Schlageter v. Cutting

This action was brought by plaintiffs to recover from defendant the sum of $2,500, alleged to be due under the terms of a certain written agreement. The case was tried by the court, without a jury, and judgment went for plaintiffs, as prayed. Defendant appeals.

On October 5, 1928, the plaintiffs as parties of the first part, and defendant as party of the second part, executed a certain instrument designated by its terms as an agreement of lease and option to purchase. It might be here noted that another party was associated with defendant in the beginning, but inasmuch as defendant had acquired all of the right, title and interest of his associate prior to the events surrounding the present controversy it is conceded here that the latter has no interest in the proceedings. Therefore, further reference to this feature of the agreement will be omitted and the discussion which follows will include only the parties to the action.

The salient parts of the agreement may be epitomized as follows: “The parties of the first part hereby lease to the parties of the second part, . .■ . the following described mining ground with an option to purchase same, on the terms and conditions herein set forth.” The property referred to consisted of two mining claims described as: “The Patricia Mining Claim located in Quartzburg Mining District, Mariposa County, California, and recorded in Yol. 3 of Quartz Records, Mariposa County at page 333 and the Charles Mining Claim located in said district and same county and recorded in Yol. S, at page S.” {sic), the claims being further described as adjoining claims. The parties of the first part guaranteed immediate and undisturbed possession for a period of two years from date of agreement and agreed further to place in escrow a good and sufficient deed for said mining ground made to parties of the second part within six months from the date of agree

Under this agreement defendant entered upon the property and did commence active mining, embracing exploration and extraction and such development work as the agreement required. On May 1, 1929, defendant was still in possession of the property and in compliance with the agreement delivered to the escrow-holder the sum of $2,500 by check, which was subsequently reduced to cash and still remains with the said depositary. As will be noted from the terms of the instrument the parties of the first part were to place in escrow a good and sufficient deed conveying the property to the parties of the second part within six months after the date of the agreement. This provision would require that the deed be so deposited on or before April 5, 1929. It is conceded that the deed was not deposited until May 22, 1929, or thereabouts. No point is made on this delayed deposit, excepting in a rather perfunctorily inclusive way. Appellant here concedes that if the deed deposited meets the requirements of a good and sufficient deed the question of the delay is unimportant. In any event, the record discloses that all parties acquiesced in the delay and appellant made his payment to the escrow-holder, to be held until the deed was deposited. Clearly, under the record before us, the date of delivery becomes unimportant, inasmuch as appellant remained in possession of the property, continued operating the same and suffered no loss, directly or indirectly, through the failure of respondents in this respect. After the deposit of the deed, appellant refused to permit the release of the

Appellant, in seeking a reversal of the judgment, urges several grounds which will be taken up in the order presented. First, appellant argues that the instrument in question was nothing but a mere option to purchase and was so found by the trial court; that the option was never exercised and therefore no cause of action exists against him. It is true that in the pleadings the agreement is denominated an agreement for the purchase and sale of certain property, but as a part of the allegation the agreement is pleaded in liase verba. Therefore whatever designation the parties might choose would not limit the terms of the instrument. The writing itself shows the nature of the agreement, and from that writing it is obvious that while an option to purchase was given appellant, yet also the instrument is in the nature of a lease having a fixed term, with regular payments reserved at stated intervals. These payments were independent of the purchase, though in. the exercise of the option by final payment all intermediate payments would be credited upon the total price. The terms of the lease provided that appellant should operate the property and from the ores extracted should pay respondent fifteen per cent of the gross values of all ores extracted, and that should appellant determine to exercise the option contained in the lease then all such payments as royalties should be applied on the stipulated purchase price. Yet irrespective of the royalties, there were certain definite payments provided for, upon which payments possession of the premises was conditioned. Whether these payments were in the nature of an exercise of the option to purchase or in the nature of rental under the terms of the lease could be determined only after the final payment had been made. It seems clear that if appellant had remained in possession and had made the first two payments and thereafter decided • that he would not exercise the option by payment of the final installment, in which event there could have been no sale, the first two payments could not be classed as payments on the purchase, but rather as rental under the lease. On the other hand, appellant under his option was privileged to exercise the

It is argued- that the Charles Mining Claim is not a full claim. In other words, that the ground embraced in the Charles Mining Claim does not embrace the usual twenty acres; that it is not 1500 feet long and 600 feet ■ wide. This contention is based. upon the wording of the location notice, which reads: “Commencing at a shaft . . . and running from said shaft ... a distance of 750 feet in a Northerly direction and thence in a Southerly direction 750 feet to a stake.” It is obvious that this description would take in only 750 feet of the lode, inasmuch as the second call was merely a retracing backward of the first line. We deem it unnecessary to go into any elaborate discussion of the rules governing construction of certificates of location. It is conceded that these notices are liberally construed and are to be read as a whole. If there are conflicting calls, it is of no consequence if there remain enough in the notice of location to identify the ground appropriated. The entire subject is discussed in Lindley on Mines, third edition, volume 2, section 379. The further description contained in the location notice would serve to identify the ground in any event. After the words quoted hereinbefore, the notice reads: “to a stake in mound of rock at each end

