34 Cal. 558 | Cal. | 1868
This is an action founded on section two hundred and fifty-four of the Practice Act, to quiet the plaintiffs’ title to a piece of mining ground in Yuba County. The complaint avers, among other things, that at the commencement of the action the plaintiffs were in the possession of the mining ground in contest. This was a material and traversable allegation, which it was incumbent on' the plaintiffs to prove, if denied. Without that averment the complaint would have been demurrable. (Ritchie v. Dorland, 6 Cal. 33; Curtis v. Sutter, 15 Cal. 259; San Francisco v. Beideman, 17 Cal. 443; Van Winkle v. Hinckle, 21 Cal. 343; Rico v. Spence, 21 Cal. 504; Lyle v. Rollins, 25 Cal. 437.)
The answer explicitly denies the possession of the plaintiffs, and avers, on the contrary, that the defendant and the grantors of defendant “ have been in the quiet, peaceable and undisturbed possession of said mining ground for the last six years and more, and have held and worked the same in accordance with the mining rules and regulations of said Brown’s Valley Mining District.”
The findings on the question of possession are, in substance, that in September, 1862, the plaintiffs made their location of one thousand feet, set stakes upon the ledge at the north and south ends, and commenced work; that no notices were put up on the ground, hut in the same month a notice of their claim was filed in the County Recorder’s office; that in the
“ There are but two methods by which to prove possession of a mining claim, to enable a party to maintain an action for it. First, by showing an actual possession, and this would doubtless be sufficient with or without mining laws; but the possession must be actual. In this case neither party pretends to show such a possession beyond the three or four feet square upon which prospect holes were dug. This would defeat plaintiffs’ action if a recovery was sought upon that right. Second, by a constructive possession under the rules or regulations of miners. Such a possession the defendants did have for years prior to the location of the plaintiffs.”
The findings contain nothing more on the question of the actual possession of either the plaintiffs or defendant at the commencement of the action.
We construe the findings to declare distinctly that neither the plaintiffs nor defendant ever had the actual possession at any time; and certainly the Court does not find that the plaintiffs, at the commencement of the action, had either the actual or constructive possession.
The plaintiffs’ counsel made an unsuccessful effort to correct the findings in some particulars, but not in those relating to the question of the possession of the plaintiffs.
The plaintiffs also moved for a new trial on the ground,
The Court below, upon the findings, entered judgment for the defendant, and under these circumstances we must assume that the plaintiffs failed to establish an actual possession at the time of the commencement of the action.
This must of itself be decisive of this action, unless it can be maintained on a constructive possession, and unless the plaintiffs established such constructive possession. If such possession would avail the plaintiffs in this form of action it was incumbent on them to establish it as an affirmative fact. Do the findings- establish in the plaintiffs the constructive possession at the commencement of the action? We think not. On the contrary, the Court distinctly finds, that the defendant had the constructive possession for years “ prior to the location of the plaintiffs,” and no fact is contained in the findings from which it can be inferred that the plaintiffs, at the commencement of the action, had such constructive possession, unless the facts found establish the existence of local mining laws in that district, and that the plaintiffs or their predecessors in interest complied with them, and that the ground was liable to appropriation for mining purposes. There can be no constructive possession of mining ground on the public domain unless it be from a compliance with the local mining customs, laws and regulations.
All that is revealed to us by the findings in respect to mining rules and regulations in that district is, that as early as 1852 regular semi-annual meetings of the miners of Brown’s Valley were held, at which laws were passed for the holding of claims and the regulation of the mines, and in 1855 the semi-annual meetings were changed to annual meetings; that a law of 1853 required each claim to be
If the findings were defective in omitting to find a material fact on this branch of the case, the plaintiffs, at the proper time and in the proper manner, should have moved to correct them. But there was no motion to correct them in this particular. If the Court found any fact in respect to the mining laws, and the action of the plaintiffs under them, contrary to the evidence, the plaintiffs should have specified it on their motion for a new trial. But there were no such specifications. On the contrary, all the specifications related to acts done by the defendant and its grantors.
Our conclusions, therefore, are: First—That in order to maintain an action of this character in respect to a mining claim on the public domain, the plaintiff must establish at least a constructive possession at the time of the commencement of the action. Second—That such constructive posses
The plaintiffs having failed to show either an actual or constructive possession of the ground in contest at the time of the commencement of the action, judgment was properly rendered for the defendant.
Under our view of the case, it is unnecessary to decide the other points presented in the record.
Judgment affirmed.