Morgan v. Tillottson

Opinion — Thornton

Thornton, J.

Action of ejectment to recover mining ground constituting a placer claim.

The question of title was put in issue by the answers. The material averment of plaintiffs’ ownership and title to the possession was denied. The averment in the complaint in relation to the ownership of plaintiffs’ grantors and predecessors in interest was entirely immaterial, and need not have been denied. (Coryell v. Cain, 16 Cal. 567.)

The question whether the provision of the Revised Statutes of the United States (sec. 2324), which requires an annual expenditure of a certain amount for labor and materials on each mining claim until the patent is issued, a failure to comply with which provision renders the claim subject to relocation, we regard as settled in the affirmative by the case of Russell v. Brosseau, 65 Cal. 605, in this court, and Jackson v. Roby, 109 U. S. 440, in the Supreme Court of the United States.

These cases show clearly that judgment should have been rendered for defendants on the evidence, the whole of which was comprised in an agreed statement of facts.

*522Under such circumstances, we consider it unnecessary and unjust to put the defendants to the toil and expense of a new trial.

The judgment and order are therefore reversed, and the cause remanded to the court below, with directions to enter judgment for defendants for the land in controversy.

Ordered accordingly.

Sharpstein, J., and McFarland, J., concurred.

Hearing in Bank denied.