Morenhaut v. Wilson, 52 Cal. 263

Morenhaut v. Wilson

52 Cal. 263 | Cal. | 1877

By the Court, Niles, J.:

The plaintiffs, by their entry, and by the work done upon the shafts and cut, had undoubtedly a prior possession of a portion of the mining claims in controversy. This possession would entitle them to recover at least that portion of the mine from the defendants, who were subsequent locators, unless the plaintiffs had cither abandoned their possession prior to the entry of the defendants, or had forfeited the claim by a non-compliance with the rules or regulations of the miners of the vicinity.

1. It is not found that the plaintiffs abandoned their claims. On the contrary it is found that they were driven away by hostile Indians, leaving their tools at another mine in the vicinity, and did not return prior to the location by the defendants, partly on account of a supposed continuance of Indian hostilities, and partly because of the required expenditure of money, and because they thought they had performed sufficient work upon the mine to entitle them to hold it. This finding substantially negatives that intent on the part of the plaintiffs necessary to constitute an abandonment. (Richardson v. McNulty, 24 Cal. 345; Bell v. Bed Rock T. & M. Co. 36 Cal. 215.)

*2682. There is no direct finding of the fact of a forfeiture of the claims by the plaintiffs. It was found in substance that during a certain period immediately prior to the entry by the defendants, the plaintiffs had failed to perform the work which the laws and regulations of the mining district declared to be necessary in order to hold the claims. ■ If this could be construed to be a finding of a forfeiture under the mining laws, we should hold it to be a finding without the issues made by the pleadings.

We have held that an abandonment of mining claims by a plaintiff may be shown by the defendant under the general issue. ( Willson v. Cleveland, 30 Cal. 200.)

The instant an abandonment takes place a vacancy in the possession occurs. The right of possession of the former occupant is absolutely lost, and the land becomes publici juris, and free to the occupation of the next comer, whoever it may be. But the occupant of mining claims does not lose his right of possession absolutely by a failure to comply with one or more of the local mining laws, although these laws declare a forfeiture as the result of such non-compliance. He may still remain in possession under his original location, and is entitled to the possession until such time as another shall enter and locate the ground in the manner prescribed by the mining laws, and thereby avail himself of the default of the prior occupant. A defense based merely upon forfeiture does not involve a denial of the plaintiff ’s possession or right of possession at the date of the defendant’s entry. It is analogous to a plea in confession and avoidance— admitting possession and a right of possession in the plaintiff, which would have continued in him but for the defendant’s entry and location, which, by virtue of the mining laws, terminated the right. We think this is a special issue, and can be presented only by a special plea.

In the case of Bell v. Brown, (22 Cal. 681) expressions were used seemingly at variance with the doctrine here announced. But it was unnecessary for the purpose of that decision to consider—and the Court evidently did not' consider—the obvious and important distinctions between an abandonment and a forfeiture under the local mining law.

3. It is urged by the respondents that the findings do not *269show that all of the plaintiffs had acquired the titles of the original locators. But it appears that some of the plaintiffs were among the original locators of the claims. As tenants in common with the other locators, they could maintain an action for the recovery of the land, without joining their cotenants with them. If other persons were improperly joined as plaintiffs, the objection should have been taken by the answer.

4. The appellant asks for a judgment upon the findings. The only acts of location upon the part of the plaintiff, found by the Court, was the posting of a notice upon a certain tree, upon the mine, claiming three thousand feet from the notice along the lead, in a supposed northeasterly direction. It does not appear that the boundaries of the claim were designated by any visible monuments or marks upon the ground, other than the tree upon which the notice was posted. It is evident that an actual possession of the entire three thousand feet described in the complaint cannot be successfully claimed by virtue of this location. Nor does it appear from the findings that the plaintiffs had that constructive possession which arises from a location made in accordance with the customs or regulations of miners. No local regulations, and no customs or usages, either local or general, affecting the mode or manner of locations, arc found by the Court. The extent of the actual possession of the plaintiffs by means of their works upon the ground is also left entirely undetermined. We have not, therefore, the data upon which to order judgment upon the findings, and the case must go back for a new trial. ,

Judgment reversed, and cause remanded for a new trial.