Pralus v. Pac. Gold & Silver Mining Co. , 35 Cal. 30 ( 1868 )

By the Court, Sprague, J.:

This action was brought under the two hundred and fifty-fourth section of our Practice Act, to quiet title to a quartz mining claim upon the public lands. The plaintiffs, as appears by the complaint, claim only a possessory title in or upon the public lands of the United States, and the first question presented is, whether such a claim or title is sufficient to authorize an action by the party in possession under the same to determine the adverse title or claim of a party out of possession. This has been frequently decided by this Court in the affirmative, and we think correctly. (Merced Mining Company v. Fremont, 7 Cal. 319; Smith v. Brannan, 13 Cal. 107; Boggs v. Merced Mining Company, 14 Cal. 279; Curtis v. Sutter, 15 Cal. 259; Head v. Fordyce, 17 Cal. 149.)

The allegation in the complaint, “ that by means of the false representations and pretenses aforesaid of the said defendant (referring to the alleged adverse claim of defendant) they are greatly embarrassed in the free enjoyment, use, and disposition of their said described mining claim * * * and that the interest of these complainants in said mining claim * * * is greatly depreciated by reason of the possibility of title in this defendant, resulting from and growing out of said false and pretended claims,” is sufficient averment of injury under the statute, resulting from such adverse claim, to sustain the action.

The special findings of fact by the Court, as found in the record, cover the material issues in the case, and the general finding that “ all the allegations and averments in plaintiffs’ complaint are true, and that all in the answer are untrue,” is sufficient, and conclusive of all the issues made by the pleadings. (McEwen v. Johnson, 7 Cal. 260; Breeze v. Doyle, 19 Cal. 101.) But it is contended that the fourth (general) finding, “ that all the allegations and averments in plaintiffs’ complaint are true, and that all in the answer of defendants are untrue,” does not cover the issues tendered by the supplemental answer, and that there is an entire absence of any finding upon such issues. The only issues tendered by the supplemental answer are abandonment and forfeiture by plaintiffs of the premises in controversy since the commencement of the suit by virtue of the mining laws of the district.

Pending a controversy in Court involving the right to the possession of the premises as between plaintiffs and defendant, the plea of abandonment or forfeiture tendered by defendant might well have been disregarded by the Court, especially in the absence of any allegation of subsequently acquired rights in the premises by defendant.

A simple abandonment or forfeiture by plaintiffs could not inure to the especial benefit of defendant. But the first special finding of the Court is conclusive upon the issue oi abandonment by plaintiffs. It is as follows: That on or about the 8th day of September, 1862, the plaintiffs above named and their grantors located the six hundred feet upon and along a certain quartz ledge or lode known as Brown’s Valley or Pennsylvania Ledge or Lode, situated at Brown’s Valley, Yuba county, measured off and appropriated the same for mining purposes, and immediately entered into the possession and enjoyment thereof, and have ever since been in the peaceable and quiet possession of said mining claim, so as aforesaid located, appropriated and held by plaintiffs.” * * * And this finding embraces all the tendered issues in the supplemental answer, except that of forfeiture of plaintiffs’ right of possession, by reason of failure to perform the labor required by the rules of the district pendente lite, and this question under the former pleadings and facts, as specifically found, we regard as entirely immaterial in this case, as defendant does not allege any subsequent appropriation of the premises, or newly acquired right therein.

The point that error was committed by the Court in admitting in evidence Pre-emption Book, To. 2, Tuba County, is not well taken. The object and purpose for which this evidence appears to have been offered was to establish the fact that plaintiffs had caused a record to be made of the location of their quartz mining claim in the Recorder’s office of Tuba County, and to furnish evidence tending to establish a custom of the district to record quartz claims at the County Recorder’s office.

Plaintiffs were seeking to establish that, at the time when their quartz claim was alleged to have been located, it was the custom of the Brown’s Valley Quartz Mining District for persons desiring to locate and appropriate a quartz claim to measure off and designate the boundaries of such claim by stakes on the ground, enter upon the same, and cause a record of such location to be made in the County Recorder’s office. Had the record been offered as evidence of the contents of a separate, independent, original notice, it would have been incompetent, whether the loss of such original had been established or not.

Such custom sought to be established by this book would make the entry found therein the original notice, not a record or copy of an independent original.

The objections^ the depositions of Richards and Pearce are not tenable. We see no objection, under our statute, to taking a deposition in a narrative form, instead of question and answer. In this case defendant, though having due notice of the time and place of taking the depositions of witnesses Richards and Pearce, did not appear. ^The caption of the depositions, after the title of the cause, is as follows: “ Depositions of John Richards and James Pearce, witnesses, taken in above case * * * on the part of plaintiff, pursuant to notice and affidavit hereto annexed, at the time and place therein mentioned.” There is but one caption and one certificate to both depositions, nor is it necessary, when the depositions of two or more witnesses are taken in behalf of the same party, under the same notice, at the same time and place, and before the same officer, that a formal certificate of the officer should he appended to the deposition of each witness. In such case one certificate appended at the close of all the depositions on the same paper, or on several sheets of paper securely attached together, if in proper form, may cover each and all.

The statement on motion for a new trial entirely fails to “ specify the particulars ” wherein the evidence is insufficient to justify, or contrary to, the finding, except as to the issue of possession of the mining claims in controversy, and upon this point the evidence is substantially conflicting, hence the finding should not be disturbed by this Court. (Lyle v. Rollins, 25 Cal. 440; Ellis v. Jeans, 27 Cal. 273; Doe v. Vallejo, 29 Cal. 385: Rice v. Cunningham, 29 Cal. 495.)

Judgment and order denying new trial affirmed.