Pharis v. Muldoon

17 P. 70, 75 Cal. 284, 1888 Cal. LEXIS 530

Opinions

Foote, C.

—Action to quiet title to a mining claim. It is found by the court, and assumed by counsel upon both sides, that the claim of the defendant was not open to relocation until January 1, 1886.

At one o’clock, a. m., of that day, plaintiff posted his notice, but did not mark out his boundaries until January 5th. In the mean time, that is to say, at the usual hour of commencing work of that kind on the first day of January, 1886, the defendant resumed labor on his claim, did ten dollars’ worth of work on it up to the 5th of January, 1886, and afterward, during that year, performed labor upon it to the amount of two hundred dollars more.

The marking of boundaries is a necessary part of the location (Newbill v. Thurston, 65 Cal. 419), and this was not done until January 5, 1886; the defendant had resumed work “after failure and before location.” This being the case, the plaintiff’s proceedings conferred no right upon him (Belcher Con. G. M. Co. v. Deferrari, 62 Cal. 163), even if we concede, what we are not prepared to admit, that an entry by stealth at one o’clock in the morning is within the contemplation of the act of Congress (sec. 2324, Eev. Stats. U. S.). The other points' made require no special notice.

It results that the judgment should be affirmed.

Hayne, C., and Belcher, C. C., concurred.