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the very subject of the entry is not designated in the entry, but by the subsequent election of the enterers. Had the defendants gone to the plaintiff's themselves for information as to the land they meant to take up (if they had been under any obligation to do so in any case), the inquiry would have been unavailable in this case; for the plaintiffs did not then kuow how they would have their survey made. They could only have answered the defendants that they must wait their pleasure to select the land so as, in effect, to stop all entering after the first in a neighborhood, until the title on that is completed.
But the defendants were not at all obliged to make any ap. plication to the plaintiffs on the subject. Where one is buying a legal title and has notice that a person claims an eq. uity therein, he must take care in due time to ascertain the 'nature and extent of the claim. But that does not apply in a case of this sort; for an enterer has no equity or collateral claim independent of the entry itself, if the case still stards on the entry, and therefore the entry onight to give the requisite information; or at all events, the enterer ought without delay to supply its defects by an actual survey, setting apart the land entered. Then an entry, made by one with knowledge of the survey as well as of the entry, would be mala fide, and convert the party into a trustee. It is unquestionable, however, that these defendants did not and could not know or guess that they were encroaching on the plaintiff's' entries. For, independent of the disputes as to the point intended and understood by different persons as the beginning, according to the present call for “Lowe's bear-pen,” it is certain that the entry as actually written in the entry book, when the defendants entered, called for “the Locust bear-pen," which was five miles from the nearest point of the defendants' grant.. Indeed, if the call therein had been “Lowe's,” and not "Locust,” it would still have been impossible for the defendants by any experimental lines to have first left the land for the plaintiffs before they took that for themselves. The defendants, therefore, intended no wrong to the plaintiffs and did them no wrong. The whole wrong was with the plaintiff's themselves in not getting such knowledge of the land as to be able to give a sufficient description of it in the entry, and then in delaying to identify it by a survey, so as by notice of it to affect the conscience of the defendants.
Therefore, the bill must be disinissed with costs.
JOHNSON ET AL. y. PARKS ET AL.
(10 California, 446. Supreme Court, 1858.) Interest of witness. In a suit to recover a mining claim which had been
conveyed to the plaintiff by quitclaim deed, an objection that the plaintiff's grantor is an incompetent witness on the ground of interest,
is not well taken. Location-Mistake in course of vein. A misdescription in the notice of
a claimant of a quartz lode posted up near the premises, in compliance with the mining laws of the district in which the lode was situate, calling for the vein in a south-westerly direction, when, in fact, the vein, as afterward ascertained, ran nearly due south, the lode being under ground and undeveloped, will not vitiate the claim. The thing intended to be taken up was the vein, and its exact direction could not, of course, be ascertained or accurately described until the vein was followed up or
explored. Questions of abandonment and prior location are peculiarly appropriate
to the jury, and where they have been fairly submitted the action of the jury will not be reviewed. Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.
This was an action of ejectment, brought to recover possession of a quartz lead. The complaint was sworn to and establishes the fact that plaintiffs liad previously tried the question by action of trespass in a jnstice's court and obtained a verdict. A verdict was also rendered for plaintiffs in the ejectment suit in the district court. Defendants appealed.
The facts necessary to understand the points decided appear in the opinion of the court.
E. F. HUNTER, for appellant.
The court erred in permitting the witnesses, Putoff and Waterson, to testify on behalf of the plaintiffs.
They were the vendors of plaintiffs and at the time of sale, the defendants were in the possession of the mining claim holding adversely, and their vendors, the witnesses, sold, “ to keep from having a lawsuit with the defendants.”
In other words, they sold to the plaintiffs, who were ready to carry on a lawsuit, and the inference is, willing, provided they would have the testimony of their vendors in order to sustain the title purchased.
The title to, or in, a mining claim is purely possessory, and is regulated by priority of possession and conformance with the rules and regulations in force at the particular locality.
The defendants at the time of sale were in possession, claiming adversely, and the evidence shows by priority of location, by a subsequent possession, and working the claim after an express abandonment by plaintiffs' vendors; and further, that plaintiff's' vendors never had located the claim in dispute, but another claim running, or supposed to run, in a different direction.
