Du Prat v. James

Myrick, J. This is an action to recover possession of a mining claim in Tuolumne County. The action was commenced in April, 1881, by J. J. Du Prat as plaintiff; he having died after the judgment in the court below, his executrix was substituted. For convenience, the deceased is herein spoken of as plaintiff.

The judgment was in favor of defendants. On this appedi, on behalf of plaintiff, points are made as follows: —

First—Defendants having entered on an actual possession of plaintiff, their entry can give them no right as against him.

The facts in this regard, as found by the court, are substantially as follows: The plaintiff and his predecessors in interest had, from 1863 down, worked the mine, and had expended, in [556]sinking shafts and mining tunnels, over nine thousand dollars, and were in the possession of the mine from its location down to the time of the entry of defendants. In the years 1875, 1876, 1877, 1878, and 1879, plaintiff caused the requisite amount of labor, under the Act of Congress (Rev. Stats. U. S. § 2324), to be performed; but in the year 1880 plaintiff caused but nine dollars’ worth of work to be performed on the claim. On the 1st day of January, 1881, the defendants James and McCartea, entered peaceably and in good .faith upon the premises in controversy, for the purpose of locating a mining claim, and located a portion of said premises by posting notices and erecting monuments, which location was distinctly marked on the ground, so that its boundaries could be readily traced. On the 5th day of January, 1881, the written notices of location having been defaced by rains, the defendants James and Mc-Cartea renewed the notices and reset the stakes at the corners, and built stone mounds around the same at the corners thereof. On said first day of January said defendants above named went into the possession of the claim located by them, and have ever since so remained, and have been continuously at work thereon, and expended about one thousand dollars in each of the years 1881 and 1882. On the 5th of January, 1881, the defendants Ellis and Sutton entered peaceably and in good faith upon the mine in question for the purpose of locating a mining claim, and located a claim embracing a portion of the premises in controversy, and posted notices and drove stakes and erected monuments, and distinctly marked the location on the ground, so that its boundaries could be readily traced. On the same day said defendants went into possession of the ground claimed by them, and were in the actual and exclusive possession thereof during the years 1881 and 1882, and performed labor in and upon their said claim in 1881 to the value of three hundred dollars; in the year 1882 they performed the amount of labor thereon required by the Act of Congress of May 10, 1872.