Attwood & Walker v. Fricot

Citations

• 17 Cal. 37

Syllabus

<p>Plaintiffs having offered in evidence the book, where mining claims are recorded according to mining rules, to show title in the original locators, then offered the entry in that book of the transfer of said claims from such locators to the lessor of plaintiffs as proof of the fact of transfer. The Court below excluded this entry until proof aliunde of the transfer: Held, that this entry was inadmissible as proof of such transfer—there appearing no mining regulation which makes the entry by the Recorder primary evidence of the fact of transfer.</p> <p>Such book was admissible to show compliance with the rules of the mining district, and this particular entry admissible to show compliance with the miners’ rule requiring transfers to be recorded.</p> <p>It being objected by plaintiff to a deposition—First. That the copy of the order of the Judge fixing the time for taking it did not mention the notice to be given the adverse party; Second, That no correct copy of said order was served; Third, That no sufficient notice to take the deposition was ever given, the objection was overruled, “ because the original order of the Jndge, made on affidavit, fixed the time of notice at three days, and because plaint'ffs’ counsel acknowledged service in writing of a copy thereof March 8th, 1859, more than three days before the taking of the deposition: ” Held, that there was no error; that the objection assigned was matter for the Court, and its discretion was properly exercised; that reasonable notice should be given of the time and place of taking testimony, but what is reasonable notice depends on the particular circumstances.</p> <p>Mining claims are held by possession, but that possession is regulated and defined by usage and local and conventional rules; and the “ actual possession ” which is applied to agricultural land, and which is understood to be a possessio pedis cannot be required in case of a mining claim, in order to give a right of action for the invasion of it.<