Amador ledger., 1909-09-17

Frank Garibaldi and Frank Devencenzi
Plaintiffs, VS.. John B. Grille, James
Grllo and August Grill o, Defendants.
OPINION.
Plaintiffs bring this action to quit
their title to thirty acre tract of sur
veyed unpatented mineral land OF Uni
ted States known, as the Gold Dnst
placer claim and described as the west
half of south west quarter OF the north
east quarter and the west halt OF the
east half of the south west quarter of the
north east quarter OF section twenty
two in township seven north of range
twelve east, M. D. BIZ M. in the Vol
cano mining district, Amador county,
and their claim to the same is based
upon a notice OF location dated and
posted upon the ground on Aug. %,
1908, upon which day they distinctly
marked their location upon the ground
so that its boundaries could be readily
traced. Plaintiffs entry upon the land
tor the purpose of making the location
was peaceably made, but since then they
have never had actual possession of any
part of the claim, nor have they per-
formed any labor upon it.
Defendants have disclaimed any in
terest to the most westerly ten acres of
the tract alleged by plaintiffs to be
owned by them but by way of cross
complaint they assert title TO the re-
naming twenty acres upon the grounds :
I. That they have held and worked
the ground for more than five years pre-
ceeding the commencement of this ac-
tion, and have thereby acquired title
without a location. 2. That they are
grantees OF one ]. B. Skinner, who
made a valid location of the twenty
acres as placer claim on July 8, 1896,
notice of which location was recorded
July 27, 1885, with the recorder of Vol
cano mining district.
The evidence given upon the trial
showed without conflict that this mining
ground was covered with lava cap that
was deep in some places; that there
is supposed to be an ancient channel
containing gold-bearing gravel under
what is known as Humbug gulch; that
this claim enters the twenty acres in
dispute near the southwesterly corner,
and running in a north easterly course
it passes out of the twenty acres at about
midway in tie eastern line, and many
years ago a discovery shaft was sunk
in the gulch at point about equi-dis-
tant in its course, from its point of en-
trance to its point of departure in the
twenty acre claim. This shaft was sunk
apparently to a depth of about thirty
feet, and gravel was reached, whether
gold bearing or not does not appear, but
it was shown that on account of the
water encountered the most practical way
of working the gravel was by means
of a tunnel started from adjoining
ground.
Skinner after making his location,
spent two or three days in making sur
veys for the purpose of selecting a
course for tunnel to develop the claim.
He settled upon point and started his
tunnel upon patented land about 500
feet east from the eastern boundary of
the twenty acre claim. There was evil
dence at the trial showing that work
was thereafter performed in driving the
tunnel forward toward the shaft each and
every year up TO August 20, 1902, the
date upon which defendants claim to
have acquired ownership but it cannot be
said that the evidence proves the eX-
penditure of the 500 worth of labor re-
CURED for every one of these years.
On Dec. %, 1885, Skinner conveyed
one-half interest in the claim to M.
Christensen, and on August 7, 1900, M.
Christensen filed with the county re-
corder his affidavit showing that he
had performed the annual labor for 1896
and 1899, upon the twenty acre claim
and that Skinner had failed to crontrib-
ute his portion of such expense after
demand by publication.
Since August 20, 1902, defendants
claiming ownership of the twenty acres
in dispute have expended more than
500 each year in driving the tunnel for
ward, besides many hundreds of dollars
in running drifts, and before the trial
OF this action they had by means of the
tunnel penetrated under the surface of
the very ground in dispute, but the evil
dence does not establish the distance, ii
any, that defendants had penetrated under