Anthony v. Jillson

Hayne, C. This was an action to determine the right to a patent to certain placer-mining ground. The defendants applied for a patent to a tract called the Rough Diamond mine. The plaintiffs claimed a tract of thirty acres, which overlapped a corner of the defendants’ claim to the extent of 7.44 acres. This latter piece is the one in controversy. An adverse claim was filed by the plaintiffs; and thereupon such proceedings were had that the present action was brought under section 2326 of the Revised Statutes to determine the validity of the respective claims. The trial court gave judgment for the defendants, and the plaintiffs appeal.

1. The plaintiffs’ mine is made up of two claims,— one of twenty acres, alleged to have been located by Severino Gobbi in 1878, and the other of ten acres, alleged to have been located by the plaintiff Frank Anthony in 1885.

In relation to the Gobbi claim, the court found as follows: “That on December 6, 1878, one Severino Gobbi, a foreigner, sought to locate a placer-mining claim by posting on the premises a notice claiming in his own name twenty acres of ground situated in Chili Gulch [298]mining district, in said county and state, said notice containing no description of boundaries other than giving the legal subdivision thereof, viz., being the north half of northwest quarter of northeast quarter of section 25, township 5 north, range 11 east, Mount Diablo meridian; that on the next day thereafter, viz., December 7, 1878, he declared his intention of citizenship, and caused a copy of his notice of location to be recorded in the county mining records of said Calaveras County; but whether such notice was recorded before or after making such declaration of intention does not appear.”

The evidence justifies this finding. It shows that Gobbi did not file his declaration of intention to become a citizen until the day after he posted his notice of location; and it does not show that he did anything else after his declaration of intention, except, perhaps, to record his notice of location. The appellants assert in their specification that “there were no local rules or laws in force,” and their counsel maintain in their brief that there were none. Certainly, there is no evidence of any local rules of any particular tenor; none requiring notices to be recorded, for example. Therefore, recording the notice was not required (Thompson v. Spray, 72 Cal. 533; Souter v. Maguire, 78 Cal. 544); and not being required, it was useless. Leaving the record out of consideration, we see nothing that Gobbi did to effect a location except the posting of his notice; and at the time he posted his notice he was not a citizen, and had not declared his intention to become such. Under these circumstances, we do not think he acquired any right. (Rev. Stats., sec. 2319; Lee Doon v. Tesh, 68 Cal. 43.)