Deney v. Corey

SHAFTER, J. This is an action to recover damages for an alleged trespass upon a mining claim of the plaintiffs, described as situated on “Last Chance Hill and about one hundred feet north of the claim known as the Real Del Monte claim in Mono County, California.”

It is alleged in the complaint that on the eleventh day of December, 1860, the claim in question was located by the plaintiffs or by those to whose right they have succeeded, pursuant to the mining laws of the district in which the claim is situated. That the notice claimed seven hundred feet each way, running northeasterly and southwesterly, from the point where the notice was exhibited. That while the plaintiffs were in possession, and on or about the 1st of April, 1861, the defendants entered upon the premises and committed the trespass complained of, etc., taking out and carrying away the gold and silver quartz from said claim.

Most of the leading allegations of the complaint are denied in the answer, and the defendants, by way -of special defense, say that on or about the 7th of December, 1860, they or those [99]under whom they claim, located the ground in question and remained in possession thereof until about the middle of said month, when their claim was duly recorded in the mining records of the district as follows:

“We, the undersigned, claim six claims, including one for discovery which belongs to M. W. Ridgley, on the Aetna Quartz Lode, commencing at this notice and running 600 feet each way in a North Easterly and South Westerly direction on the Lode, situated about 60 feet Easterly from the Edward Everett Lode.

“Located Dec. 15, 1860. Filed for Record Dee. 18, 1860.

“Recorded Dec. 19, 1860.

“J. M. BROWLY.”

(Signatures of parties.)

It is further alleged that the defendants have been in peaceable possession, etc., and that they alone have the right to enter upon the claim and take out rock, etc.

The facts of the defendants’ alleged title are denied in the replication. The trial was by jury, and under the instruction of the court, special issues were drawn up and submitted to them. The issues, together with the findings of the jury thereon, were as follows: 1st. Is the vein in controversy the one located by the plaintiffs’ grantors as the “Almadén Claim”?