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and F. L. Argall." In all other respects it is conceded to have been sufficient. The claim of defendants is stated in their brief as follows: "The circumstance that the notice was in fact delivered to the officers of the Yosemite Company does not alter the case. It was not such a notice as would require the Yosemite Company to pay any attention to it. It was not addressed to the then holder of the nine-twentieths interest, nor was it addressed to the assigns of the former holder, and this we take to be a fatal defect."

expenditures, that then, and in that event, of his co-owners who have made the retheir interest in said Slap Jack mining quired expenditures." In the present case claim, or the interest of the one so failing the notice was directed-"To Harry Argall or refusing to contribute and pay his proportion of such expenditures, would thereupon belong to and become the property of their co-owners, the said" Emersons, Britton, and Miller. (Finding 9.) The court next finds (finding 10) that "immediately after said notice was served upon said defendants Harry Argall and F. L. Argall, and on or about December 20, 1899, they delivered the same to the officers, agents, and representatives of the Yosemite Gold Mining Company, and also to the officers, agents, and representatives of the Yosemite Gold Mining & Milling Company, and that at all times thereafter each of said companies had full and actual knowledge of the contents of said notice" and full and actual knowledge that the Emersons, Britton, and Miller had performed the annual labor upon said mine in 1898, as aforesaid, and that the Argalls had not performed their part of said labor, and had not contributed to its cost as above stated, and said companies also had full and actual knowledge that the Argall interest would be forfeited to the co-owners who had paid for said labor. It is next found that neither of the Argalls nor either of said companies ever contributed towards said expenditures, "and that by reason thereof and of the statute in such cases made and provided the said" Argalls and said companies "forfeited to the said" Emersons, Britton, and Miller, plaintiff's predecessors, "all of their and each of their right, title and interest of, in and to the said Slap Jack mining claim, and the nine-twentieths interest therein which was formerly owned by the said" Argalls, "and the same is now the property of plaintiff herein." (Finding 11.) The court also found that the Emersons, Britton, and Miller "did not know and had no notice, constructive or otherwise, of the execution or delivery of the deed which was made by the defendants Harry Argall and F. L. Argall to the Yosemite Gold Mining Company, or of the deed to the Yosemite Gold Mining and Milling Company, until the said deeds were recorded."

[1] The section of the Revised Statutes, supra, among other things, provides as follows: "Upon the failure of any one of several co-owners to contribute his proportion of the expenditure required thereby, the coowners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent coowners personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication, such delinquent shall fail or refuse to contribute his proportion of the expenditure required by this section, his in

It is claimed, and may at once be conceded, that the statute must be strictly construed, being one imposing a forfeiture. The statute does not prescribe the form of the notice or how the persons to whom it is addressed, or whom it is intended to notify, should be designated. The courts have dealt with the question in cases of publication in a newspaper. In Elder v. Horseshoe Min. & Mill. Co., 149 U. S. 248, 24 Sup. Ct. 643, 48 L. Ed. 960, the notice was addressed "To Rufus Wilsey, his heirs, administrators, and to all whom it may concern." Wilsey was dead, and there was no administrator. It was contended that the heirs should have been named. It was held that, where by the local law title vested in the heirs and the administrator has but a lien on the real estate for administrative purposes, "it was not necessary that the notice should specifically name the heirs of the deceased owner."

In the case here, the notice was addressed to the Argalls and no others, and was served on them December 20, 1899, and by them immediately turned over to the Yosemite Gold Mining Company. It is true that on May 31, 1899, the Argalls had conveyed their interest to this company, but the court found, and the evidence was, that the co-owners did not know this fact, and the deed was not recorded, so as to give constructive notice until January 12, 1900; and it was in the following May that this company deeded the Argall interest to defendant company, which latter deed was not recorded until the following September. It seems to us that the service of notice by the Emerson group of coowners upon the Argalls who had for a long time been their co-owners, and whom they still believed to be their co-owners and knew nothing to the contrary, was sufficient. If the notice had been made by publication there would be some reason in holding, as the cases seem to hold, that, in order to bind unknown owners, the notice should not only be directed to the ostensible or supposed coowners, but to their heirs, administrators, and assigns. But, where the notice is addressed to and personally served upon the only known co-owners, it would be idle to further address the notice, for there would

Cal.)

