Plaintiff alleges ownership of a quartz mine called Cuban Beauty No. 2, situated in Siskiyou County; that defendants unlawfully entered upon plaintiff's said land with force and arms and drove off plaintiff's men there employed, and are excavating gold-bearing rock contained therein. It is prayed that defendants be enjoined from interfering with said mining property, and that plaintiff be adjudged to be the owner thereof.
Defendants Oscar Dyer and Charles Truesdale disclaimed all interest in the land in controversy. Defendant W.F. Dyer answered claiming ownership in certain three mining claims known as Squaw Creek Gold Mine No. 1 and No. 2 and No. 3. It is alleged that a portion of plaintiff's said claim overlaps a portion of Squaw Creek Gold Mines Nos. 2 and 3; ownership is claimed at the commencement of the action and some time prior thereto, and that defendant and his predecessor in interest have been in possession continuously since September 12, 1898, and since said date have been entitled to possession; denies plaintiff's ownership of any part of said overlapping ground; denies interference with plaintiff or claim of his said alleged claim, except as to said triangular piece. *Page 24
The court found the facts for the plaintiff, and as conclusions of law found that plaintiff is the owner and entitled to have defendant restrained from interfering therewith. Judgment was accordingly entered, from which and from the order denying his motion for a new trial defendant appeals.
Certain errors of law occurring at the trial are specified by defendant, but as they are not noticed in his brief they will be deemed waived. Appellant's contention is, that the evidence does not sustain the findings in certain particulars, namely: 1. That at the time plaintiff made his location, November 26, 1900, the ground was unoccupied and subject to location, the contention of defendant being that he had long prior to that date made a valid location of ground including that in dispute; 2. Under like contention the finding is claimed as unsupported that plaintiff complied with law; 3. Also as unsupported, that one Grant Davis had attempted to locate the same land as that covered by plaintiff's location and thereafter sold and conveyed the same to plaintiff, and this because the Davis location was in conflict with a prior location by defendant; that the Davis location did not include any ledge in place; that Davis had made no discovery of mineral in place within the lines of his location; 4. Also as unsupported, so far as concerns defendant, that the attempted early locations of Davis and of defendants Dyer and Phillips were not made in compliance with the law then in force — to wit, the act of March 27, 1897, of this state — defendant's contention being that his location was valid.
There is evidence that Davis made his location October 30, 1898, on which day he posted notice at the center of the north line of the claim bordering on the so-called Cuban Beauty. The lines were run out and corners marked. The notice was not recorded until September 8, 1899. The Cuban Beauty and the Dewey, both of which corner with the Cuban Beauty No. 2 at the northeast corner of the latter, were located at the same time by the Davis party and formed one group of mines. Davis subsequently also located the Black Bear No. 2, which lies south of and adjoining the Cuban Beauty and west of the Cuban Beauty No. 2, and joins it, but extends south less than half the length of the latter. He conveyed to plaintiff on November 27, 1899, by deed placed in escrow, which was delivered on compliance with the contract of sale in September, *Page 25 1900. There is evidence, though not without conflict, that when these locations were made there was no other location or signs of any other location of the ground involved. On November 26, 1900, plaintiff relocated the Cuban Beauty No. 2 through one Cousins, who did the work. This location was intended to be, and was, substantially identical with the original Davis location. Cousins testified that Davis had previously shown him the lines and corners, and in January, 1900, defendant Oscar Dyer, in company with Davis, showed him some of the lines and corners. Speaking of the relocation in November, 1900, he testified: "At the time I located this claim I went all over it. As for mining work there was a small hole dug on it, in some small places it was picked a little. There wasn't a square yard of dirt or rock moved in any one place. I don't think it would amount to a cubic yard." When Oscar Dyer was with Cousins in January, 1900, he told Cousins that his brother (defendant) claimed the ground west of the southeast corner of the Davis claim, and that more than the assessment-work had been done. Cousins testified: "I then said that I had seen they had. But it wasn't on what we claimed — they hadn't hit a lick of work on what we claimed — north of our south line he had done a lot of work upon the hill and on the ground we didn't claim."
