30 Cal. 349 | Cal. | 1866
Lead Opinion
This action was brought to recover damages for trespass guare clausum fregit, and also to obtain equitable relief by injunction against a continuance of trespasses of the character alleged in the complaint. Upon the issue joined between the parties, the plaintiffs’ right and title to the locus in guo was the main fact litigated. The plaintiffs obtained a verdict for a small sum as damages and a special verdict to the effect that the land described in the complaint embodying the particular locality of the alleged trespass was the property of the plaintiffs at the time this action was commenced. Judgment was entered on the verdict, and in addition, the Court made a decree perpetually enjoining the defendants from entering upon and working in any manner the land, which was mining ground, described in the complaint. In due time after verdict, judgment and decree, the defendants moved for a new trial upon a statement prepared for the purpose. The application was denied and the defendants have appealed.
The error assigned by the defendants, when stated in general terms, is that the verdict was not in accordance with the evidence and wholly unwarranted by it; and that the Court erroneously refused to vacate and set it aside, with the judgment and decree that followed thereon.
The plaintiffs claim that in May, 1858, one Stowell and eleven other persons, calling themselves the “American Company,” posted a written notice on a certain fir tree, which was made the centre of their base or front line, by which they gave notice that they claimed a tract of land described as follows : Beginning at said fir tree, and thence running in a southwesterly direction five hundred feet; thence in a direct line to the summit of the main dividing ridge; thence up along the summit of said ridge one thousand feet; thence down the hill in a line parallel with the second mentioned course to a point five hundred feet in a northeasterly direction from said fir tree, and thence -five hundred feet to the place of beginning. Early in the following June two of the company marked the corners at the extremes of the line forming the base of the area described, by blazing a tree at each of such corners, so that a line drawn from one of these corners to the other passed through the fir tree on which the notice was posted. Having marked these corners, they then attempted to measure from the initial point through the centre of the tract described to the summit of the main dividing ridge between Slate Creek
Two maps were produced in evidence, exhibiting the respective claims of these two companies, from which it appears that the tract of land claimed by the American Company extended from the fir tree, the initial point, eastward to the ridge nearly three thousand feet, with the Last Chance Company’s Claim lying next to the south of it.
Sometime prior to December, 1859, the Last Chance Company changed its name to Golden Gate Company, and in the month last named this company, under their new name, made a survey of its land, and then for the first time marked and attempted to .establish its northern boundary line, fixing its northeast corner on the summit of the dividing ridge about one hundred feet south of the blazed tree marked on behalf of the American Company at the back line on the dividing ridge. From this corner the Golden Gate Company ran its northerly line in a northwesterly direction parallel with the southern boundary line of the American Company’s Claim as originally designated. While the Golden Gate Company was marking-out its northerly line, the American Company complained that the former was taking a portion of the ground of
What constitutes possession of a mining claim.
. Where a party relies on prior possession as evidence of his right and title to land, he must establish by proof his occupancy of it or his dominion over it. Before the plaintiffs were entitled to recover, they were bound to show their right, as against the defendants, to the land entered upon. To show this, otherwise than by a paper title from some paramount source, it was incumbent on them to prove their prior .possession or appropriation of it, in some mode which the law sanctions. Possession is presumptive evidence of title ; but it must be actual. By actual possession is meant a subjection to the will and dominion of the claimant. (Coryell v. Cain, 16 Cal. 573.) In English v. Johnson, 17 Cal. 115, the Court recognizes a difference between the acts essential to indicate the possession and occupancy of agricultural land, and those necessary to show occupancy and dominion of a mining claim. The Court say: “ We think when a claim is distinctly defined by physical marks, that possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy or work done be only on or of a part, and though the party does not enter in accordance with mining rules or under a paper title.” This authority not only recognizes but clearly indicates that the right to the possession of a particular piece of mining ground, on the Government domain, must be established by evidence of its appropriation by the
Constructive possession of a mining■ claim under a deed.