EVALINA GOLD MINING CO. v. YOSEMITE GOLD MIN. & MILL. CO. 949

So far as the Yosemite Gold Mining & Milling Company is concerned, it had no interest in the property until in May, 1900, and it is immaterial whether it was served. As to the Yosemite Gold Mining Company, it was served with the notice, for the evidence is that the Argalls passed it over immediately to the president of that company, and it therefore had, as the court found, full knowledge of its grantors' delinquency and that, unless their proportion of the assessment work for 1898 was paid, their interest would be forfeited to their co-owners. Before we could sustain defendants' contention, we should have to hold that a co-owner, who has done all the assessment work for a given year, could not "advertise out" his apparent co-owner by serving upon him the required written notice, but he must also give notice by publication addressed in the manner above pointed out in order to forfeit any interest some unknown person might have through an unrecorded deed from such coowner. We cannot believe that the statute requires such course to be taken. However this may be, the co-owner did, in fact, receive the notice by which every fact required by the statute to be given in the notice was made known to it. The Yosemite Gold Mining Company thus had the opportunity to protect itself from the forfeiture, and cannot now be heard to complain of consequences produced by its own neglect.

Of the general purpose of the law of Congress, the Supreme Court said, in the case cited: "We are of opinion that the publication of notice was sufficient, although there was no administrator at the time of publication. It is unnecessary under this statute to publish notice to lienors. We agree with the Supreme Court of the state that the evident purpose and object of the law section 2324) were to encourage the exploration and development of the mineral lands of the United States, and the sale of the same, and that all the provisions of the law having been framed with that object in view, if the required work is not performed, after the expiration of the year, and notice of contribution properly served or sufficiently published, the rights of delinquents are absolutely cut off, though the failure to do the work may have been caused by the death of the locator or locators during the year. When a notice has been rightfully published under the statute, it becomes effective in cutting off the claims of all parties, and the title is thus kept clear and free from uncertainty and doubt."

Appellants claim that the Yosemite Gold Mining Company was in possession of the mine in 1899, and did a large amount of work on it, and that in October of that year it mortgaged the Argall interest which had been conveyed to it, and that from these facts it must be inferred that the Emersons had notice of the company's interest. The fact is that the possession of the company,

whatever it was, was based upon the title claimed by McWhirter on what he called the Jim Blaine mine, which was McWhirter's attempted relocation of the property afterwards determined to be without validity. The history of that litigation appears in former appeals, but does not appear in this record; neither does it here appear that the Yosemite Company, in 1899, did the work now claimed. It appeared without conflict that the Emersons knew nothing of any transfer by the Argalls to the Yosemite Company, or that it claimed under them, until the deed was recorded.

[2] It is also contended that the Argalls did more than their proportion of work on the mine in 1899. It appears from the testimony of the Argalls that the work done by them was for the sole purpose of unwatering the mine, so that it could be examined by a prospective purchaser. This work was not done for the development or improvement of the mine, nor was it done to enable the Argalls to perform work on the mine. They testified that it was not done as assessment work, nor was it intended to be so considered. Under such circumstances, we are satisfied that the work was not such as is contemplated by the United States statute.

