« ForrigeFortsett »
confidence in the correctness of our former ruling. It is unnecessary for us to determine whether there is a sufficient showing to justify us in recalling the remittitur, inasmuch as it would be a vain act to recall it when the proceeding would only result in an adherence to our former ruling on the merits of the appeal.
Appeal from the Seventh District Court, Lake County:
WM. C. WALLACE, Judge. STATE LIEU LAND.-APPLICATION TO PURCHASE
STATEMENT OF FACTS.
On December 14, 1874, Henry C. Boggs, plaintiff, made application, under Sec. 3500 of Title & Pol. Code, to purchase from the State certain Lieu School Lands in Lake County, of which he haul possession and occupancy at the time, and built a steam aw mill and dwelling, barn, stables, etc., -aud 80 held over four years, with an other occupancy or improvement upon it.
The defendant had previously—on October 24, 1871—made affidavit, and application for saine land-(with other land) ander act of March 28, 1868_but he omitted to state as to adverse occupancy and improvements; and was never in possessinn, nor made any improvements. On December 17, 1874, Bogya filed a protest against any title being given to Mullen. Oa January 31, 1876,contest arose, anı defendant demanded a trial in Court, and the Surveyor General referred it to the District Court. Action was brought ander sections 3414 and 3413. Polit. Code, relating to State Lieu lands for 16th and 36th section, Defend. ant demarred, which was overruled April 26, 1876, and the case submitted upon the pleadings, and an agreed statement of facts.
An amendment of April, 1870, had repealed seg. 53, and re-enacted another, of the act under which defendant had made application, and that amendment made nonsense in its reading.
Judgment on March 10, 1877—that plaintiff is entitled to purchase the land, -and costs $27.85.
From this the defendant appealed.
Woods Crawford, and Thos P. Stoney, attorneys for plaintiff and respondont.
John Mullen, and A. P. McCarty, attorneys for defendant; Jom T. Har rington, as attorney, and George A. Nourse as counsel for the appellant.
OPINION BY THE COURT. The appeal is from the judgment alone. There is no bill of exceptions or statement. The judgment roll discloses no error.
(Filed January 10, 1878.) ELLIOTT vs. LEOPARD MINING CO. Appeal from Third District Court, San Francisco. CONTRACT.--COMPROMISE—Held, that a contract for a quarter interest in a
mining claim, upon establishing its title, stands on the same footing as a quarter share of its proceeds in case of a compromise; and upon a par of such proceeds being paid to a third party, he becomes liable for his portion thereof,
OPINION BY THE COURT.
As stated in the complaint, the contract between Bryan, Aude, & Elliott of the one part, and Fisk, Hendy, & O'Malley of the other part, was in effect that if the title of the latter to the mining claim should be established by means of the legal proceedings proposed to be instituted, the said Fisk, Hendy, & O'Malley would convey to Bryan, Aude, & Elliott“ an undivided interest in said mining claims, equal to one-fourth of each thereof;" but “in case the said title to said mining claims should be settled by compromise, the said firm should be entitled to the one-fourth part of the proceeds thereot, or of what might be obtained or realized therefrom.” It is averred that Hearst purchased with actual notice of the contract, and that the Leopard Mining Company also had notice of it before and at the time of the compromise. It is contended for the defendants that the contract, as thus stated, created no specific interest in Bryan, Aude, & Elliott in the proceeds of the compromise as such ; and that in legal effect it amounted only to a personal covenant by Fisk, Hendy, & O'Malley to account to Bryan, Aude, & Elliott for one-fourth of the proceeds of the compromise after they should have been reccived. Hence it is argued that the only remedy of the plaintift is by a personal action against Fisk, Hendy, & O'Malley sor a breach of the covenant. But we think this construction of the contract, as it is stated in the complaint, is too narrow. As we construe it, it was intended in case of a compromise, that the interest of Bryan, Aude, & Elliott in the proceeds should stand precisely on the same footing as their interest in the mining claims would have occupied had the title been established in the courts. In other words, as soon as the compromise was effected, Bryan, Aude, & Elliott became entitled to a direct, immediate and specific interest of one-fourth of the proceeds in specie, and were entitled to demand the same directly from the Leopard Mining Company, and a portion of the proceeds having been paid to Hearst, he became liable to account to the plaintiff for his proportion thereof. Nor is there any misjoinder of causes of action, or non-joinder or misjoinder of parties plaintiff or defendant, nor do we discover anything ambiguous, uncertain or unintelligible in the complaint.
