Stock v. Plunkett

183 P. 667, 181 Cal. 193, 1919 Cal. LEXIS 339

Opinions

WILBUR, J.

A transfer to this court was ordered in the above cause, after an affirmance of the judgment of the superior court by the district court of appeal for the third appellate district.

The action is an ejectment, involving a contest arising between two locators of a quartz mining claim. The respondent, the first locator, posted an undated notice upon the property on November 13, 1914. The appellants, the subsequent locators, saw such notice before posting their notice of location, observed that it was undated, and base their claim to the property upon the proposition that the notice in question failed to comply with section 1426 of the Civil Code, which requires a location notice to be posted upon a quartz claim, containing, among other things, the date of location, and upon the further assertion that the prior locator did not within thirty days after the posting of his notice of location cause a true copy thereof to be recorded in the office of the county recorder of the county in which the quartz claim was situated, as required by the provisions of section 1426b of the Civil Code. It is conceded that the prior locator fully complied with the laws of the United States pertaining to such location. The only question in the ease is the effect of the failure to comply with the provisions of our Civil Code requiring the posting and recording of a dated location notice. The subsequent locators were informed by the posted location notice of the prior claim of the respondent and the extent thereof. ' By inquiring of the respondent, whose name was signed to the notice, they could have ascertained the nature of his claim and the date of his location. Consequently appellants are charged with knowledge thereof. (Civ. Code, secs. 18, 19.) [1] The laws of the United States with reference to the location of mining claims expressly recognize the validity of local mining regulations and customs governing locations, and state statutes are construed to have the same force and effect as such regulations. (Daggett v. Yreka Mining Co., 149 Cal. 357, [86 Pac. 968]; U. S. Rev. Stats., secs. 2318-2320, 2324, [Comp. Stats., secs. 4613-4615, 4620]; Clason v. Matko, 223 U. S. 646, [56 L. Ed. 588, 32 Sup. Ct. Rep. 392, see, also, Rose's U. S. Notes].) The question involved here is whether respondent’s location, which conforms to the requirements of the United States statute, but fails to conform to the state statute, is valid as against subsequent locators who have seen and read the location notice. This is- a federal question and the principle involved has been passed upon by the United States supreme court (Yosemite Min. Co. v. Emerson, 208 U. S. 25, [52 L. Ed. 374, 28 Sup. Ct. Rep. 196, see, also, Rose's U. S. Notes]; Butte & Superior Copper Co., Ltd., v. Clark-Montana Realty Co., 249 U. S. 12, [63 L. Ed. 447, 39 Sup. Ct. Rep. 231]), and by the circuit court of appeals of this circuit (Butte & Superior Copper Co., Ltd., v. Clark-Montana Realty Co., 248 Fed. 609, [160 C. C. A. 509]). The decisions of the former are binding on this court and those of the latter are entitled to great weight in determining such federal question.

