seventh day of December, 1898, the locators were absent, having gone to Los Angeles to spend the holidays with their families. Their tools, tent, and bedding, however, still remained on the claim, and they left one A. H. Jennings, an employee, in charge of it. On that day the plaintiff, W. S. Talmadge, and O. M. Potts went upon the ground and made an asserted discovery of ore in place at the point where the defendants had been at work. They constructed a substantial monument on the dump made of ore which had been extracted by the defendants. They placed in it a preliminary location notice, which was recorded on the thirtieth day of December, 1898, in the records of San Bernardino county. At the time they built their monument and