Summary
In Duryea v. Boucher, 67 Cal. 141, [7 P. 421], the notice erroneously described the land in the wrong government subdivision.
Summary of this case from Green v. GavinOpinion
Department Two
Appeal from a judgment of the Superior Court of Calaveras County, and from an order refusing a new trial.
COUNSEL:
The notice of location posted by the plaintiffs in 1876 did not embrace the land in controversy. The description should have conformed to the rectangular subdivisions as established by the survey. (U. S. Rev. Stats. §§ 2324, 2331; Golden Fleece Co. v. Cable Con. Co. 12 Nev. 323; Mallib v. Uncle Sam Min. Co. 1 Nev. 194; Dutch Flat Water Co. v. Mooney , 12 Cal. 535; King v. Edwards, 1 Mont. 239.)
W. E. Turner, for Appellants.
W. T. Lewis, and A. C. Adams, for Respondents.
In considering ambiguous descriptions in the locations of mining claims, the same rule of construction obtains as in the construction of deeds, where like ambiguities exist. So construed the description in the notice of location of the plaintiffs was sufficient. (Wade v. Deray , 50 Cal. 376; Colton v. Seavey , 22 Cal. 496; Franklin v. Dorland , 28 Cal. 175; Piercy v. Crandall , 34 Cal. 334; Stanley v. Green , 12 Cal. 148.)
JUDGES: Thornton, J. Sharpstein, J., and Myrick, J., concurred.
OPINION
THORNTON, Judge
[7 P. 422] We think that the location of the mining claim by plaintiffs in July, 1876, was made in accordance with law, and included the ten acres in controversy. The notice as recorded and posted was sufficient. It described the land by the adjoining tracts on the north, east, and south, and on the west by unoccupied lands. As the claim was for thirty acres, its boundary on the west could be easily determined. It makes no difference that the wrong legal subdivisions are inserted in the notice. These may be rejected as false where the remaining description sufficiently identifies the land, in accordance with the maxim falsa descriptio non nocet cum de corpore constat. (Broom's Legal Maxims, 605; 1 Greenleaf Ev. § 301.) The rule may be thus stated: As soon as there is an adequate and sufficient description, with convenient certainty, of what is intended to pass by the particular instrument, an erroneous addition will not vitiate it. So much of the description as is false will be rejected, and the instrument will take effect, if a sufficient description remain to ascertain its application. The court finds that the plaintiffs did work on the land in dispute and there is evidence to support it.
It is urged that the finding of the court below as to the location of the defendants Gleason and O'Neil, of the ten acres in controversy, is contrary to the evidence, inasmuch as the ten acres are described in the finding as being in the southwest quarter of section 13, T. 5 N., R. 11 E.; that the evidence shows beyond dispute that the tract of ten acres is in the southeast quarter, and therefore the finding is not sustained by the evidence. But the other findings, which are sustained by the evidence, and the conclusions of law which are properly deduced, show that the plaintiffs are entitled to a judgment in their favor if the description of the land in the finding was, as it should be, the southeast quarter. Under such circumstances the cause should not be sent back for a new trial.
Judgment and order affirmed.