Carter v. Bacigalupi

Hayne, C. — This was an action to determine the right to a mining claim. The defendant had judgment, and the plaintiffs appeal. The main points made for the plaintiffs relate to the sufficiency of the location of the defendant’s grantor and the sufficiency of the transfer to the defendant.

1. It was conceded at the trial that the plaintiffs’ locations were properly made and maintained, if the ground was open to location. The defense was, that the ground was not open to location, because the defendant had a pi’ior valid and subsisting claim. And the question is whether he had such a claim.

The provision of the federal statute of May 10, 1872, in relation to the matter is as follows:—

“Sec. 2324. The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.”

And then follows a requirement as to the amount of work w'hich shall be done.

This statute does not require that a notice shall be recorded. (Thompson v. Spray, 72 Cal. 533; Souter v. Maguire, 78 Cal. 544.) Nor does it require that a notice shall be posted on the claim. It leaves those matters to the regulation of the local laws. The local laws gener[189]ally require that a notice shall be posted, and even in the absence of such a requirement it would be a very proper aid to the description. But the statute does not require it.

The local regulations of the Tuolumne mining district, adopted in October, 1872, contain the following provisions:—

“ Sec. 3. Mining claims hereafter located in said district, upon veins or lodes of quartz, or other rock, or veins of metal, or its ores, shall be located in the following manner, to wit: By posting thereon two notices written or printed upon paper, or some metallic or other substance, each to be posted in such manner as to expose to view the full contents of the notice, one of which shall be posted in a conspicuous place at each end of the claim. Said notices shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument as will identify the claim. Said notice may be in the following form, to wit: —