De Noon v. Morrison

Fox, J.

— Action to recover the possession of the Gordon placer mine, in Nevada County. Trial by jury, verdict and judgment for plaintiff, motion for new trial made and denied, and defendants appeal from both the judgment and order.

One of the grounds of motion for new trial was that the evidence was insufficient to justify the verdict. This point is incidentally discussed on the appeal, but it is difficult to determine whether appellants still rely upon that ground or not. We have, however, examined the evidence, and find that there is some evidence to support the verdict upon every issue of fact involved in the case. Under the well-established rule of this court, the verdict will not therefore be disturbed on that ground.

Defendants claim the mining ground under a relocation authorized, as they claim, by a failure of plaintiff to do the required assessment work for the year 1888. No work was done within the lines of the Gordon claim in that year, but the plaintiff claimed to be the owner, and was in possession, of two or more adjoining mining claims, of which the Gordon was one. Of this claim she proved regular location and transfer to herself, and performance of the requisite assessment work down to and including the year 1887, and also, that the five hundred dollars of work necessary to procure a patent for the Gordon claim had been done prior to 1888. She also claimed to be the owner and was in possession of the Morton placer-mining claim, a claim adjoining the Gordon on the east. In 1888 she expended $306 in [165]running a tunnel on the Morton claim in close proximity to the line of the Gordon. It was claimed that this tunnel was run for the benefit of both mines, and proved that it would tend to develop both. Defendants, however, claim that at the time the work was done its purpose was to complete the work necessary to entitle the plaintiff to a patent of the Morton, and not for the benefit of the Gordon in any sense. That is a question of fact submitted to the jury, and their verdict upon that question will not be disturbed. As a matter of law, the plaintiff had the right to do the work necessary for the protection of both claims on one of them, both being held by her in common. This question seems to be settled by the decision of the supreme court of the United States in St. Louis Smelting Company v. Kemp, 104 U. S. 654, 655, where the court, speaking through 0 Justice Field, says:—

“The statute of 1872 provides that on each claim subsequently located, until a patent is issued for it, there shall be annually expended in labor or improvements one hundred dollars; and on all claims previously located, an annual expenditure of ten dollars for each one hundred feet in length along the vein; but where such claims are z held in common,’ the expenditure may be made upon any one claim. .... Labor and improvements within the meaning of the statute are deemed to have been had on a mining claim, whether it consists of one location or several, when the labor is performed, or improvements are made, for its development; that is, to facilitate the extraction of the metals it may contain; though in fact such labor and improvements may be on ground which originally constituted only one of the locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for the turning of a stream, or the introduction of water, or where the improvement consists in the construction of a flume to carry off the debris or waste material."