Appellant next argues that the Patricia Mining Claim did not exist at all and that there was no valid location of the ground attempted to be embraced within the location. The description of the claim is as follows: “Commencing at the Northwest center monument of the Charles Mine and running in a Northwesterly direction 1500- feet along the course of vein, lead or lode, to a stake. . . . The corners and side lines of said vein are distinctly marked so that the boundaries can be readily traced. Said location being situated in Sec. 19, Twp. 4 South, Range 17 East and is on the Easterly slope of Bear Valley Mountain about 2 miles Northwesterly from the town of Bear Valley, and being the Northwesterly Extension of said Charles Mine and was formerly known as the Golden Gate Mine.” Appellant contends that there can be no such point as the northwest

Next, appellant claims that there was no discovery sufficient to support the location of the Patricia, the location therefor being invalid. His argument goes to the effect that the discovery must be at the point of commencement or near thereto, and that the point of commencement being on the end line of located ground there is no unappropriated ground available for discovery. If the locator had made his discovery within two feet or two inches of the end line of the Charles Mining Claim he surely could adopt the monument of the latter claim as descriptive of his point of commencement. In any event, he is entitled to 1500 feet of the lode or vein discovered and if the north end line of the Charles Mining Claim intersected the vein we see no reason why he could not make his discovery within a thousandth part of an inch from this line, and monument his claim, and describe its boundaries, by accepting the monument of the Charles Claim as his point of commencement.

Passing this point, appellant then urges that, irrespective of the place of discovery, there was in fact no actual discovery made at any time or at any place upon the Patricia Claim. The only direct testimony in the record is that of

The foregoing disposes of the principal points urged by appellant. His attack upon the sufficiency of the deed seems to be on the theory that the deed in question is a mere quitclaim deed. Without passing upon the sufficiency of such a deed to convey title to unpatented mining claims, it will suffice to say that the deed before us is not a quitclaim deed. True, the words of conveyance include the term “quitclaim”, but the full wording of the phrase of conveyance is “grant, bargain, sell, remise, release, and forever quitclaim”, which. phrase embraces every idea of transfer without warranty. And incidentally the deed runs to the heirs of the grantee. It is only essential that a deed or conveyance should use the word “grant” to convey an estate in fee simple absolute. (Northwestern Pac. R. Co. v. Humboldt Milling Co., 186 Cal. 599 [ 200 Pac. 9 ].) In the transfer of unpatented mining claims it is always to be borne in mind that the paramount title rests in the sovereign, the right of the holder or owner being classed for all purposes as the fee, subject to defeasance through failure to comply with the statutory regulations governing. In the deed before us, the grantors have conveyed absolutely whatever right or claim they may have had to the premises and in addition thereto quitclaimed their defeasible right. We think the deed sufficient to convey the entire title of the grantors, which title we have found to be a good and marketable title based upon valid locations.

It is also urged that the findings of the trial court are not responsive to the pleadings in that there is no finding on the allegations of the cross-complaint of appellant. The said cross-complaint was but a repetition of the allegations of a counterclaim interposed upon which complete findings were made. It would be an idle thing to require a repetition of the findings on the allegations of the cross-complaint, inasmuch as the findings made completely disposed of the same issues.

Appellant throughout strenuously argues that if we determine that the judgment should be affirmed then it must follow that plaintiffs’ only right to the money involved is conditioned upon appellant’s exercise of the option, and that if the option was exercised then appellant was entitled

The evidence is in conflict as to the actual departure of appellant from the property. However, there is sufficient in the record to indicate that, instead of appellant being put off the property, he left because he was afraid he would not be put off. The evidence sufficiently shows that respondents, upon their failure to obtain the money, repeatedly demanded that appellant release the same; that appellant refused to do so upon the claim that the locations were invalid as hereinbefore set forth. On June 7th, in a final effort to get the money, respondents informed appellant that if there were no release they would “close him up”, to which appellant replied that he did not care what respondents did. Appellant in this connection testified that he could not afford to be tied up with any lawsuit and that upon the threat of respondents to close him up, he pulled out his machinery and left the property. We think this falls short of an eviction or even of a threat to evict. A reasonable

The judgment is affirmed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 3, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 2, 1931.