Haggin v. Kelly

HENSHAW, J.

Plaintiffs averred ownership and right of possession in a certain mining claim; that defendants are in possession of the property, and wrongfully and unlawfully withhold the same; that they have taken, and are taking, large quantities of gold and silver ore therefrom; that plaintiffs have demanded of defendants that they desist from mining the claim and from taking and removing the ore, but they refuse to do so, and threaten to continue their mining operations; plaintiffs are unable to determine how much gold and silver defendants are taking or will take from the mine; defendants are insolvent, and plaintiffs will suffer great ana irreparable damage. The prayer was for an injunction enjoining and restraining defendants during the pendency of the action from mining on said claim, and from taking and removing ore therefrom, and that on the final hearing the injunction be made permanent; for restitution of lands and mining claim, and for costs of suit. The answer of defendants consisted of a denial of the ownership of plaintiffs, an admission that they are in possession, coupled with a denial that they are wrongfully or illegally in possession, and a denial that they have taken any gold or silver bearing ore from the claim. For a separate defense they aver that the annual work required by the mining laws of the United States and of the state of California for the year 1898 was not done and performed upon the mining claim by the plaintiffs, and that on the first day of January, 1899, the mining claim and premises were open public land of the United States, subject to location under the mining laws of the United States; that on the third day of January, 1899, the ' defendants relocated the claim.

For still another defense the defendants pleaded that plaintiffs had abandoned their claim.

Trial was had upon the issues thus joined. A jury was impaneled, and the court, at the suggestion of defendants’ counsel, ruled that the case was a ease in equity, and not one in law, and that the jury was impaneled only for the purpose

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of advising the court upon the issues of fact. To this ruling plaintiffs, by their attorneys, excepted, and insisted that it was an action at law. The court further directed the attorneys for the respective parties to present special issues based upon the pleadings in the case for the jury to determine. At the conclusion of the trial special issues were submitted to the jury, which issues covered all the material and disputed matters. The findings of the jury upon these special issues, were wholly favorable to plaintiffs, and were sufficient, had they been accepted by the court, to have entitled plaintiffs to the judgment which they sought. The court, however, still treating the action as one in equity, disregarded these special issues, and in lieu of them prepared its findings and conclusions of law favorable to defendants, and entered judgment for them accordingly. From this judgment and from the order of the court refusing plaintiffs a new trial they have appealed.