There is another ground . on which the plaintiffs rely as establishing their right to the locus in quo, and on which they seek to support the judgment. In 1861, a corporation called the “ Indian Chief Company ” acquired by purchase whatever right and interest the American Company had in the lands called the American Company’s Claims. At that time the Indian Chief Company entered upon the claim at or near the western portion of it as originally located, and in attempting to open and work the mine there, became involved in a large debt to Michael Canny. For this debt the corporation at the request of Michael Canny made and delivered to Charles Canny a promissory note, and to secure its payment executed to him a mortgage on the same property. This mortgage was foreclosed in the name of Charles Canny, and the property was sold by the Sheriff and purchased by the mortgagee, to whom a deed of it was made in August, 1863. Charles Canny held the deed as trustee for Michael Canny, who entered, into the possession of the property, claiming it of right as the cestui que trust of Charles Canny. After this Michael Canny, who is one "of the plaintiffs in this action, sold to his co-plaintiffs certain interests in the property. The deed from the Sheriff to Charles Canny described the land sold in the foreclosure suit as all and singular that certain mining claim held, owned and in possession, on the 29th of July, 1862, of the Indian Chief Company, situate at Tregaski’s Flat, known and designated as the Indian Chief Mining Company, and “ bounded on the north by the Manzanita Claim, on the south by the Monte Christo Claims.” It is in evidence that Michael Canny had not obtained a deed from Charles. In the opinion of the learned Judge denying the application for a new trial, he adverted to this circumstance, but held that .in action of trespass the cestui que trust in possession is the proper plaintiff, and by misapprehending the language of the, description
Assuming that Michael Canny and his co-plaintiff were in possession under the deed to Charles Canny, and had the right to' maintain an action in all cases where they might, if the legal'title under the Sheriff’s deed had been in them, it is •important to inquire whether the deed itself described with certainty any particular tract of land. The boundaries given are the Manzanita Claim on the north, and the Monte Christo Claims on the south. The boundaries of the claims referred to may have been of no greater extent than the north and south boundaries of the land intended to be described in the deed in question, and yet they may have been. If a party relies on a constructive possession by deed, he must show himself in the actual possession of a part of the land described in it, and the description must be definite and certain as to the boundaries of the land. If the deed contains no definite and certain boundaries, which can be located, marked out and made known, it cannot have the effect to extend'the possession beyond the jpossessio pedis, which is definite, positive and notorious. (Hicks v. Coleman, 25 Cal. 134.)
The deed in question does not contain a description which could aid to extend the plaintiffs’ possession by construction.
The plaintiffs, not having the possession or the right to the possession of the locus in quo at the time of the defendant’s entry or subsequently, were hot entitled to the judgment they obtained.
Judgment reversed and new trial ordered.
Dissenting Opinion
Dissenting Opinion
Rehearing
This case was passed upon by the Court at the last January term, and the judgment was reversed and a new trial ordered. Upon application, a rehearing was granted, and since then the cause has been re-argued by counsel for the respective parties.
It is objected, on behalf of respondents, that the Sheriff’s deed referred to in the opinion of the Court heretofore delivered was not properly a part of the record in the case. It was not embodied in the statement settled and filed on the motions for a new trial, but it is annexed thereto by the appellants, accompanied by a certificate of the Judge who tried the cause and passed upon the motion for a new trial, as the Sheriff’s deed to Charles Canny-referred to in his opinion denying the motion for a new trial; which deed, he says, was before him on such motion, but was not referred to in the argument.
The statute provides that on the argument of a motion for a new trial, reference may be made to the pleadings, deposition and documentary evidence on file, and the minutes of the Court, as well as to the statement. (Prac. Act, Sec. 195.) In the statement reference is made to the Sheriff’s deed, though it is not referred to as a part of the statement. In the opinion of the Judge denying the motion for a new trial, he refers to it in direct terms as evidence of the plaintiff’s right to recover. It appears therefore that the - deed constituted a part of the " evidence upon which the cause was tried and upon which the Court acted on the hearing of the motion for a new trial. We are of the opinion it is properly in the transcript of the record.
We have re-examined the case upon its own merits, and see no reason for changing the opinion already delivered.
The judgment must be and is hereby reversed and a new trial ordered.