Russell v. Brosseau

California Supreme Court Sep 17, 1884 No. No. 8,847Published

Before: Morrison

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Holding. The court held that the plaintiff failed to comply with federal mining laws requiring annual labor on mining claims, rendering the claims subject to relocation by the defendants. Consequently, the trial court's judgment in favor of the plaintiff was reversed and the case remanded for a new trial.

Issues

Whether the trial court erred in allowing a witness who could not read or write to testify to the contents of a written notice of location.
Whether the failure of the plaintiff to perform the annual labor required by section 2324 of the Revised Statutes of the United States rendered the mining claims subject to relocation by the defendants.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The work, in the act prescribed, must be done, or the claim is open to location in the same manner as if never located at all, unless work is resumed before the second location is made.”

“On the evidence now before us, the defendants were entitled to a judgment; but there may be facts in the case which were not before the court, and under the circumstances it is proper to reverse the judgment and order”

Synopsis

Evidence—Written Instrument—Hearsay.—A witness who cannot read or write is incompetent to testify to the contents of a lost instrument. Declarations of the contents of such instrument made to the witness are hearsay, and should not be received in evidence.

Mining Claims — Failure to Pebfobh Wobk—Relocation.—Under the provisions of section 2324 of the Revised Statutes of the United States, a mining claim upon which the work required by the act has not been done is open to relocation as if no location had ever been made, unless the original locators or their successors have resumed work prior to the relocation.

Morrison, C. J. In the opening brief of appellants may be found the following correct statement of the case we ar.e considering:—

“This action was brought under section 738 of the Code of Civil Procedure to determine the adverse claim of appellants to one undivided half of a mining claim called the ' Gray Eagle Claim/ and five eighths (§) of another claim called the 'Paris Mountain Claim, adjoining the Gray Eagle Claim.’

“In his complaint the respondent (plaintiff in the court below) alleged that he was the owner of and in possession of said undivided parts of said mining claims, and 'that the [606]defendants and each of them claim an estate or interest in the same undivided one half of said Gray Eagle Mining Claim, owned and possessed by plaintiff as aforesaid, and also in the same undivided five eighths of said Paris Mountain Company’s mining ground, owned and possessed by plaintiff as aforesaid,’ and 'that the said claim of defendants, and each of them, is adverse to plaintiff’s estate therein, and is without any right whatever, and that said defendants have no estate, right, title, or interest whatever therein.’

''By an amendment to his complaint the plaintiff alleged, in effect, that defendants were estopped from denying plaintiff’s alleged title to said one half of the 'Gray Eagle Claim’ by a former judgment of the same court, in which Peter Russell and others were plaintiffs, and Brosseau and Joubert were defendants, rendered June 15, 1881, said former action being of the same nature as this, to determine the adverse claim of defendants to the same undivided half of the Gray Eagle Claim.

“The answer for the defendants denies that plaintiff ever had any title to or possession of any portion of the mining ground described in his complaint. Admits a former judgment in favor of plaintiff for one half of the Gray Eagle Claim, rendered on the 3d day of June, 1881, but not later. Alleges that plaintiff lost and forfeited any right he ever had in or to said mining claim by failure to comply with the local miners’ laws.

“ And further alleges that defendants lawfully located and appropriated all the mining ground in dispute on the 10th day of June, 1881, the same then being unoccupied mineral land of the United States, subject to such location. i

“ The case was tried by the court without a jury. The findings and judgment were in favor of plaintiff, for all he demanded in his complaint.

Russell v. Brosseau

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