McGarrity v. Byington

| Cal. | Jan 15, 1859

Baldwin, J.,

delivered the opinion of the Court—Field, J., concurring.

Ejectment for mining claims.

Many points are made by the appellants. We shall consider them very briefly: 1st. That the Court improperly refused to nonsuit plaintiff. The answer is, the grounds of the motion do not appear; therefore we cannot consider it. (10 Cal. 267" court="Cal." date_filed="1858-07-01" href="https://app.midpage.ai/document/kiler-v-kimbal-5433748?utm_source=webapp" opinion_id="5433748">10 Cal. 267.) 2d. Error in the admission' of bill of sale from Day to Thomas. Clark, the witness to the bill, was out of the State. Thomas swears he saw Clark witness it, and saw Day, the grantor, sign it; true, he says, on cross-examinar tian, that he cannot read, but recognized the paper from the contents read to him: but Lester swears, that the signature of Clark, the subscribing witness, is in his handwriting. The proof, then, identifies the paper as that which Thomas saw the grantor and subscribing witness sign. This was enough to admit it to be read. Exhibit B is proved by Lester sufficiently. It is true the witness says it was signed in his presence, “ to the best of his recollection”; but this is enough. The other objection to admission of papers need not be stated. It suffices to say that the points made against their introduction are not well founded.

We do not see that Exhibit E was irrelevant; nor, if it were, that the error in admitting it was calculated to mislead the jury. Before reversing a judgment for this cause, the point should be clearly made out, even if any objection on this score be good, which does not show that the proof improperly admitted tended to or might probably unduly influence the jury. Many things are admitted in the course of a long trial which have no relation to the merits of the case, and yet it might not be proper to reverse a case because they were suffered to go in. The agreement shows an attempt by plaintiff to get possession of and work the premises in dispute on the day defendant got his title, and though not sufficient of itself to show actual possession, or a right of possession, yet shows a fact, which, in connection with other proof, tended to prove the lona fides of plaintiff’s claim, or notice of it by defendant.

The record of the claim, made after the old records had been burned, was admissible, if for no other purpose, as showing that the regulations in that respect had been complied with. It may not have been competent, in this way, to prove the claim, but it was competent to prove that the claim of plaintiff had been recorded according to the rules of the vicinage.

The Court did not err in refusing to admit the deed from Ray to Byington. Ray was not shown to have anything to do with the premises or the controversy. Prima fade the deed was irrelevant. The rule in such cases is, that the counsel must explain how the testimony is admissible, or offer to connect it; otherwise there would be no limit to testimony as to quantity or kind. Not having done this, the Court had a right to reject it.

As to the instructions, the record does not show all the instructions; and-it is very questionable whether we could, in such a case, consider the particular ones brought before us in review, as they may depend in a very great degree upon the rest. But we proceed to consider them. The fifth is, that if the jury believe the plaintiff has better title to the ground in dispute than the defendants, they must find for the plaintiff. It is true, in ejectment the plaintiff must recover on the strength of his own title, but here the charge must be taken in connection with the case. There was no outstanding title, and only a question of prior possession. The charge did not amount to much, but what there was of it was very harmless. It amounted to telling the jury to find for the plaintiff if they thought they ought to.

The seventh instruction was properly refused. Especially in the absence of any custom or local regulation, a right of property, once attached in a mining claim, does not depend upon mere diligence in working it. Not to work it may be a circumstance of some weight, tending to show abandonment, and this abandonment of a claim resting-for validity only on possession, may be sufficient to defeat the title. But this principle is wholly different from that invoked. This is not inconsistent with the doctrine in Kimball v. Gearhart, which was the case of a ditch; in which case we held the right to depend upon the prosecution of a purpose to appropriate. The right of a mining claim vests by the taking in accordance with local rules. Nor is the other portion of the requested charge better sustained. The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as the result of a noncompliance with such of them as make noncompliance a cause of forfeiture.

The rule of estoppel invoked by the eleventh instruction, requested to be given, is too broadly stated. It is not the making of improvements, or expending of money on another’s property, which entitles the person so expending to hold the property, or even the improvements; but it is the fraud of the owner, who silently, or otherwise, encourages the expenditure. But this fraud only exists, at the very most, where the owner knows that the other person is making the expenditures, and also knows that he makes them under the Iona fide reasonable belief that he is the owner of the property. Several of these important elements of this doctrine are left out of the charge.

The thirteenth instruction asked “ that all efforts made and work done outside of the limits of the claim in dispute, with a bona fide intent to work the claims, are justly considered as work done upon the claims by relation and intendment.” This charge is not very clearly expressed; but the proposition cannot be maintained as stated. To have the effect attributed, the work done outside must have some direct relation to the claim, or be in reasonable proximity to it. Besides, the phrase “ all efforts made outside of the claim” would include many things, such as negotiations, traveling, preparations for work, contracts and the like, which could in no sense be said to be work done on the claims. If the proposition can be maintained, that work done in the immediate neighborhood of the claims, with the intent to work them, is equivalent to working on the claims, (which we do not admit) yet it is impossible to hold that all work, of every sort, done at any distance from the claims, and efforts of every sort, so made, are equivalent to labor done on the claims, even if we could assign a definite meaning to the words “ by relation and intendment,” which qualify the principle.

We are asked to review the evidence, for the purpose of overruling the order refusing a new trial. We have looked at it, and find that it is conflicting. We do not interfere in such cases; and in no class of cases coming' before us do we feel so much reluctance as we do in this class, to interfere with the verdict of the jury and the supervising discretion of the presiding Judge.

There is no substantial error in the verdict and judgment. The mere fact that the verdict is entitled in the name of the plaintiff and one of the defendants is immaterial. It need not have been entitled at all.

The judgment is affirmed.