Judson v. Herrington

MARKS, J. This is an appeal from a judgment which quieted plaintiff's title to two mining claims, Brandywine No. 1, and Brandywine No. 2, in San Bernardino County.

The case has been here before (Judson v. Herrington, 55 [566]Cal.App.2d 476 [130 P.2d 802]). There is no serious difference in the material evidence introduced at the two trials and the issues argued now were covered in the earlier opinion where there is a detailed statement of facts which need not be repeated here.

Defendant claims there is a material difference in the evidence introduced in the second trial from that before the court in the first. He stresses the testimony of W. L. Page, the original locator of the two claims, to the effect that prior locations had been made by him in 1928. An examination of the record discloses that the date “1928” occurred only in the questions propounded to Mr. Page by counsel for defendant which were answered in such a manner as to indicate that he had located the property covered by the Brandywine claims in 1928, two years prior to the locations of the claims on January 4, 1930, under which plaintiff claims. Later in the cross-examination Mr. Page realized that he had been led into testifying concerning these locations as though they had been made in 1928. He then corrected his testimony and said that he first located the claims under other names in 1927, did no assessment work on them and again located them on January 4, 1930. No location notices filed in 1928 were introduced but the location notices of 1927 were produced and we are satisfied that Mr. Page did not locate these claims in 1928, nor at any other times other than 1927 and in 1930. It is also clear that he did no assessment work on the property following the 1927 locations but built the necessary monuments, posted and recorded the location notices and otherwise conformed to the federal laws in locating the properties in 1930 as placer claims containing bentonite.

The questions presented by defendant were decided on the former appeal upon practically the same evidence which we now have before us. As the application of the rule of the law of the case seems now to be somewhat a matter of discretion vested in the courts (England v. Hospital of the Good Samaritan, 14 Cal.2d 791 [97 P.2d 813]) we will consider the questions presented and briefly outline the evidence necessary to understand them.

On March 17, 1933, Page and his wife conveyed the two claims to E. T. Webb, and on August 8, 1933, Webb conveyed them to Paul Judson, plaintiff in this action.