McLean v. Ladewig

The amended complaint herein contains two causes of action; the first being the ordinary suit to quiet title, while the second alleges title by adverse possession. The property involved is an unpatented lode mining claim in the county of Mariposa, known as the “Good Luck Mine”, which was located on February 1, 1892, by J. E. McLean, J. L. McLean and S. B. Ferguson. By mesne conveyances, plaintiff has acquired' all the right, title and interest of the original locators in the property. The defendants claim the southerly portion of the Good Luck Mine by the location of the “Seventeen Fifty Mine”, made by defendant Rae Ladewig on May 22, 1933. Judgment in the court below was for plaintiff and defendants appeal.

The controversy here arises out of the fact that the location notice as posted on the Good Luck Mine, and as recorded in the office of the county recorder in 1892, described

It is plaintiff’s position that the monuments as erected on the ground control over the description and courses as contained in the location notice. Plaintiff claims also by adverse possession, and it is her contention that the evidence establishes an adverse holding by her predecessors and herself for a period in excess of forty years of the area defined by plaintiff’s monuments, and plaintiff argues that such adverse holding dispenses with the requirements of posting and recording notice of location.

The first point made by appellants is that the findings and judgment do not follow the complaint in regard to the description of the property. The amended complaint alleged ownership of the possessory interest in, and possession of “all that certain mining claim known as the Good Luck Mine”. Then follows a reference to the date, of the location, the record thereof, and a more particular description. The judgment decrees plaintiff to be the owner, in possession of and entitled to the possession of the “Good Luck Mine, as described in accordance with the map introduced in evidence and marked Plaintiff’s Exhibit B, and

“The word ‘issue’ as used in this code section is broader than the complaint where the answer enlarges the same by introducing new matter. It is also true that the parties may voluntarily submit and try an issue without any specific pleadings and thus be estopped from complaining thereat after judgment. ’ ’

To the same effect is Freeman v. Gray-Cowan, Inc., 219 Cal. 85 [ 25 Pac. (2d) 415 ].

Appellants question the sufficiency of the description found in the judgment. As already stated, a description by a popular name is sufficient. Furthermore, the particular description in the judgment refers to “the map introduced in evidence and marked Plaintiff’s Exhibit B”. A map so marked is a part of the record herein. Also, reference is made to the monuments erected on the ground. In Newport v. Hatton, 195 Cal. 132 [ 231 Pac. 987 ], the Supreme Court cites 33 Corpus Juris, page 1209, as authority for the declaration:

“That the judgment may be aided by intendments and additional data drawn from the pleadings and other parts of the records, or even, in some cases, by extrinsic documentary evidence.”

The court then says at page 156:

“We do not see how a judgment can be pronounced a nullity for uncertainty of description unless the court can see that nothing is described. Those claiming under it must rely on the description, it is true, but whether or not the description is defective must be tested by rules of evidence ordinarily applied to the subject.”

Permanent improvements may be treated as monuments. (Ha maker v. Pacific Gas & Elec. Co., 59 Cal. App. 642 [ 211 Pac. 265 ].) Parol evidence is admissible to identify the map. (Redd v. Murry, 95 Cal. 48 [ 24 Pac. 841 , 30 Pac. 132 ].)

Plaintiff concedes that the location notice does not describe the Good Luck Mine in accordance with the monuments which at the time of the location were erected on the ground. She contends, however, that such monuments control over the description and courses as contained in the location notice. It is said in 40 Corpus Juris, page 807:

“As a general rule, a mining location is not rendered invalid by a mere variation or discrepancy between the boundaries of a claim as marked on the ground and the courses and distances described in the location notice or certificate. In such a case if the markings on the ground are clearly ascertainable and can be definitely located they will control, as to the location and extent of the claim.”

John E. McLean, one of the original locators of the mine, was a witness in the lower court and testified that on the day preceding the giving of his testimony he had visited the “Good Luck Mine” and identified the point of discovery as made by him in 1892. He described that point of discovery, as well as the south center monument, both of which were found intact, and to be in the location designated on the map introduced in evidence as plaintiff’s exhibit B. The surveyor who prepared the map was present when the witness McLean visited the mine during the trial, and prepared the map with reference to the location of the discovery point referred to by McLean. The surveyor also

Notices of location are to be liberally construed. (McCann v. McMillan, 129 Cal. 350 [ 62 Pac. 31 ]; Carter v. Bacigalupi, 83 Cal. 187 [ 23 Pac. 361 ] ; Mitchell v. Hutchinson, 142 Cal. 404 [ 76 Pac. 55 ].) At 40 Corpus Juris, page 805, it is said in referring to the sufficiency of the location notice:

“If it is made in good faith, it should receive a liberal and reasonable construction in favor of the locator; and if by such construction the language employed in describing the claim, when taken in connection with the markings on the ground and other surrounding circumstances, will enable a reasonably intelligent person to find the claim, and trace its boundaries, and therefore imparts' notice thereof to subsequent locators, it is sufficient.”

We conclude, therefore, that the original location herein was valid and covered the premises described in the judgment.

The contention of plaintiff that title by adverse possession has been established is, in our opinion, sustained.

In Humphreys v. Idaho Gold Mines Development Co., 21 Idaho, 126 [ 120 Pac. 823 , 40 L. R. A. (N. S.), at page 826], it is said:

“It seems to us that the provisions of section 2332 of the Revised Statutes of the United States are intended to obviate the necessity for proof of posting and recording a notice of location in cases where the claimant to mineral ground has been in- the actual, open, and exclusive possession of the ground for a period equal to that required by the local statute of limitations governing adverse possession of real estate.”

It appears abundantly from the evidence here that the plaintiff and her predecessors in title have held and worked the “Good Luck Mine” as described in the judgment for many years in excess of five years. The payment of taxes is not required to establish title by adverse possession (Dalton v. Clark, 129 Cal. App. 136 [ 18 Pac. (2d) 752 ]), and the parties stipulated on the trial that all assessment work had been done.

The evidence seems to us clear that the location in question was established upon a vein or lode of practical value. The witness John E. McLean testified that he had taken several thousand dollars in gold from the mine. The witness Marre described the course of the main vein in the lode. The law does not require that the vein contain ore in paying quantities. It is enough if ore is found and the indications are sufficient to warrant a prudent man in spending his labor and means, with reasonable prospect of success in developing a valuable mine. (Garibaldi v. Grillo, 17 Cal. App. 540 [ 120 Pac. 425 ]; see, also, Springer v. Southern Pac. Co., 67. Utah, 590 [ 248 Pac. 819 ].)

In view of the conclusions which we have reached, it is not necessary to consider the contention of plaintiff that the general rule that the plaintiff must recover on the strength of his own title does not apply here. (Richardson v. McNulty, 24 Cal. 339 ; Bradley v. Lee, 38 Cal. 362 .)

The judgment is affirmed.

Thompson, J., and Plummer, Acting P. J., concurred.