Garthe v. Hart

Hayne, C. — Action of ejectment for a mining claim. Verdict and judgment for plaintiff. Defendants appeal.

1. The plaintiff gave evidence tending to show a location in 1881, and a subsequent location in 1884, the marking of the boundaries under these locations, and the recórding of both claims. The statement does not show that one hundred dollars’ worth of work was done each year, as required by the act of 1872; but this defect in the evidence is not referred to in the specifications.

The defendants gave evidence tending to show a valid [542]location in 1880, the recording of the claim as required by a local regulation, the marking of sufficient boundaries, and the performance of the requisite amount of work each year. There is no evidence in contradiction of this. And if it be-assumed that the plaintiffs proceedings were regular in all respects, it is manifest that the defendants had the earlier and better right. Where the first location is valid, and the parties have kept it so by doing what is required by the mining laws, a subsequent location, however regular in form, is of no effect. (Belk v. Meagher, 104 U. S. 284; Rose v. Richmond Co., 17 Nev. 56, 57.) The verdict is therefore unsupported by the evidence.

2. The plaintiff gave evidence of an attempted location in 1879, and of acts tending to show a possession within the rule laid down in several cases. (See English v. Johnson, 17 Cal. 109; S. C., 76 Am. Dec. 574; Table Mountain Co. v. Stranahan, 20 Cal. 199; Hess v. Winder, 30 Cal. 349.) The court “struck out all evidence of this first location, for the reason that it appeared that the same had not been made in compliance with law.” It does not clearly appear whether this order was in reference to the “location” merely, or whether it extended to the possession also. But we think the order was in refence to the location, because the non-compliance with the mining law would not be a reason for striking out evidence of the possession.

Without saying whether the acts done were sufficient to constitute a possession, we think the court erred in its charge to the jury with reference to it. The charge was as follows:—

“ In order to make a valid location of mining claims the locator may adopt one of two courses. He may determine to locate his claim in accordance with law and customs. In order to get a title, a possessory title, in this way he must conform to the requirements of law. ...