15 Cal. 100 | Cal. | 1860
Baldwin, J. and Field, C. J. concurring.
This is an action to recover possession of certain mining ground situated in Butte county. The pleadings are verified. The plaintiffs aver that they acquired from one Larkin a title in fee simple to a tract of land, containing several hundred acres, and including the mining ground in controversy; and they claim under the title thus acquired, and their actual possession of the land at the time of the entry by the defendants. They aver also that the land was occupied by them for agricultural and mining purposes, but do not state that any use was made of the particular portion now held by the defendants. The averment is general, that the whole tract was possessed and occupied for these purposes. The case was tried by the Court without a jury, and after the introduction of evidence by both parties, a judgment for the plaintiffs was rendered upon the pleadings alone. No facts are found, the Court holding that the material allegations of the complaint were not denied by the answer, and that the plaintiffs were therefore entitled to recover. “The material averments of the complaint,” says the Court, in its decision, “ are not denied by the answer. Possession and ouster being sufficient to maintain the action, I do not deem it necessary to pass upon the plaintiffs’ title derived from Larkin.” The denial of this title was regarded as sufficient, but as the plaintiffs relied upon their possession as well as their title, and as the allegation of possession, and the subsequent allegations of the complaint were not denied, it was held that the answer presented no obstacle to a recovery. The pleader evidently intended to deny specifically each of these allegations, but it is clear that he has failed to do so, and that each and all of the denials are fatally defective. But while we agree thus far with the Court below, we do not concur in the conclusion that the plaintiffs were entitled to recover upon the pleadings. The defendants set up as affirmative matter in defense of the action, that at the time they entered upon the ground in dispute, it was a part of the public domain of the United States, and contained large and valuable deposits of gold, that they entered upon and took possession of it for mining purposes, and that they have since held and used it for such purposes only. These facts being proved, the plaintiffs could not recover without showing such an
It is provided by statute, “that all lands in this State shall be deemed and regarded as public lands, until the legal title is shown to have passed from the Government to private parties.” (Wood’s Digest, 527.) The presumption created by this statute is not necessarily irreconcilable with the presumption of ownership arising from the mere fact of possession. This presumption is constantly indulged in favor of the possessor against a trespasser; but we held in Burdge v. Smith, decided at the October Term, that when a person goes upon mineral land for the purpose of mining, he cannot be presumed to be a trespasser; for if the land be not private property, he has the right to enter upon it for that purpose; and until it is shown that the title has passed from, the Government, the statutory presumption that it is public land must apply. The doctrine, that by mere entry and possession, a right may be acquired to the exclusive enjoyment of any given quantity of the public mineral lands of the State, has been repeatedly condemned by this Court, and if it could be maintained, would be fraught with the most pernicious and disastrous consequences. The appropriation of these lands in large tracts for agricultural and grazing purposes, and the concentration of the mining interest in the hands of a few persons, to the exclusion of the mass of the people of the State, are some of the evils which would necessarily result from such a doctrine. It must not be understood, however, that within the limits of the mines all possessory rights and all rights of property, not founded upon a valid legal title, are held at the mercy and discretion of the miner. Upon this subject, it is impossible to lay down any general rule, but every case must be determined upon its own particular facts. Valuable and permanent improvements, such as houses, orchards; vineyards, etc., should, undoubtedly, be protected; as also, growing crops of every
The judgment must be reversed, and the cause remanded for a trial upon the merits. The defendants should be permitted to amend their answer upon such terms as the Court below may deem just and proper.
Judgment reversed and cause remanded.
On petition for rehearing, Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.
The tone of the petition in this case, though disrespect is disclaimed, is scarcely decorous. We merely allude to this circumstance, that we may have no occasion to notice any deviation from strict professional propriety, in this respect, in future.
We still adhere to our former view of the case. The only question is, whether the mere possession of a large tract of mineral land is sufficient to support ejectment, as against a person entering upon and occupying the land for mining purposes. We held that it was not, and we see no reason for changing that opinion. The counsel for the plaintiffs seem to forget, that the case was decided upon the pleadings alone. They say, “ Surely, no one can suppose that where a plaintiff’s case was made out, the mere allegation of affirmative matter by a defendant would be sufficient to defeat it.” Surely, no one can suppose that a plaintiff is entitled to recover upon the pleadings, when the answer contains 'affirmative matter which, if true, constitutes a valid defense to the action.
Rehearing denied.
