Rehearing Granted March 17, 1938.
Appeal from Superior Court, Calaveras County; J. A. Smith, Judge.
Action by Charles W. Kramer against the U.S. Machinery Company to quiet title to certain mining claims. Judgment for plaintiff, and defendant appeals.
Charles L. Gilmore, of Sacramento, for appellant.
Joseph H. Huberty, of San Andreas, for respondent.
Mr. PLUMMER, Justice
The plaintiff had judgment quieting title to twenty-seven mining claims situate in Calaveras county. From this judgment the defendant appeals.
The record shows that at one time a man by the name of Frederick H. Rindge located forty-five lode mining claims in Calaveras county, and did considerable development work thereon. Annual labor or assessment work was last performed upon said mining claims in 1930.
The record shows that during the years 1931, up to 1935, Congress passed certain acts suspending the annual assessment work required by the statute of the United States. The act in question required the filing of certain notices. The record shows that no notice of a desire or intention to hold any of the claims referred to in the complaint was ever filed in the office of the county recorder by Frederick H. Rindge, or any one in his behalf. On February 13, 1935, Harda Kramer located twenty-seven of said mining claims, and thereafter, and on the 18th day of February, 1935, conveyed said twenty-seven mining claims to Charles W. Kramer, her husband, who is the plaintiff in this action. On February 25, 1932, Gladding, McBean & Co. recovered judgment against Frederick H. Rindge, and caused two of said mining claims, to-wit, Gold Cliff and Buckhorn, together with some other property, to be sold under a writ of execution, receiving a sheriff’s deed therefor, June 20, 1935. On August 27, 1935, Gladding, McBean & Co. transferred said property to the U.S. Machinery Company, a corporation, the appellant in this action.
Upon this appeal the appellant presents two questions for consideration, constituting two causes alleged to be sufficient to necessitate a reversal of the judgment. The first question presented is whether the acts of Congress suspending the annual assessment work on mining claims, containing no penal provisions for failure to file the notices provided therein, work a forfeiture ipso facto of mining claims. The second, in an action to quiet title to unpatented mining locations, is it essential, to recovery by plaintiff, that he plead and establish by proof, and the findings of fact by court show all the requirements necessary to a valid mining location, including discovery? If the second question propounded is answered in the affirmative, it is unnecessary to extend the length of this opinion by considering the question of whether a failure to file notice of intention, as specified in the acts of Congress, works a forfeiture.
Section 2320 of the Revised Statutes of the United States, and section 23, being the same section of the law found in 30 U.S.C.A., so far as pertinent here, reads as follows: "Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits located prior to May 10, 1872, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location."
Section 1426 of the Civil Code reads: "Any person, a citizen of the United States, or who has declared his intention to become such, who discovers a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit, may locate a claim upon such vein or lode," etc.
The gist of the various decisions is that there must be actual discovery of gold, silver, or other precious metals mentioned in the statutes, within the limits of the claim located; otherwise, the location is ineffective.
On the part of the appellant it is contended that the testimony in this case fails entirely to show the discovery of any gold, silver, or other precious metals mentioned in the statutes, within the limits of the claims attempted to be located. That this contention is meritorious and must be upheld, appears from the record, from which we copy all of the testimony relating to that question.
The testimony of Mrs. Kramer, the locator, is as follows:
"Q. And did you discover any rock or mineral bearing rock or vein at that point?
A. Yes; we discovered--seen rock.
"Q. Did you believe at that time that you would be justified in spending time and money for the purpose of developing a paying mine?
A. I did.
"Q. Mrs. Kramer, what experience have you had in mining prior to the dates of the location of these several claims?
A. I have had no mining experience.
"Q. Had you ever located a mining claim before that?
