7 Nev. 213 | Nev. | 1872
By the Court,
Trespass for entering upon a tract of land and removing there from certain tailings claimed by the respondents. The judgment below was for the plaintiffs, awarding to them eight hundred dollars damages, and enjoining the defendant from a repetition of the acts complained of. The learned judge below found that upon the twenty-first day of March, a. d. 1870, the plaintiffs entered upon the land in question, which is a long narrow tract, upon which the tailings were deposited; caused a survey thereof to be made and recorded, and marked the boundaries by red posts firmly set in the ground at each corner, and one in the center of the south boundary line; that continuously thereafter they have been engaged in digging up, hauling away, and milling the tailings deposited thereon; that in August, a. d. 1870, they built a small cabin within the boundaries designated, using it for storing the tools employed by them on the premises and for other purposes; that they had applied to the proper state authorities to purchase a portion of the land; deposited the consideration therefor, and also received from the Central Pacific Railroad Company a contract whereby it agreed to convey to them the residue as soon as it should receive a patent therefor from the government, the land being within a section granted to that corporation by the Act of Congress of July 1st, 1862. On the seventh day of December, the defendant entered upon the land and began to remove the tailings, and before the suit was brought' had removed about two hundred tons, valued at four dollars a ton. Shortly after his entry upon the premises, he also made application to the state to purchase that portion of the land upon which the trespass wras committed. Neither he, nor the plaintiff, however, had acquired any title thereto from the state at the time of trial. The claim which he made to the land, years before the time of this trespass, appears to have been abandoned, and is therefore of.no weight in this case. The court finds, also, that ’the land in question was utterly useless, and of no value except for the tailings deposited on it.
It must be borne in mind throughout the case, that in an action of trespass it is only necessary for the plaintiff to prove a rightful possession in himself; it is not incumbent on him to establish any title beyond that. The right of property may be either in the government or a third person. In either case where the controversy is between persons neither of whom claims the real title, the question turns simply on the best right of possession. The plaintiff, therefore, in such action is only called upon to prove that the property Avas rightfully in his possession as against the defendant at the time of the acts complained of, and that the defendant committed the injury. Does the proof in this case bring the plaintiffs Avithin the rule ? It is argued not; that they had acquired no such possession of the land in question as to entitle them to its possession as against the defendant.
It is admitted by the .parties, and so found by the court beloAV, that the land in question is of no value except for the tailings, and that they are valuable only for the gold and silver Avhich they contain. So it is manifest from the evidence that neither plaintiffs nor defendant claimed the land for any purpose except that of securing such tailings; in other words, it is claimed by them for mining'
It does not seem to be questioned but the plaintiffs had designated the boundaries of this claim by distinct physical marks. They had ’ placed large posts painted with a red color at its several corners, and also an additional one in the centre of the south line. But as there appears to be no question in the case as to the fact that the boundaries were marked by distinct visible monuments, it is unnecessary to discuss the question further. Their possession was, therefore, all that was required, and was sufficient to enable them to hold and protect it. With this view of the case it is unnecessary to decide what right or title,-if any, the plaintiff acquired by means of the contract with the railroad company'. Nor can it be claimed that the defendant acquired any right or title to the tailings gathered together, or, as it is claimed, severed from the land by him whilst the plaintiffs were in the rightful possession of the premises, for their right to the tailings was coextensive with their right to the land. And as we have shown they had such right and possession at the time of the entry of defendant, they had an equal right to and possession of the tailings.
The only remaining question argued in this court arises out of the action of the court below in placing a receiver in possession of a certain quantity of the tailings, removed in violation of a restraining order, and. subsequently adjudging the title to the same to be in the plaintiffs. None of the proceedings had in the appointment of the receiver, and none of the evidence touching the removal of the property in violation of the order of court, appear in the record. Under such circumstances this court does not feel warranted in attempting a review of the action of the court below, as it would be compelled to do so with no satisfactory information of the facts upon which its action was taken. However, if we were allowed to act upon the facts as related in the brief of counsel for appellant, we should not hesitate in holding that the court below was fully
Judgment below must be affirmed, and it is so ordered.