Newbill v. Whitfield

Ross, J. The contest on this case is between the claimants of two certain mining claims called, respectively, the Red Jacket and Burning Moscow, situated in Grapevine Mining District, in the Calico Mountains of San Bernardino County. The action is ejectment—plaintiffs claiming the lode in question to be within the lines of the Red Jacket, and the defendants that it is a part of the Burning Moscow.

The fact is not disputed that the plaintiff Uewbill discovered the Red Jacket on the 26th day of March, 1881, whatever its lines may be held to be. On that day, in traversing the mountain, he discovered certain veins of rock running in a northwest-: erly and southeasterly direction, and containing minerals of value, and with the intention of locating a mining claim thereon pursuant to the laws of the United States, and of the local customs and rules of the district, he placed a discovery stake in the ground near the vein, with a written notice signed by him, claiming three hundred feet on each side of the ledge, and running five hundred feet southeasterly and one thousand feet northwesterly along the vein, and stating in the notice that he claimed twenty days within which to mark the boundaries and record his claim — the time claimed being the time allowed by the local rules and custom of the district for that purpose. A few days afterward, and before the 11th day of April, 1881, Newbill again went upon his claim, named it Red Jacket, and commenced to mark its boundaries. For the purposes of our decision we shall assume—what is strenuously denied by the appellants — that the evidence sustains the finding of the court below to the effect that at that time he (Uewbill) “ erected a stone monument about five hundred feet southeasterly from the discovery stake [83]and notice afoi’csaid, with a written notice thereon marked south- ' eastern end of Red Jacket, and at the same time erected another similar stone monument about three feet northerly from the last named monument, and put a written notice thereon, marked northeast corner of Red Jacket.” ■

Owing to sickness, Newbill was obliged to suspend work, and did not do anything further at that time in locating or marking the boundaries. Continuing sick he agreed with his co-plaintiffs —Wallace, Parks, and Ferrell—that they should go upon the ground and complete the location and marking of the boundaries of the claim, in consideration of which they were to have an undivided half of it. Accordingly, on the 12th of April, 1881, Wallace, Parks, and Ferrell went upon the ground and marked out the boundaries of the Red Jacket claim, not, however, in precise accordance with the discovery notice put up by Newbill on the 26th of March, nor in accordance with the subsequent monuments put up by him, and marked as the southeastern end and the northeastern corner of the Red Jacket, but they marked the boundaries so as to extend about six hundred feet along the vein northwesterly, and about nine hundred feet southeasterly from the discovery stake and notice, with a width of a little less than three hundred feet on each side of the vein, and including the discovery stake and notice. Such boundaries were marked by erecting a rock monument at each corner, and at the middle of each end, and at the middle of the north or northeast side line, and placing written notices on each corner monument marked respectively: Northeast corner Red Jacket, northwest corner Red Jacket, southwest corner Red Jacket, and southeast corner Red Jacket, and on the southeast center end monument was placed a written notice of which the following is a copy: —