Second. It appeared from the findings that on October 25, 1899, the Yosemite Gold Mining Company mortgaged certain mining property, "including among others the said undivided nine-twentieths interest of, in, and to the Slap Jack mining claim aforesaid to one Marsden to secure the payment of a certain promissory note"; that on December 9, 1901, Marsden assigned said note and mortgage to one Wemple; that on July 24, 1902. Wemple commenced an action to foreclose said mortgage, in which said action a decree of foreclosure was duly entered, and on September 17, 1906, an order of sale was made by the court and the interest of defendant in said nine-twentieths in said Slap Jack mine was sold to the assignee of plaintiff in the action, the said Wemple, for the sum of $4,000 and certificate of sale was duly issued to him; that within 12 months thereafter, to wit, on October 11, 1907, "the Evalina Gold Mining Company, plaintiff herein, as the successor in interest of the defendants and judgment debtors in said action, redeemed said nine-twentieths interest in said Slap Jack mining claim from said sale, and on said day tendered to and paid to the said Fred Sutton, commissioner, as aforesaid, the amount necessary to redeem said nine-twentieths interest in said Slap Jack mining claim from said sale, to wit, the sum of $4,480," and there upon said commissioner delivered to plaintiff herein his certificate of redemption "showing said payment on redemption," and said commissioner thereupon paid said moneys received by him from the plaintiff upon said redemption to the said E. H. Wemple, who accepted and retained the same in full redemption of said nine-twentieths of said

claim and "ratified and acquiesced in said [der the statutory provisions as to redempredemption."

tion, and now holds whatever title that company had in the mortgaged premises through the operation of section 700 of the Code of Civil Procedure, and is entitled to all the rights given by law to any redemptioner.

We have stated the respective claims of the parties upon this second proposition on which the lower court held with the plaintiff. But, as we are clearly of the opinion that the judgment may safely rest upon the first question discussed, we do not deem it necessary to express an opinion upon the second point.

No question is made by defendants as to the regularity of these proceedings by which plaintiff redeemed from this foreclosure sale. Defendants' contention now is that. "unless the advertising-out process was good, plaintiff derived no benefit from the redemption"; that, under the decision in Wemple v. Yosemite Gold Mining Co., 4 Cal. App. 78, 87 Pac. 280, "when a redemption from a foreclosure sale is effected, its only operation is to discharge the mortgage debt, and leaves the property in the same status in which it stood before the mortgage was executed." Third. Certain two alleged errors in the Hence, it is claimed, as stated in the brief: rulings of the trial court are assigned as "When the property was redeemed from the prejudicial. F. L. Argall was a witness for mortgage, the title reverted to the parties, plaintiff. He testified: "I delivered the nojust as it stood before the mortgage was giv- tice [the notice served by the Emersons] to en, so, in this case, if the Argalls had no in- Mr. Berg [president of the Yosemite comterest in the property at the time the mort-pany] the same evening it was delivered to gage was given, when the property was re- me. It was at the residence of Mr. Beggs deemed from the foreclosure sale, the nine- [attorney for the Yosemite company] and Mr. twentieths interest in controversy reverted Berg in San Jose. Q. What, if anything, to the successors in interest of the Argalls." was said to you at the time about the noRespondent contends that, as the succes- tice?" Defendants objected as immaterial sor in interest of the defendants in the Wem- and irrelevant, and the objection was overple foreclosure case, it redeemed said nine- ruled. "A. Mr. Beggs paid no attention to it. twentieths interest from said sale, and paid Mr. Berg was present at that time." Later said commissioner the sum of $4.480, and Mr. Beggs was called as a witness for detook an assignment of the certificate of pur- fendants. He had testified that he had been chase, and was thus subrogated to all the attorney for the Yosemite Gold Mining Comrights which Wemple acquired under the pany and the other company also. "Immediforeclosure sale, and respondents' right to ately after the notice to contribute was servredeem cannot now be questioned. Attention ed upon Dr. Argall in the latter part of Deis called to numerous cases holding that, cember, 1899, Dr. Argall handed the notice where redemption is made by one disqualito me. Q. What did he [Dr. Argall] say to fied as a redemptioner, still, if the purchaser you at the time he handed you the paper? at the sale accepts redemption, he will not Mr. O'Brien: I object on the ground that it be heard to question it (White v. Costigan, is incompetent, irrelevant and immaterial. 134 Cal. 37, 66 Pac. 78); that under section I submit any declaration made by Dr. Argall 700 of the Code of Civil Procedure the pur- cannot be binding upon the other party. It chaser at the sale "is substituted to and ac- would be a conversation between Dr. Argall quires all the right, title, interest, and claim and his own attorney." The court sustainof the judgment debtor thereto," the effect of ed the objection. There was no answer to which is to pass "the legal title to the land, the first question. If anything was said to subject to defeasance by the happening of Dr. Argall, he does not state it. The answer the condition subsequent"-i. e., the right that Mr. Beggs paid no attention to it (the of redemption by the mortgagor (Pollard v. Harlow, 138 Cal. 390, 71 Pac. 454, 648)-that notice) would not justify inquiry as to what the assignee of the purchaser stands in the Argall said at the time. He was not one of the plaintiffs and could not bind the plainlatter's shoes, and, on failure of the judg-tiff by his declarations. Furthermore, it ment debtor to redeem within the statutory could not be said to be rebuttal of testimony period. title passes without a sheriff's or commissioner's deed, which latter is but given by Argall, for he did not answer the evidence of the title which vested by virtue question. He merely said that Mr. Beggs of the sale, and that redemption is virtually paid no attention to the notice. We discover neither error nor prejudice in the rulings. The judgment and order are affirmed.

