Duryea v. Boucher

California Supreme Court

Duryea v. Boucher

7 P. 421, 67 Cal. 141, 1885 Cal. LEXIS 580

CourtCalifornia Supreme Court

DecidedJune 23, 1885

DocketNo. 8754

StatusPublished

Cited by4 cases

This text of 7 P. 421 (Duryea v. Boucher) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duryea v. Boucher, 7 P. 421, 67 Cal. 141, 1885 Cal. LEXIS 580 (Cal. 1885).

Pincite

Opinion

Thornton, J.

We think that the location of the mining claim by plaintiffs in July, 1876, was made in accordance with law, and included the ten acres in controversy. The notice as recorded and posted was sufficient. It described the land by the adjoining tracts on the north, east, and south, and on the west by unoccupied lands. As the claim was for thirty acres, its boundary on the west could be easily determined. It makes no difference that the wrong legal subdivisions are inserted in the notice. These may be rejected as false where the remaining . description sufficiently identifies the land, in accordance with [143]*143the maxim falsa descriptio non nocet cum de corpore constat. (Broom’s Legal Maxims, 605; 1 Greenleaf Ev. § 301.) The rule may be thus stated: As soon as there is an adequate and sufficient description, with convenient certainty, of what is intended to pass by the particular instrument, an erroneous addition will not vitiate it. So much of the description as is false will be rejected, and the instrument will take effect, if a sufficient description remain to ascertain its application, ‘the court finds that the plaintiffs did work on the land in dispute and there is evidence to support it.

It is urged that the finding of the court below as to the location of the defendants Gleason and O’Neil, of the ten acres in controversy, is contrary to the evidence, inasmuch as the ten acres are described in the finding as being in the southwest quarter of section 13, T. 5 N., R. 11 E.; that the evidence shows beyond dispute that the tract of ten acres is in the southeast quarter, and therefore the finding is not sustained by the evidence. But the other findings, which are sustained by the evidence, and the conclusions of law which are properly deduced, show that the plaintiffs are entitled to a judgment in their favor if the description of the land in the finding was, as it should be, the southeast quarter. Under such circumstances the cause should not be sent back for a new trial.

Judgment and order affirmed.

Sharpstein, J., and Myrick, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Thornton, J.

We think that the location of the mining claim by plaintiffs in July, 1876, was made in accordance with law, and included the ten acres in controversy. The notice as recorded and posted was sufficient. It described the land by the adjoining tracts on the north, east, and south, and on the west by unoccupied lands. As the claim was for thirty acres, its boundary on the west could be easily determined. It makes no difference that the wrong legal subdivisions are inserted in the notice. These may be rejected as false where the remaining . description sufficiently identifies the land, in accordance with [143]*143the maxim falsa descriptio non nocet cum de corpore constat. (Broom’s Legal Maxims, 605; 1 Greenleaf Ev. § 301.) The rule may be thus stated: As soon as there is an adequate and sufficient description, with convenient certainty, of what is intended to pass by the particular instrument, an erroneous addition will not vitiate it. So much of the description as is false will be rejected, and the instrument will take effect, if a sufficient description remain to ascertain its application, ‘the court finds that the plaintiffs did work on the land in dispute and there is evidence to support it.

It is urged that the finding of the court below as to the location of the defendants Gleason and O’Neil, of the ten acres in controversy, is contrary to the evidence, inasmuch as the ten acres are described in the finding as being in the southwest quarter of section 13, T. 5 N., R. 11 E.; that the evidence shows beyond dispute that the tract of ten acres is in the southeast quarter, and therefore the finding is not sustained by the evidence. But the other findings, which are sustained by the evidence, and the conclusions of law which are properly deduced, show that the plaintiffs are entitled to a judgment in their favor if the description of the land in the finding was, as it should be, the southeast quarter. Under such circumstances the cause should not be sent back for a new trial.

Judgment and order affirmed.

Sharpstein, J., and Myrick, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

7 P. 421, 67 Cal. 141, 1885 Cal. LEXIS 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duryea-v-boucher-cal-1885.

Opinion

Related

Cite This Page — Counsel Stack