It appears from plaintiff's testimony that he relocated the Cuban Beauty No. 2, because of some doubt of the legality of the Davis location, under the State Mining Law of 1897, and his attempt to do the assessment-work was in order to hold the claim if the Davis location was legal. As to the relocation in 1900, the assessment-work becomes immaterial, as it might be done at any time during the year 1901, and the action was tried in August of that year. It also appeared from plaintiff's testimony that he acquired all the Davis group of claims, and the contract of sale calls for the payment of one hundred and twenty-five thousand dollars for all the mines. There were some others besides the three mentioned by plaintiff in his testimony following: "There were three claims — the Cuban Beauty, the Cuban Beauty No. 2 and the Admiral Dewey, and that work [the assessment-work for 1899] on the Admiral Dewey was supposed to develop the three claims, and was done for that purpose, and then I did the assessment-work for those three claims on the Admiral *Page 26 Dewey. I spent about three thousand dollars on the Admiral Dewey for the time in doing it. I ran about 500 feet of tunnels and then I built some buildings and then I fixed the trail and general development of the mining claims." Allen Davis testified that he was working on the Dewey Mine about May 1, 1899, and met defendant William Dyer there at that time, and in a conversation Dyer, in reply to a question as to the line between sections 6 and 7, and as to whether his location extended into section 6, pointed out about where the section-line was, and stated: "I haven't got anything in 6, all of mine is in section 7." The south line of the Cuban Beauty No. 2 is admittedly a considerable distance north of this section-line, — "three or four hundred feet" as testified by witness Cousins. Dyer's claims did in fact extend on to section 6, and he probably meant no more in his statement to Cousins and those present, than that he claimed nothing within the lines of the Davis location of the Cuban Beauty No. 2. Dyer knew where the section-line was, and so testified. The court found that the Squaw Creek No. 2 included some of the ground embraced in the Cuban Beauty No. 2.
It is not necessary to discuss the validity of the original location by Davis, for the court found that it was not made in conformity with the state law (Stats. 1897, p. 214), and the finding cannot be questioned by plaintiff. (Cowing v. Rogers,34 Cal. 648.) Nor do we think it necessary to examine the evidence particularly as to the validity of the Dyer locations, made about the same time, for they also failed to comply with the statute, and the court so found. Dyer subsequently posted a new notice January 14, 1899, recorded March 13, 1899. The statute above referred to was in force until February 28, 1899, when it was repealed. (Stats. 1899, p. 148.) Dyer claims under this location as well as his location in 1898. But we think the evidence fails to establish the validity of either location, while there is evidence showing the validity of plaintiff's location of November 26, 1900. As we understand the purpose of the evidence as to these early locations, it was not so much to show valid locations in fact as it was to show the intention of the locators as to the particular ground in question. Appellant's contention is, that he took all the ground south and west of a line drawn from the southeast corner of the Brown Bear claim to what is now claimed *Page 27 by plaintiff to be the southeast corner of the Cuban Beauty No. 2; and as the Brown Bear claim lay west of the Cuban Beauty No. 2, and extended only about six hundred feet along the latter, the said line would cut off more than a third of the southwest portion of the Cuban Beauty No. 2, including the ledges and rock in place found on the latter by Davis, its original locator. This contention of appellant is based largely on evidence that Davis himself conceded this to be the dividing-line in February, 1890, when he and appellant and some other persons were on the ground for the purpose of ascertaining its location. It appeared, however, that when Davis took the party to what in fact was the southeast corner of his claim, he by mistake told them it was the southwest corner, and that his southeast corner lay over east near the Chadwick claim. The evidence here is in sharp conflict, and there is evidence that the Cuban Beauty No. 2 was laid out originally as claimed by plaintiff, and that when Davis pointed east for his southeast corner he by mistake called it the southwest corner, which would thus cut off the triangular piece in the southwest part of the claim. This was all cleared up to the satisfaction of the trial court, and as there was evidence to support its conclusion, it cannot now be disturbed. Besides, the trial court held that as these declarations of Davis were made after he had sold the property to plaintiff, they were inadmissible as affecting plaintiff's title, and this ruling, though objected to at the time, is not now questioned. The bearing of this evidence was confined to its effect upon statements of plaintiff's witnesses as to where the lines of plaintiff's claim were in fact located. Appellant used at the trial a plat by way of illustration. Much of the evidence brought out in connection with this map is so reported as to be unintelligible here, though doubtless was understood by the trial judge. The diagram was not proven to be correct. It furnishes us but little aid because not drawn to show the exact situation of the several claims referred to in the evidence, and is but an approximation of their relation to each other. It is confusing by reason of this fact, and also because the top of the map is south instead of north, which latter is the usual and better method of preparing illustrative maps. From the best consideration we can give of the evidence with this map in hand, we think the findings are supported. *Page 28
The principal point urged by appellant is, that he was in possession of the contested ground when plaintiff made his last location, and therefore it was not unoccupied mineral land and subject to location by plaintiff.