a transfer of the certificate of sale. In short, it is contended that, the Yosemite Gold Mining Company having failed to redeem, respondent paid its indebtedness un

We concur: HART, J.; BURNETT, J.

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(District Court of Appeal, Third District, California. April 3, 1911.)

1. APPEAL AND ERROR (§ 954*)-INJUNCTION (§ 135*)-INJUNCTION PENDENTE LITE-DISCRETION-REVIEW.

Whether an injunction pendente lite should be granted or refused rests largely in the discretion of the trial court, which will not be interfered with on appeal, unless abuse of discretion is shown.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 3818-3821; Dec. Dig. § 954: Injunction, Cent. Dig., § 304; Dec. Dig. & 135.*]

2. INJUNCTION (§ 144*)-PRELIMINARY INJUNCTION-COMPLAINT EVIDENCE.

Under Code Civ. Proc. § 527, providing that an injunction may be granted before judgment on a verified complaint, or on affidavits if the complaint or affidavits show satisfactory and sufficient grounds therefor, the complaint alone, though alleging ultimate, as distinguished from evidenciary, facts sufficient to justify injunctive relief, may authorize the issuance of a preliminary injunction, though not supported by affidavit or other proof.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 316; Dec. Dig. § 144.*]

3. APPEAL AND ERROR (§ 920*)-REVIEWPRESUMPTIONS-PRELIMINARY INJUNCTION. Where a preliminary injunction is granted by the trial court on a verified complaint alone. as authorized by Code Civ. Proc. § 527, it will be presumed on appeal from such order that it was satisfactorily shown to the court that grounds existed for such relief, and that in granting the same the court acted with due caution in regard to the rights of the opposing party.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3717; Dec. Dig. § 920:*] 4. INJUNCTION (§ 144*)-PRELIMINARY INJUNCTION-VERIFIED COMPLAINT.

Under Code Civ. Proc. § 527, authorizing the granting of a preliminary injunction on a verified complaint alone. a complaint for injunctive relief need not allege evidenciary as distinguished from ultimate facts averred according to the ordinary rules of pleading.

6. WATERS AND WATER COURSES (§ 87*)-DIVERSION-PRELIMINARY INJUNCTION-VERIFIED COMPLAINT INCONSISTENT ALLEGA

TIONS.

