Sabathe v. Gale

BARNARD, P. J. This is an action to determine the common boundary between two lode mining claims in Riverside County.

On November 20, 1934, the plaintiffs located the “Southern Cross No. 4” mining claim on unsurveyed government land. It extended 1,500 feet northerly and southerly and 600 feet in width, being 300 feet on each side of the lode line containing the point of discovery. On December 15, 1934, the plaintiffs also located the “Lone Star” mining claim, adjoining the Southern Cross claim on the east. This claim also extended 1,500 feet northerly and southerly and 600 feet in width, being 300 feet on each side of the lode line containing the point of discovery. Thus, the east side line of the Southern Cross claim was identical with the west side of [184]the Lone Star claim, and the two points of discovery were approximately 600 feet apart. Both claims were legally claimed and monumented, and location notices were recorded and were posted in monuments at the respective points of discovery.

On April 9, 1935, the plaintiffs sold the Lone Star claim on contract to the defendant. While this deal was being made the defendant noticed a certain “open cut” near the dividing line between the two claims. She inquired whether this cut was on her claim and was told that it was. A year or two later, it was discovered that this cut was actually on the Southern Cross claim. The plaintiffs then voluntarily moved the dividing line between the two claims 53 feet westerly and marked the new dividing line with a row of monuments and stakes with notices attached, thus giving the defendant an additional 53 feet in order to make good their statement that this cut was upon her claim.

On January 31, 1945, the defendant, with her son and others, and the plaintiff Sabathe, went to the claims together. They found that the original notice for the location of the Lone Star claim was then in a monument at the “open cut” near the boundary between the two claims and Sabathe discovered that the original monument, discovery hole and notice for the Lone Star claim had been removed and destroyed. Sabathe told them that the place where the notice was then found, at the “open cut” near the boundary line, was not the place of discovery, but the defendant and her son insisted that it was and, over his protest, posted an amended notice of location at that point. On March 6,1945, the defendant and her son, with a surveyor, returned to the claims and posted a second amended location notice at the “open cut” and had the surveyor survey a claim, using that point as the center and setting stakes for new corners with the result that the Lone Star claim, as claimed under the amended location notice, was moved 300 feet westerly, taking in 247 feet of the Southern Cross claim in addition to the 53 feet which had already been given to the defendant. It is this 247 feet which is in controversy here.