Anderson v. Meuer

BARNARD, P. J. This is an appeal from a judgment quieting title to a mining claim in the plaintiffs.

The respondents Anderson and Umbach, on July 15, 1935, leased this mining claim to Rolph L. Meuer, who will be referred to as the appellant. This lease was for a term of five years with the privilege of renewal on certain conditions, and it provided that the lessee should have sixty days in which to do prospecting and such other work as he saw fit; that within sixty days he should begin “actual mining operations” and thereafter do a specified amount of such work each month; that he should have the right to remove all machinery and equipment upon the expiration or termination of the lease; that in the event of any default upon his part the lessors should give him thirty days written notice; and that if he failed and neglected to correct said default within thirty days the lease should terminate.

It is conceded that the time within which the appellant was required to begin actual mining operations was extended by mutual agreement to July 1, 1936. On November 8, 1936, the lessors served written notice on the appellant that he was in default in that he had not done the required work during the preceding four months and notifying him that if the default was not corrected within thirty days the lease would be terminated. On December 14,1936, a notice that the lease was terminated was served. In March, 1937, the appellant assigned his interest in the lease to the Golden Butte Mining Company, Ltd., a limited copartnership of which he was the only general partner. In this action, which was subsequently filed, the only issues presented, as stated by counsel for the appellants, were “whether proper notice was given after they claimed the default, and secondly if such notice was given, whether there was a default during the four months given to perform this work. ’ ’ The court found in all respects in favor of the respondents and this appeal followed.

It is first contended that the evidence does not support the finding that notice of default was given. The appellant himself testified that on or about November 8, 1936, he received a letter, although he could not remember whether or not it was registered; that “some kind of a notice” was enclosed in this letter; that he read the notice; that the notice specified that he was in default in the performance of his work under this lease; that it stated the exact amount of the default; that it stated that he was to remedy such default within thirty days; that four or five days later he was handed another notice; that [843]