Defendant claims from the evidence that the man sent to relocate the claim for plaintiff was driven off by defendant before he did any work; that defendant had a dwelling-house on the claim, was living in it and working on the claim, and had done about two thousand dollars' worth of work on it, and had the claim marked off so that the boundaries could be readily traced. And it is claimed that plaintiff had to commit a trespass upon the ground in order to locate. The decisions are not entirely harmonious as to whether an occupation such as is described above under an invalid location would be sufficient to prevent a valid location being made by another qualified person, provided he could do so without the use of force. The question is not necessarily involved in this case. There is evidence which the trial court accepted, showing that the facts are not as above claimed. Defendant had done much work on a claim at considerable distance from plaintiff's claim, and he had a dwelling-house on one of his claims, but it was a mile from plaintiff's claim. There was evidence that these improvements were not on any claim that encroached upon plaintiff's claim. Defendant's map shows a cabin which was erected by defendant more recently, but it is not on plaintiff's claim. The only work done by defendant on any part of plaintiff's claim is described as of but small extent.
The evidence is not that Cousins, who made plaintiff's location, was driven off by defendant at the time the location was made. This circumstance happened some time before, when he went there to do assessment-work under the Davis location. So far as the evidence shows, Cousins made the relocation peaceably and without interruption or objection by any person. He was familiar with the lines by previous examination of them, and he testified that when he relocated the claim he went all over it and found only such evidences of work on it as have been already stated. He found no person on any part of the claim and no one in actual possession of any part of it. The utmost that can be said of the evidence in support of defendant's contention is, that he had an *Page 29 invalid location on which he had done much work outside the boundaries of the claim in dispute; that he claimed that his location overlapped and included some of plaintiff's ground, and that in 1899 he had done some prospecting-work on the disputed ground, but was not working this ground when plaintiff's relocation was made.
In view of this state of facts, the case of Belk v. Meagher,104 U.S. 279, would seem to settle the question against defendant's contention. In that case Belk attempted to make a location in December, 1876, and did everything necessary to a valid location if the ground was then subject to location. There was, however, a prior locator whose rights precluded a valid location by Belk. This prior locator's rights expired on January 1, 1877, and were in fact then lost. Belk claimed that upon the failure of the prior locator to keep his location alive his (Belk's) location, made in December, at once attached. The court held that it did not so operate. Between December 19th and February 21st following Belk did a small amount of work on the claim, which did not occupy more than two days of his time, and he had no other possession of the property than such as arose from his location of the claim and his occasional labor upon it. On February 21, 1877, defendants Meagher and others entered on the property peaceably and made another relocation, doing all that was required to perfect their rights, if the premises were then open to them. After showing that the rights of Belk were not affected by the Montana statute, and that his right of location depended entirely on the act of Congress, the court said: "All he got or could get by his entry was possession, and that, to be of any avail, must be actual. Under the provisions of the Revised Statutes relied on, Belk could not get a patent for the claim he attempted to locate, unless he secured what is here made the equivalent of a valid location, by actually holding and working for the requisite time. If he actually held possession and worked the claim long enough and kept others out, his right to a patent would be complete. He had no grant of any right of possession. His ultimate right to a patent depended entirely on his keeping himself in and all others out, and if he was not actually in, he was in law out. A peaceable adverse entry, coupled with the right to hold possession which was thereby acquired, *Page 30 operated as an ouster, which broke the continuity of his holding and deprived him of the title he might have got if he had kept it for the requisite length of time. He made no such location as prevented the lands from being in law vacant. Others had the right to enter for the purposes of taking them up if it could be done peaceably and without force." The court then said: "There is nothing in Atherton v. Fowler (96 U.S. 513) to the contrary of this." Applying the principles of Belk v. Meagher, 104 U.S. 279, we must hold that defendant acquired no right to the disputed land which constituted it other than unoccupied public land or precluded plaintiff from making a valid location thereon. See the question discussed and cases cited pro and con in Lindley on Mines (2d ed., vol. 1, secs. 216-219). Belk v. Meagher also disposes of appellant's further contention that the repeal of the act of 1897 did not impair his rights vested by virtue of his invalid location. He could only claim such land as he actually possessed and was working in good faith.
The judgment and order should be affirmed.
Gray, C., and Smith, C., concurred.