Campbell v. Silver Bow Basin Mining Co., 49 F. 47

Campbell v. Silver Bow Basin Mining Co.

49 F. 47 | 9th Cir. | 1892

DEADY, District Judge.

This action is brought to recover the possession of a dump claim for mill tailings, situate in Harris mining district, in the district of Alaska.

It is alleged, in the amended complaint, that the claim does not contain five acres, and is of no value, either as agricultural or mineral land; that the plaintiff is the owner in fee of the mining claim known as the “Fuller First Lode,” situate in Silver Bow basin, in the district aforesaid, which is very valuable for the gold it contains; that the plaintiff, for the purpose of mining said lode, has built a quartz-mill, and located and appropriated said dump claim, which is about 1,150 feet south of said quartz-mill, and worth more than $5,000, and is essential to the proper working of said lode; that while the plaintiff was so possessed and entitled to the possession of said dump claim the defendant entered upon the same, and ousted plaintiff therefrom, and still wrongfully withholds the possession thereof from' the plaintiff.

There was a demurrer to the complaint, which was sustained by the court. The case is here on error, for review of the decision on the demurrer. There is no opinion of the court below in the record, nor is there any brief or appearance of counsel for the defendant.

Upon the facts stated in the complaint, and admitted by the demurrer, the plaintiff is entitled to recover. He ap*242pears to have had, at least, possession of the claim, and the defendant ousted him without a shadow of right, and is, in fact, a naked trespasser.

The laws of the state of Oregon govern this procedure, (23 St. p. 25), and by them any “person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law.” Hill’s Comp. 1887, § 316.

In Wilson v. Fine, 38 F. 789, 14 Sawy. 38, it was held, in the United States circuit court for the district of Oregon, that a person in the possession of real property might maintain this action to recover the same against a mere intruder or wrong-doer.

The judgment of the court below is reversed, and the cause is remanded for further proceedings in accordance with this opinion.