Opinion
Appeal from a judgment of the Superior Court of Placer County, and from an order refusing a new trial.
COUNSEL:
Hale & Craig, and William Singer, Jr ., for the Appellants, contended that it was necessary that the boundaries should have been marked, and cited Holland v. Mt. Auburn Co ., 53 Cal. 149; Gelcich v. Moriarity , 53 Cal. 217; Funk v. Sterrett , 59 Cal. 613; Newbill v. Thurston , 65 Cal. 419; Du Prat v. James , 65 Cal. 555; Horswell v. Ruiz , 67 Cal. 111; Anderson v. Black , 70 Cal. 226; Gregory v. Pershbaker , 73 Cal. 109.
F. P. Tuttle, for the Respondents, argued that section 2324 of the United States Revised Statutes, which required that the location should be distinctly marked upon the ground, was to be read in connection with sections 2329, 2330, and 2331; and that when so read, it was clear that it did not require the marking of the boundaries of a placer mining claim upon surveyed land; that the object of requiring the boundaries to be marked was to enable them to be readily ascertained, and that the reference to the number of the section and the designation of the particular quarter of that section which was sought to be located enabled the boundaries to be readily ascertained; and that this was all that was required. He further argued that all the cases cited for the appellants, with possibly two exceptions, were cases of quartz or lode claims, and that a different rule applied to placer claims; and that the portion of the opinion in Gregory v. Pershbaker, relied on for the appellants, was a mere dictum.
JUDGES: In Bank. Hayne, C. Foote, C., and Belcher, C. C., concurred.
OPINION
HAYNE, Judge
Action to determine the right to a mining claim. Judgment for defendants. Plaintiffs appeal.
In 1886 the grantors of the plaintiffs located the land, marked off the boundaries, and did all the other acts required of them by law, and therefore they acquired a valid claim if there was no prior right in the grantors of the defendants. The latter posted and recorded notice of location, but failed to mark off the boundaries. The statute requires that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced." (Rev. Stats., sec. 2324.) And it is well settled that a failure to comply with this requirement invalidates the claim. It is contended for the respondents however, that the requirement does not apply where the public surveys have been extended over the land, and the claim is for the whole of a legal subdivision; and this is the only question to be determined. The learned counsel for the respondents expressly says: "The one point to be passed upon by the court in this case is, whether in locating a placer mining claim by legal subdivisions on surveyed ground it is necessary to mark the lines of the location." The position is, that this exception to the general requirement follows from other provisions of the Revised Statutes. But we do not think that this position can be maintained.
Section 2329 provides, among other things, that "where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivision of the public lands."
This, however, simply provides where the claimant shall run the lines of his claim. It does not at all dispense with the requirement as to how the lines shall be marked or evidenced. Section 2331 provides that "where placer claims are upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required," etc.
This provision does not refer to the marking by the claimant of the boundaries of his claim upon the ground, but to the plat and survey which are to be filed upon the application for the patent. Nor do we see any provision which dispenses with the general requirement that the boundaries shall be marked.
The construction contended for does not seem to us to be in harmony with the general purpose of the act. The purpose of the requirement that the claimant shall mark the boundaries of his claim is to inform other miners as to what portion of the ground is already occupied. The men for whose information the boundaries are required to be marked wander over the mountains with a very small outfit. They do not take surveyors with them to ascertain where the section lines run, and ordinarily [21 P. 364] it would do them no good to be informed that a quarter-section of a particular number had been taken up. They would derive no more information from it than they would from a description by metes and bounds, such as would be sufficient in a deed. For the information of these men, it is required that the boundaries shall be "distinctly marked upon the ground." The section lines may not have been "distinctly" marked upon the ground, or the marks may have become obliterated by time or accident. And to say that the mere reference to the legal subdivision is of itself sufficient would, in our opinion, defeat the purpose of the requirement.
We therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded for a new trial.