Judgment reversed and cause remanded, with an order to the Court below to overrule the demurrer to the complaint. Remittitur forth with.
L. Aldrich, and J. B. Mhoon, attorneys for plaintiff and appellants.
Stewart & Greathouse, and Garber & Thornton, attorneys for defendant and respondent.
[Filed February 8, 1878.]
GLASSCOCK vs. ASHMAN. Appeal from Thirteenth District Court, Tulare County. REVERSAL OF DECISION.—REHLARING DENIED.
OPINION BY THE COURT. On a cross appeal in this case by the plaintiff, we decided, at the last term, after full argument that the Court had failed to find upon material issues, raised by the pleadings, and reversed the judgment, and remanded the cause with directions to find upon the omitted issues, and thereupon to enter judgment upon the findings. That judgment has now become final, and it is proper to render the same judgment on this appeal.
It is therefore ordered that the petition for rehearing be denied, that the opinion and judgment of this Court heretofore rendered be set aside, and it is further ordered that the judg. ment of the Court below be reversed and the cause remanded with the same directions as on the plaintiff's appeal.
W. W. Cross, attorney for plaintiff and appellant. Brown & Daggett, and Sayle & McElvaney, attorneys for defendant and respondent.
Supreme Court Unwritten Opinions.
(April Term 1878.]
[3794. - Decided April 19, 1878.)
Defendants and Respondents
Appeal from Eighteenth District Court, San Bernardino Co.
W. T. McNEALY, Judge. EJECTUENT-- DANAGRS- LOCATION OF MINING CLAIM.–Plaintiff sues to reo
cover possession of a certain mining claim and damages for the extraction of ores and injury thereto
STATEMENT OF THE CASE The Clark Mining District was organized in San Bernardino County on July 19th, 1869, at a miner's meeting held that day, and laws governing the district were duly made and adopted. On January 6, 1879, amendments to the Rules, etc., were made as follows: “
owing to difficulties experienced by miners of this district in procuring a sufficient supply of miners' tools, etc., etc, caused by the great distance to any point where such necessaries may be had, that no claims in this District will be subject to re-location for the next six months from the date of this meeting."
On February 18, 1872, one J. S. Alley for himself and McFarlane, discovered and located the claim in dispute and marked out boundaries and posted a proper written notice of their location and claim. Alley and McFarlane immediately went into possession, performed about $300 worth of work and continued so to work annually up to the time of entry of plaintiff, the work performed consisted of a tunnel and shafts. On December 13, 1875, plaintiff and one A. S. Sutliff without consent of defendants, entered into possession of said claim near the mouth of the tunnel therein, made a stone monument and thereon placed notice of location.—Plaintiff made no
other monuments or marked any boundaries whatever. Plaintiff was in possession from December 13, 1875, until September 25, 1876, when defendant re-entered and took possession and has held it ever since.
Jndgment for defendants and plaintiff taxed for costs of suit. Motion for new trial filed May 8, 1877.
Plaintiff alleged insufficiency of evidence, errors of law excepted to by plaintiff during trial, and newly discovered evidence. Motion was denied Angust 3, 1877. Appeal was taken from said order and judgment August 13, 1877.
Judgment and order affirmed.
Curtis & Otis and C. W. C. Rowell, attorneys for plaintiff and appellant.
Waters & Swing, attorneys for defendants and respondents.
[No. 5840.----Decided April 10, 1878.)
JNO. F. PLAYER and I. R. LANDSALE, Deft. and App’. Appeal from Second District Court, Tehama County,
W. T. SEXTON, Judge.
STATEMENT OF THE CASE. This was an action brought April 7, 1877, to recover for 30 certain valuable sheep, which plaintiff charges that defendant drove away on September 25, 1875, and scattered, and lost, and damaged, and sheared; and claims an aggregate damage of $3,500. On motion of plaintiff's attorney, the defendant Landsdale was dismissed from the action. Jury waived, and Court found that eight sheep and the buck were not recovered, and worth $1,000;-that twenty others were sheared while gone, and the wool worth $61.20; and a damage of $100 by their running with other poor sheep, with disease, etc.
Defendant moved a non-suit, which was overruled. Judgment for plaintiff, for $1,161.30, and costs, on April 12, 1877.
Motion by defendant for a new trial, and denied July 19th; and appeal taken August 15, 1877. Judgment and order now affirmed.