Pekin Mining & Milling Co. v. Kennedy

This is an action of ejectment to recover a tract of land containing about five and one half acres, situated in section 29, township 9 north, range 10 east, Mount Diablo meridian, in El Dorado County. The findings and judgment were for plaintiff, and defendants appeal from the judgment, and from an order denying a new trial.

The land in contest constitutes a part of what is known as the “ Oro Fino quartz mine,” which was surveyed by a United States mineral surveyor, and marked out, etc., in 1880. No patent seems to have been obtained for the land as mining ground; but plaintiff claims to have acquired the United States government title through one Charles P. Schenck, who was a homestead claimant of that part of said section 29 which includes the land in contest. In June, 1882, Schenck received a patent from the United States for the land covered by his homestead claim, but on September 11, 1880, when he was only a homestead claimant, and had not made his final proof, by a deed which was never recorded, he “ granted and quitclaimed” a part of the land described in the complaint to one William H. Miller. The deed was drawn by Miller on a blank in which was printed the word…