JOHN F. CALLAHAN, Respondent, v. JOHN P. JAMES et al., Appellants, 141 Cal. 291

SHAW, J.— This is an action by the plaintiff for a decree determining the title to a certain mining claim situated in the town of Groveland, and known as the Rhode Island Mining Claim. Judgment in the court below was given for the plaintiff; the defendants’ motion for a new trial was denied, and from the judgment and order the defendants appeal. The plaintiff claims title to the mining claim under a mining location originally made in the year 1854, by one Reid, and relocated by Reid and one Austin January 1, 1876. The plaintiff obtained a conveyance of the mine from Reid and the successor of Austin in 1896.

The defendant James deraigns his title from the patent issued for the townsite of Grove-land under the federal laws (U. S. Rev. Stats., sees. 2387, et seq.), and a deed from the patentee of the townsite to Laurence Murray, dated September 5, 1879, purporting to convey to Murray lot 8 of block 6, as designated on the official map of the townsite, of which lot the mining claim is a part. The date of the original entry of the townsite was October 3, 1877, and the patent was issued February 10, 1886.

It appears from the findings that the mining location was duly made on January 1, 1876, by Reid and Austin, and that their title became vested in the plaintiff March 26, 1896. 1. The appellants claim that the decision is against law, because there is no finding that at the time of the entry of the townsite in 1877, or at any time thereafter, the land embraced in the mining claim was known to contain minerals of such extent and value as to justify expenditure for the purpose of extracting them, citing in support of the proposition that this is necessary Richards v. Dower, 81 Cal. 44; Smith v.

Hill, 89 Cal. 122; Lindley on Mines, sec. 176; and a number of decisions of the United States supreme court. These decisions, however, are not applicable to the case as shown by the findings. At the time of the entry of the townsite, in 1877,

section 2329 of the U. S. Revised Statutes (U. S. Comp. Stats. 1901, p. 1549) relative to townsite entries provided, that “no title shall be acquired, under the foregoing provisions of this chapter, to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws.” It will he observed that this

section prevents the townsite entry from carrying title to two classes of mining claims. The first class need not be characterized by possession in any person. It is sufficient if in fact the property is a known mine of gold, silver, cinnabar, or copper. It is to this class of mining claims that the decisions above cited refer. They are in effect that it is not sufficient that there he in fact a mine of gold, silver, cinnabar, or copper, unless at the time of the townsite entry it is known to be such. The other class of mining claims referred to in the

section consists of any valid mining claim or possession held under existing laws. The claim under consideration in this case belongs to this class. The court finds that Reid took exclusive possession of the mining claim in the year 1854, and discovered valuable gold-bearing quartz-rock in place thereon in sufficient quantities to justify exploration and development, and did thereafter continue to hold, work, operate, and develop the said mining claim in the manner required by law until he conveyed the same to the plaintiff, in 1896.

It therefore appears that at the time of the townsite entry, and at all times since, the claim in question was a valid mining claim and possession held under existing laws. In this class of cases it is immaterial whether the claim was known to contain minerals of sufficient value to justify exploration or not. There is no finding that since the relocation in 1876 the claim has been kept alive by doing the assessment-work required. This omission, however, cannot affect the case.

The statement on motion for new trial shows that there was no evidence given which would justify a finding that there had been a failure to do the assessment-work. Where there has been a valid location of a mining claim, and possession has been maintained thereunder, the fact of a failure to do the assessment-work necessary to hold the same is a matter of defense. It constitutes in law a forfeiture of the title, or right of possession, and, as is the rule generally in respect to forfeitures, the burden of proving the facts which constitute it rests upon the party asserting it. (Emerson v.

McWhirter, 133 Cal. 515; Harris v. Kellogg, 117 Cal. 489 ; Quigley v. Gillett, 101 Cal. 462; Hammer v. Garfield etc. Co., 130 U. S. 291.) The failure to find upon the facts in issue constituting a defense to an action will not justify a reversal, unless it is shown that there was evidence given from which such facts could be found. (Himmelman v. Henry, 84 Cal. 104; Wise v. Burton, 73 Cal. 175; Winslow v. Gohransen, 88 Cal. 450; Giletti v. Saracco, 110 Cal. 428; Klokke v. Escailler, 124 Cal. 297; Stewart v.

Hollingsworth, 129 Cal. 180.) As a matter of fact, the statement here shows that there was abundant evidence from which the court might have found that the assessment-work had been regularly done from year to year from the first location of the mine until the time of beginning this action, and none to the contrary. So much the more, therefore, would the rule apply that the failure to find this fact would not invalidate the judgment. 2.

It is claimed by the appellant that the finding that valuable gold-bearing rock had been discovered upon the mine prior to the application for the townsite patent is not sustained by the evidence. We have examined the record and find that there is sufficient evidence on the subject to sustain the finding to that effect. 3. The court did not err in overruling the objection to the question put to one of the plaintiff’s witnesses whether or not the same vein that ran through the Rhode Island Mine also ran through the Mount Jefferson Mine.

It was in evidence that the two mines joined, and the fact that the same vein ran through both mines was of some assistance in identifying the mining claim and its location on the ground. We do not consider it necessary to mention other and minor points contained in the brief. They would not be of sufficient importance to justify a reversal of the ease, even if it was conceded that the court erred therein. The judgment is affirmed. Angellotti, J., Van Dyke, J., McFarland, J., and Lorigan, J., concurred.