Under Code Civ. Proc. § 527, authorizing the issuance of an injunction pendente lite on a verified complaint, it was no objection to such an injunction in an action to restrain defendant from diverting the water of a stream that the complaint alleged that complainant was entitled to the unobstructed flow of the stream as the riparian owner, and also as an appropriator, in that such averments were inconsistent and contradictory; there being no fatal inconsistency between complainant's claim to a riparian right and the claim by appropriation.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 79; Dec. Dig. § 87.*]

7. WATERS AND WATER COURSES (§ 78*)—RIPARIAN PROPRIETOR-USE OF WATER.

It was no defense to an action by a riparian owner using the water of a stream for mining purposes to restrain defendant from diverting the water above the point of complainant's use that such use was not a riparian use, the rights of a riparian proprietor not being tested by the use or uses to which he puts the water or whether he uses it at all; he being entitled to restrain the diversion by others than riparian owners of water which, if unobstructed, would flow past his land, though no injury might be done to his present use of the water.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 67-69; Dec. Dig. § 78.*]

8. WATERS AND WATER COURSES (§ 87*)-DIVERSION INJUNCTION-COMPLAINT.

Where a complaint by a riparian proprietor to restrain defendant from diverting the water of a river by taking water from a creek above complainant's riparian lands alleged that the creek was a tributary of the river, and that defendant diverted from the creek 150 inches

of water, thereby lessening the flow of water in the river and depriving complainant of the flow to which it was entitled as a riparianist, an injunction pendente lite issued on such complaint was not objectionable because it was not proved by other evidence that complainant was either entitled to the flow of the water of the creek in a natural and usual channel through complainant's land, and that its land was riparian to the water of the creek, or that complainant was an appropriator of a water right with the particulars as to the means and method of complainant's diversion or appropriation and con

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 316; Dec. Dig. § 144.*] 5. WATERS AND WATER COURSES (§ 85*)-DI-tinuance of its use.

VERSION-PRELIMINARY INJUNCTION.

A verified complaint to enjoin defendant's obstruction of a water course alleged complainant's right to use the water by appropriation and also as a riparian owner, that such use was necessary for its purposes in the prosecution of its mining enterprises, and that by reason of defendant's acts in diverting the water of the river and its tributaries at a point above complainant's riparian land, complainant had been deprived and would be deprived by the con

tinuance of such diversion of the use of the water, and would be and had been compelled to suspend its mining operations whereby defendant had inflicted on complainant a serious injury, and that the continuance of defendant's diversion of the water and the consequent continued suspension of complainant's mining operations would cause complainant irreparable injury. Held, that the complaint, without more, stated facts justifying the issuance of an injunction pendente lite.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 84-90; Dec. Dig. $ 85.*1

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 79; Dec. Dig. § 87.*]

Appeal from County; J. S. Beard, Judge. Superior Court, Siskiyou

Suit by the Porters Bar Dredging Company against Fred Beaudry. From an order granting complainant's application for a preliminary injunction, defendant appeals. Af

firmed.

Reed & Dozier and Jas. R. Tapscott, for appellant. O'Neill & Butler, Taylor & Tebbe, and A. R. Baldwin, for respondent.

HART, J. The plaintiff made an application to the court below for an injunction pendente lite in this action, and, after a hearing on an order to show cause why said application should not be allowed, an order granting a preliminary injunction was made

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

by the court. From the order granting said | which, if believed, would have led to a coninjunction this appeal is presented.

trary conclusion. The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that pending a trial on the merits the defendant should or that he should not be restrained from exercising the rights claimed by him. When the cause is finally tried, it may be found that the facts require a decision against the party prevailing on the preliminary injunction." Testing the record before us by the principles declared in the foregoing, we are unable to say that the trial court abused the discretion committed to it in a proceeding of this char