A. No, sir."
The plaintiff’s, testimony is as follows: "There is a ledge on the Gold Cliff that runs out underneath the barn. There is also a ledge that runs across from the face of the tunnel and connects up across the creek which is in place. There is at that place a vein of gold-bearing rock or quartz. On the Buckhorn Claim there is a discovery hole which I supposed Mr. Rindge and them put back in the side of the bank, and on top of that above it there is a ledge comes down. There is a blanket formation, and then a ledge comes down on top of the hill. I wasn’t at the Riverside or the Jumper or the Good Luck or the Rajah or the Providence Claims the day the locations were made. On the Deep Gulch Claim there is a quartz-lead runs across on top of the hill which there was a discovery point there and which shows quartz. The Croesus was up on top of the hill and there is a discovery point there, a big vein in place. We went up and looked it over and we thought it was well worth our timé locating it. It had been located by Rindge before. There is a cross vein on the Comet Mine which runs in through the Colossus and crosses it. From the Sparrow Hawk they dug a hole for location which shows quartz. The Keystone was the same as all the rest of them. There was two or three different places dug on that property in one shallow hole, showing quartz and rock in place. On the Colossus there was a location right in the center of that claim there and it showed a nice vein there with rock in place, several blowouts. It was quartz-rock. On the North Star Mining Claim there was a quartz vein there and shoot of quartz. The Airship conflicts with a couple of other claims and we went over the claim back and forth over it and put our location in the center of it where the quartz vein goes across the lode line and the discovery was made. There was two holes on the Gold King and on the Golden Rule that had been sunk down there, and both showed a nice quartz ledge. The Airship, Gold King and Golden Rule apparently have a lode line extending from one to the other. I was able to trace it. I wasn’t at the Mount Pleasant when the location was made, but have been since. It is a big round hole and a big ledge or lode line goes across it. The location notice is posted on top of the hill and there was a discovery at that point. On the Overland there is the lode line goes over that trench dug there. The lode line goes over the Confidence and quartz shows also above the road. The Rattlesnake lays down below the right of the right-hand side going up, and there was a big quartz vein goes down through there and several blowouts. I was not at the Bullion the day it was located. The lode line of the Ohio runs across it. There is quartz in there, a couple of shafts, a tunnel which has been known for years as a mine, forty or fifty years ago. I was not at the Rajah, the Manzanita or the Bullfrog on the day they were located. At the Claude W. there is several ditches and trench work done, and also on the Ruth N. There has been rock or lode in place excavated. I have been to the point of discovery on the Riverside and there is a good vein, but it is broken up. On the Jumper there is rock in place there, but where they had been driving a little tunnel there is nothing at all. There lode lines on all which we took up. There is a bunch of claims south of the Gold King, Golden Rule and Airship such as the Bobcat and Texas. We could never find anything on them. The Ohio has got plenty of quartz on it. All those up there have. The Manzanita was a little hard to find, but we found some quartz on there that showed pretty fair. The same line goes through the Bullfrog."
A witness by the name of Wiley, a civil engineer, testified as follows:
"Q. Mr. Wiley, at the point where these location notices were posted on the 27 several and respective claims was there a vein or lode of quartz in place bearing gold or other mineral? a. I think in practically every case there was some sort of showing.
"Q. Do you recall now any in which there was not? A. Well, I would be giving my personal opinion on a matter of discovery if I would say to what extent there was a showing by assumption as a witness in pointing out these points so that the locator would be satisfied with the showing as on the ground, although in most cases there was. I would say in pretty nearly every case there was a showing of quartz or something that would justify a locator in locating a mining claim.
"Q. Mr. Wiley, what is the type of area covered by these locations? A. I would say in general, that the land would impress one as more applicable to mineral than any other thing you could think of as.
"Q. What is the topography? A. It is a rocky brushy country.
"Q. Rough and mountainous? A. Yes, it is hilly.
"Q. What is the type of brush growing thereon? A. Chaparral, generally call it chapparal.
"Q. Is it a mineral area? A. Yes, it is a mineral area.
"Q. And what type of minerals are contained in the area? A. For the most part the general character of the ground is granite and limestone.
"Q. Is there quartz also? A. Yes, there is quartz showing in stringers and they are called blowouts.
"Q. Did you observe that same condition throughout this entire area, where the location notices are posted? A. The whole area is very similar, yes."
As contended by the appellant there is not one word showing discovery of rock in place bearing minerals, as provided by the statutes of the United States, and by section 1426 of the Civil Code.
In Garibaldi v. Grillo, 17 Cal.App. 540, 120 P. 425, the court, in substance, stated: "There must be evidence with respect to quartz or lode claims that there is a vein or lode of mineral rock in place containing minerals of such character and quantity that a reasonably prudent man would be justified in expending time and money developing the same," etc.
In Harper v. Hill, 159 Cal. 250, 113 P. 162, 166, the court, considering a like question, used the following language: "The record does not set forth any substantial evidence of a discovery of valuable mineral within the lines of the claim. The defendants testified that there were seams of mineral upon the claim, but they did not state of what such mineral consisted. The term is too vague and general to justify this court in reversing a finding upon the theory that the witnesses intended to declare that the mineral in question was valuable and of a character that would support a mining location under the laws of the United States. A discovery of valuable mineral within the located boundaries is an essential prerequisite to a valid mineral location upon public lands of the United States."
The case of Stinchfield v. Gillis, 96 Cal. 33, 30 P. 839, has no bearing upon the questions involved in this action. That action was one to recover the value of gold alleged to havé been taken from a claim belonging to the plaintiff. The court in that case, however, does quote from Jupiter Mining Co. v. Bodie Consol. Co., C. C., 11 F. 666, 675, to the effect that a vein or lode consists of quartz in place carrying gold, silver, or other valuable mineral deposits named in the statute. To the same effect is the case of Nevada Sierra Oil Co. v. Home Oil Co., C. C., 98 F. 673.
In Tuolumne Consolidated Mining Co. v. Maier, 134 Cal. 583, 66 P. 863, among other things the court said: "We take it to be the conceded law that there can be no valid location of a mining claim without an actual mineral discovery thereon."
We do not deem it necessary to cite authorities to the effect that the plaintiff must prevail upon the strength of his own title, and not upon the weakness of the title asserted by his adversary. In this case the testimony which we have quoted and the authorities which we have cited we think establishes beyond question that the plaintiff has established no title to the premises claimed by him.
The judgment is reversed.
We concur: PULLEN, P. J.; THOMPSON, J.