The supreme court of the United States since the decision of the district court of appeal in this case, in Butte & Superior Copper Co., Ltd., v. Clark-Montana Realty Co., supra, has held that subsequent locators, having knowledge of the previous location, could not avail themselves of defects in the prior location, and in so holding declared that it was unnecessary to determine which was correct—the decisions of the Montana supreme court, holding that the defect in question, a failure to comply with the state law in reference to the recordation of a certificate of location, invalidated the location, or the rule announced by the district court (Clark-Montana Realty Co. v. Butte & Superior Copper Co., Ltd., 233 Fed. 547) and affirmed by the circuit court of appeals of the ninth circuit (Butte & Superior Copper Co., Ltd., v. Clark-Montana Realty Co., 248 Fed. 609, [160 C. C. A. 509]) in the same case, declining to follow the Montana supreme court. The decision of the district court and its affirmance by the circuit court of appeals in the last-mentioned case were based upon the rule that where the local statute failed to expressly declare the invalidity or forfeiture of a location which did not conform to the state law, a failure to comply therewith did not work a forfeiture. While the United States supreme court refrained from deciding this point, its decision in that case determines the proposition that such location, even though failing to comply with the state law, was good as against a subsequent locator, having notice thereof. This is made clear by the following statement in the opinion: “The district court and the circuit court of appeals affirming it decided both issues against appellant on the grounds: (1) That the Montana cases did not furnish the rule of decision for the federal courts, the better reasoning being (for which cases were cited) that as the Montana statute did not .impose a forfeiture, hence none resulted from defects in the declaratory statement of the Elm Orlu. (2) That the Elm Orlu people (the first locators) were in possession of their claim, working the same—of which the Black Rock people (the second locators) had knowledge, and that hence the latter could not avail themselves of the defects in the location of the Elm Orlu. Yosemite Min. Co. v. Emerson, 208 U. S. 25, [52 L. Ed. 374, 28 Sup. Ct. Rep. 196, see, also, Rose's U. S. Notes], was adduced. In the latter ground'we concur, and we need not express opinion of the other, although it has impressive strength and was conceded to have in Yosemite Min. Co. v. Emerson. . . . Yosemite Min. Co. v. Emerson was concerned with a regulation of the state of California which prescribed the manner of the location of a claim. The regulation had not been conformed to and the validity of the location was attacked on that ground by a subsequent locator who had had notice of the claim, he contending that there was forfeiture of it. The contention was rejected and we said that to yield to it would work great injustice and subvert the very purpose for which the posting of notices was required, which was, we further said, ‘to make known the purpose of the discoverer to claim title to the’ claim ‘to the extent described and to warn others of the prior appropriation. ’ The comment is obviously applicable to the asserted defects in the declaratory • statement of appellees. It, like the California requirement, had no other purpose than ‘to warn others of the prior appropriation’ of the claim, and such is the principle of constructive notice. ' It—constructive notice—is the law’s substitute for actual notice, and to say that it and actual notice are equivalents would seem to carry the self-evidence of an axiom. Besides, in this ease there was an unequivocal possession of the Elm Orlu and it is elementary that such possession is notice to all the world of the possessor’s rights thereunder.” The case of Yosemite Min. Co. v. Emerson, 208 U. S. 25, [52 L. Ed. 374, 28 Sup. Ct. Rep. 196, see, also, Rose's U. S. Notes], thus referred to by the supreme court of the United States, was a decision rendered on a writ of 'error from this court. The question involved was the validity of a location where the locator had posted only one notice at one end of a claim, while the local mining regulations of Tuolumne County required the posting of two notices, “one of which shall be posted in a conspicuous place at each end of the claim.” This court held upon the first appeal of that litigation (Emerson v. McWhirter, 133 Cal. 510, [65 Pac. 1036]) that in the absence of an express declaration in the mining rules that such failure worked a forfeiture of the mining claim, it would not have that effect. The case having been reversed, it was retried and again appealed 'to .this court, after substitution of parties, and it was held that this decision had become the law of the case. (Emerson v. Yosemite Gold Min. & Mill. Co., 149 Cal. 50, [85 Pac. 122].) The supreme court of the United States upon the writ of error declined to pass upon the question of whether or not the failure to comply with the local mining regulations invalidated the location, holding that that question was immaterial in view of the knowledge of the subsequent locator of such defective location. [2] It follows from these decisions of the supreme court of the United States that the appellants herein having seen and read the prior location notice of the respondent cannot take advantage of the fact that such notice was undated, or of the fact that it was not recorded. It is claimed, however, that whatever the view of courts of other jurisdictions, our own court has affirmatively decided in Dwinnell v. Dyer, 145 Cal. 12, [7 L. R. A. (N. S.) 763, 78 Pac. 247], that a failure to comply with a law of this state with reference to location notices invalidates such location. Even if this were true, we would be bound to follow the decisions of the supreme court of the United States. The case of Dwinnell v. Dyer dealt with mining locations that had been made under the statute of 1897, regulating the posting and recordation of a mining location notice (Stats. 1897, p. 214), which expressly provided that locations which did not conform thereto were void. (Id., sec. 6.) While that provision of the statute is not specifically pointed out in the decision, it is evidently the basis of the assumption by the attorneys and by the court that locations which failed to conform to the state statute were void. Previous to the enactment of this statute this court had held in Donahue v. Meister, 88 Cal. 121, [22 Am. St. Rep. 283, 25 Pac. 1096], decided in 1891, and Emerson v. McWhirter, supra, decided in 1901, that a failure to conform to a local regulation with reference to the manner of making a location, in the absence of a rule declaring a forfeiture for such failure, did not render it invalid, and could not be taken advantage of by a subsequent locator having knowledge of the actual location. We had. albo held in Webb v. Carlon, 148 Cal. 555, [113 Am. St. Rep. 305, 83 Pac. 998], decided in 1906, involving a location made after the repeal of the statute of 1897, that a failure to comply with a mining rule which required the record of a mining location in Tuolumne County, did not invalidate the claim by reason of an erroneous date (the notice having been posted October 20th but dated October 23d), as against one who located the claim October 22d, although under section 2324 of the Revised Statutes of the United States it was required that records of locations when made should contain the date .of the location, etc. It should be noted also that the legislation of 1909 is essentially different from that of 1897, in that the law of 1909 did not, and the law of 1897 did, declare a forfeiture for a failure to comply therewith. Furthermore, in view of the fact that previous to the enactment of sections 1426 et seq. of the Civil Code in 1909, this court had held that a failure to conform to mining rules governing a location did not invalidate the location when the rule did not expressly so declare (Emerson v. McWhirter, 133 Cal. 510, [65 Pac. 1036]), and that the United States circuit court of appeals of this district had, in effect, adopted the same rule, of decision (see Butte & Superior Copper Co., Ltd., v. Clark-Montana Realty Co., 248 Fed. 612, [160 C. C. A. 509], and cases cited); and that this court had held that such failure did render a location invalid where the local rule or statute did expressly declare such invalidity (Dwinnell v. Dyer, supra); and that the United States supreme court had concurred in that view in Butte City Water Co. v. Baker, 196 U. S. 119, [49 L. Ed. 409, 25 Sup. Ct. Rep. 211], a case from Montana; see, also, Clason v. Matko, 223 U. S. 646, [56 L. Ed. 588, 32 Sup. Ct. Rep. 392, see, also, Rose's U. S. Notes], decided in 1912), the fact that the legislature did not expressly declare that a failure to comply with its new regulations concerning mining locations would invalidate such locations is conclusive that no such result was intended.

As the point involved in this case is thus covered by our own and by authoritative decisions of the supreme court of the United States, it is unnecessary to discuss or consider the numerous cases cited from other states, or federal courts.

It follows that the location notice of the respondent, even though undated, was sufficient to establish his rights against the appellants—subsequent locators having notice of the prior location. 0

The judgment is affirmed.

Shaw, J., Lennon, J., Lawlor, J., Melvin, J., and Angellotti, C. J., concurred.