The testimony of the witnesses as allowed, went to prove a prior location on their part, to rebut the evidence of various disinterested witnesses, to wit: Radcliff, Carroll, Wade, Flecher and Dyer, that they had abandoned; and even further, to contradict the express terms of their location, as evidenced by their notice.
2. The court erred in giving the instruction asked by the plaintiff.
Barber, for respondent.
1. The first point made by appellant is, that the court erred in permitting the vendors of plaintiffs, under a quitclaim deed, to testity as witnesses in their behalf. No authority is cited for this novel legal proposition, in direct conflict with the simplest rules of evidence.
“ A former vendee, who has sold withont warranty, is competent to prove a title.” (Busby v. Greenslade, 1 Strange,
. , 445.)
"Avendor with warranty against his own acts and those claiming under him, is a competent witness for his grantee in ejectment against one who does not claim under those to whom the warranty extends.” (Connelly v. Chiles, 2 A. K. Marsh. 213.)
As to the charge asked by plaintiffs and given by the court we confidently leave it to the decision of this court, as containing a correct exposition of the law applicable to such cases.
The charge asked for by plaintiffs' counsel claimed this lead only in case the jury should believe, at the time of locating the same, “ that the true direction of the lead, so struck by Sonlsby at the time of posting their notice, was not known and could not readily be traced.”
The jury by their verdict have shown their belief in the fact that at that time the direction of the lead was not known, and could not readily be traced, and they certainly were the proper judges of that fact.
Baldwin, J., delivered the opinion of the court, Terry, C. J., and Field, J., concurring.
This was a suit for the recovery of a mining claim. Varions errors have been assigned by the appellant, none of which, it seems to nis, are well taken.
The vendors, who had sold to plaintiff hy quitclaim deed, were called by plaintiff and objected to as incompetent, on the ground of interest; but it is well settled on principle and authority that the objection is not good.
It is also objected that several leading questions were permitted to be asked of a witness; but if this were a reviewable error, if the record warranted the point, it is not, in this instance, well founded in fact.
The only question deserving of consideration arises from an instruction of the court, as follows:
“That if the jury believe from the evidence, that just after the discovery of the lead by Soulsby and on his information, the Putoff claim was located, and his notice posted to the south ofand immediately adjoining the Soulsby claim, and that the then direction of the lead so struck by Soulsby, at the time of posting such notice was not known and could not readily be traced; and if the jury believe further, that Putoff intended by such notice to take up a claim on the lead which Soulsby had struck, and located his claim to the southward of the Soulsby claim, the part of the notice, supposing the vein to run in a southwesterly direction, instead of nearly due sonth, would make no difference, and he would be entitled, on otherwise complying with the quartz-mining law, to hold the number of feet allowed by law on that lead, whether such lead lay in a southwesterly direction froin the spot where Sonlsby first struck it, and by whatever name it might be called."
It seems by the mining laws and regulations of the neighborhood, the locator of a quartz lead has a right to a lead taken up by him for a distance of nine hundred feet, upon complying with certain rules, one of which is, that he shall post up. notice near the premises, stating his claim. A portion of this claim was undeveloped and underground. The vein ran as subsequently ascertained, in a different direction from that given in the notice. The defendant claims by a location sub). sequent to plaintiff's, on the undeveloped portion of the vein, which was out of the direction indicated in the notice. We think that this misdescription in the notice does not vitiate the plaintiff's claim. The main thing was the vein; this it was that was intended to be taken up, and the exact direction could not, of course, be ascertained or accurately described until the vein was followed up or explored.
All the questions as to the prior location, abandonment, credibility of witnesses, etc., were fairly submitted to the jury and we can not undertake, in a case which seems to be peculiarly appropriate for their action, to say that they erred in passing upon contested facts.
The judgment is affirmed.
FERRON V. STURGEON.
(10 lowa, 586. Supreme Court, 1859.)
Variance between agreement and the deed tendered thereon. - The grantor of real estate in a contract of sale of a certain tract of land reserved “twenty feet of stone-coal running east and west through the same.” In the deed tendered to the purchaser this reservation was described as “a strip or belt of stonecoal twenty feet wide and running throngh or across said tract in an easterly or northeasterly direction, conforming to the course of the coal vein": IIeld, that the description in the deed was