Summary
In Gore v. McBrayer, 18 Cal. 583, where the plaintiff, the defendant, and others verbally agreed to prospect for quartz and to be equally interested in claims taken up, and the defendant discovered a lead, and located it by putting up a written notice with the names of the plaintiff and others on it, it was held that the plaintiff's right attached by these proceedings, and could not be divested by the mere act of the defendant in taking down the notice and putting up other notices with other names.
Summary of this case from Hendrichs v. MorganOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 18 Cal. 583 at 589.
Original Opinion of July 1861, Reported at: 18 Cal. 583.
JUDGES: Upon a petition for rehearing, the opinion of the Court, per the-same Justices, was as follows.
OPINION
BALDWIN, Judge
Upon a petition for rehearing, the opinion of the Court, per the-same Justices, was as follows:
Petition for rehearing.
The error of the ingenious argument of the appellant's counsel has been exposed in the opinion reviewed by the petition. It is in supposing that a writing is necessary to vest or divest a title on taking up a mining claim. The title is in the Goverument; if a written contract is needed to divest it, the Goverument would have to execute it. But, subsidiary to the Government's paramount title is the permissive claim of the locator. This comes from a mere parol fact, evidenced in the present case by a notice; this notice is a mere advertisement of this parol fact. A verbal authority is sufficient to authorize an agent to make the entry, or to get up the notice. No title is divested out of the Government by this process, but a right of entry given under the Government. When acting for himself, or for any other who authorized the act, these acts confer this permissive title to the public mineral land, and the Statute of Frauds has no application to this class of cases. It is not a mode of vesting, or transferring title from the owner of the fee or holder of the title, but a mere mode of showing that the locator has availed himself of the Government's concession of the privilege of occupying and using the ground. This right may be exercised through an agent or servant; whenever the appropriation is made by an agent having authority from a principal to make it, the act is complete and title vests in the principal, and the agent, by his mere act, cannot subsequently divest it. If the local law were that any man might take up a mining claim by advertising the fact in a newspaper, and A agreed to take up a claim for B, and did advertise the claim in the paper, we apprehend he could not afterwards be heard to say he had no written authority, for if allowed to dispute his own act, the answer would be that it required no written instrument to impart authority to make the advertisement in the name, or even to use the signature of the principal.
Rehearing denied.