The evidence upon which the order appealed from was made consisted of the verified complaint of the plaintiff and two affidavits, filed by defendant, in opposition to the application for the provisional relief asked for. The purpose of the action is to secure a decree adjudging the plaintiff the owner of the lands described in the complaint and that they are riparian to the South fork of Scott river, in Siskiyou county; that the plaintiff is the owner and entitled to the possession of 3,500 inches, measured under a 4-inch pressure, of the waters of the said South fork of Scott river and the tributaries thereof, etc.; that the defendant be perpetually enjoined "from erect-acter by allowing the preliminary injunction. ing and maintaining or erecting or maintaining any dam in the South fork of Scott river, or any of the tributaries thereof above the lands of plaintiff and that he may be enjoined and restrained from interfering with the flow of the waters of the said South fork of Scott river and its tributaries above the lands of plaintiff in any manner when there is only thirty-five hundred inches or less of water therein measured under a four-inch pressure"; that, defendant pending this suit be enjoined from interfering in any manner with the flow of the waters of said river or its tributaries, etc., above plaintiff's lands.

[1] Whether in a given case an injunction pendente lite should be granted or refused is a matter resting largely in the discretion of the trial court, to which the application for such an order is presented. This proposition is well settled in this state. In Raub v. Los Angeles T. Ry. Co., 103 Cal. 473, 37 Pac. 374, it is said: "The dissolution or continuance of a preliminary injunction is a matter largely within the discretion of the trial court, and, unless it appears from the records in the case that the discretion has been abused, the action of the court will not be disturi ed on appeal"-citing the following cases: Rogers v. Tennant, 45 Cal. 184; Patterson v. Board of Supervisors, 50 Cal. 344; Parrott v. Floyd, 54 Cal. 534; White v. Nunan, 60 Cal. 406. In Marks v. Weinstock, Lubin & Co., 121 Cal. 53, 53 Pac. 362, the rule as thus stated is reaffirmed.

Again, in the comparatively late case of Miller & Lux v. Madera Canal, etc., Co., 155 Cal. 62, 99 Pac. 511, 22 L. R. A. (N. S.) 391, the court thus restated the rule: "This is an appeal from an order granting a temporary injunction. It would be superfluous to cite authorities to show that the granting or refusing of a preliminary injunction is a matter resting largely in the discretion of the trial court. Where there is a substantial conflict in the evidence regarding an issue which may affect the discretion of the court in passing upon the application for such injunction, the order will not on appeal be overthrown merely because there may be

The complaint avers that the plaintiff "is now, and for a period of three years or more last past has been, a corporation duly organized and existing under the laws of the state of New York, and has been, during said time, conducting a mining business and mining operations in the county of Siskiyou, state of California, and that it has fully complied with all the laws of said state so as to entitle it to exercise all its corporate functions therein"; that plaintiff "is now the owner, in possession of, and entitled to the possession of, and plaintiff and its predecessors in interest have been for a period of 25 years or more last past the owners of, in the possession of and entitled to the possession of, that certain real estate, in the county of Siskiyou, state of California, described as follows." Following this averment is a description of the lands from which, it is asserted, defendant has wrongfully so diverted the waters of Scott river and tributaries as to deprive plaintiff of the full flow or quantity of waters to which it is entitled, either as a riparianist or an appropriator. The complaint, in the first count thereof, then proceeds to allege: "That the South fork of Scott river is a natural stream of water which in its natural channels flows through the lands of plaintiff above described, and during all the times above mentioned has so flowed through and over said lands, except as hereinafter stated, and all of said lands are riparian to said South fork of Scott river; that on or about the 11th day of August, 1908, defendant wrongfully and unlawfully and against the will and without the consent of plaintiff, by means of a dam placed in Jackson creek which is tributary to said South fork of Scott river, diverted away from said tributary about 150 inches of the waters thereof, and carried the same away from said Jackson creek at a point above the said lands of plaintiff herein, and thereby deprived said lands of plaintiff of the natural flow of the said South fork of Scott river to the extent of 150 inches measured under a 4-inch pressure." In the second count of the complaint it is alleged:

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