Adams v. Crawford
Before: Haynes, Temple
Synopsis
Jury Trial—Rule of Court—Deposit of Jury Fees by Party Demanding Jury—Waiver—Trial by Court.—A rule of the superior court requiring that the party demanding a jury trial shall deposit the jury fees with the clerk within five days after making such demand, and that, should the trial continue more than one day, the party demanding the jury shall deposit with the clerk, before the opening of the court on each day, the jury fees for each day so occupied in the trial, is reasonable, and if no deposit is made or tendered as required by the rule, the jury is waived, and the cause may be tried by the court without a jury.
Id.—Action to Quiet Title—Demand of Jury at Trial—Failure to Make or Tender Deposit—Nature of Action Immaterial.—Where an action to quiet title was set for trial, and no jury had been demanded or ordered for the trial of the cause, and a jury was first demanded by the plaintiff after the cause was called for trial, and the parties had announced themselves ready, and no deposit of jury fees was then made or offered, or had, at any time, been made or offered by the plaintiff, it is not error to refuse a jury trial on account of the failure of plaintiff to comply with the reasonable rule of the court; and it need not be determined whether such an action is, in its nature, equitable or not.
Mining Claim — Effect of Discovery—Location Essential—Valid Location by Other Parties—Title.—The discovery of a mining claim vests no right or title to the property, and is but one step in acquiring title to a mining claim, and must be followed by a location, which consists of the marking of the claim by monuments so that its boundaries can be readily traced, the posting of a notice thereon, and, where the state or district law requires it, the recording of such notice; and where the discovery of the claim is first made by two persons, and a valid location of claims extending each way from the point of discovery is first made by other persons, the title of such locators will prevail as against the first discoverers of the claim.
Id.—Placing of Monuments—Conflicting Evidence—Findings.—Where there is conflicting evidence as to the marking of the locations by monuments, and there is affirmative testimony that monuments were erected at the center of each end of the two claims, and also at each of the four corners of each of the claims, and that notices of location were posted oil the initial monument of each of the claims, and that the notices were duly recorded, the findings of the court in favor of the ownership of the locators cannot be disturbed upon appeal.
Id.—Citizenship of Locator—Objection in Argument upon Appeal for First Time..—Where the location notice recites that the locator is a citizen of the United States over the age of twenty-one years, and there is no specification of the invalidity of the location upon the ground that he was not a citizen, nor was any objection made to the introduction of the notice in evidence on that ground, the objection that there was no evidence to prove his citizenship is not raised by the record and cannot be considered upon suggestion made in the appellant’s brief upon appeal for the first time.
Opinion — Haynes
Haynes, C. This action is prosecuted by the plaintiff to quiet title to a certain mining claim called the “Adams mine.” The cause was tried by the court without a jury, and written findings were filed in favor of the defendants. This appeal is from the judgment and from an order denying the plaintiff’s motion for a new trial.
Appellant’s first contention is that the court erred in denying plaintiff a trial by jury. The record shows that on the day of the trial no jury was in attendance, nor had any been demanded or ordered for the trial of said cause; that after the cause was called for trial and the parties respectively announced that they were ready, the plaintiff for the first time demanded that said cause be tried by. jury. The complaint was not verified, and the defendant’s answer denied each and every allegation of the complaint.
Rule, 28 of the superior court of Riverside county, in which said action was tried, is as follows: “A party demanding a jury trial shall deposit the jury fees with the clerk within five days after making such demand. Should a trial of an action by a jury continue for more than one day, the party demanding the jury shall deposit with the clerk, at or before the opening of the court on each day, the jury fees for each day so occupied in the trial.” The plaintiff did not then, nor had he at any time, made or offered to make such deposit. We think the court did not err in denying plaintiff’s demand for a jury trial, because the rule of the court above quoted was reasonable and had not been complied with. Therefore we need not inquire whether this particular action was in its nature equitable or not.
Appellant also contends that the evidence is insufficient to justify the findings. This controversy is over a mining claim situated in the Chuckawalla range of mountains, about forty miles northeast from Saltón, in Riverside county. The plaintiff and one Bailey discovered the lode on the 12th of April, 1894, but left without making any location. Plaintiff returned to San [498]Bernardino, but went back on the eighth day of May to locate the claim, and made a location thereon on the ninth day of May, 1894. Prior to the plaintiff’s location, namely, on the 28th of April, 1894, the defendants found and located said claim.
At the time the plaintiff and Bailey first discovered the lode in question, they dug down to the depth of eighteen or twenty inches and took out some specimens of ore which the plaintiff took with him to San Bernardino to have tested. A sufficient test was made upon the ground to ascertain that the ore contained gold. Bailey then said he did not want the claim. It appears that Bailey subsequently informed some of the defendants of the discovery made, and gave some directions that might aid them in finding it. They succeeded in finding it, and made their locations at the time above stated; one locating the claim from the discovery northward, and others locating a claim from the same point southward. The court found as follows: “1. That plaintiff was not at the time of the commencement of this action, is not now, and never has been, the owner of the real property described in plaintiff’s complaint, or of any part thereof; 2. That the defendants answering herein are the owners of said real property, and of every part thereof.”
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