Waring v. Crow

California Supreme Court Jul 1, 1858Published

Before: Baldwin

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Holding. The court held that a tenant in common may maintain an action of ejectment against an adverse claimant for his specific interest in a mining claim without joining his co-tenants. Furthermore, the court held that a co-tenant's absence or failure to pay assessments does not constitute abandonment or forfeiture of his interest.

Issues

Whether a plaintiff must join all co-tenants in an action of ejectment for a mining claim.
Whether a co-tenant's absence or failure to pay expenses constitutes abandonment or forfeiture of his interest.
Whether the passive acquiescence of co-tenants in an unauthorized sale of a partner's interest can divest the owner of title.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In order to a full vindication of plaintiff’s rights, and full investigation of the merits of the controversy, it was only necessary to sue the party who interfered with the plaintiff’s property, or did him wrong.”

“It is too clear for argument, that the mere passive acquiescence of the other partners or tenants in common in a sale of the interest of the plaintiff by a party having no title, cannot confer any upon the vendee.”

Synopsis

In an action of ejectment to recover an undivided interest in a mining claim, it is not necessary to make parties defendants in such action, who are in possession of such claim, holding other undivided interests, and who claim no right to the interest sued for.

It is only necessary, in such a case, for the plaintiff to sue the party who interferes with his rights.

Where the Court instructed the jury in such action, that “where an abandonment is sought to be established hv the act of the party, the intention alone governs ; and if such party leave a mining claim, with the intention not to return, his abandonment is as complete, if it exist for a minute or a second, as though it continued for years ; but if he left with the intention of returning, he might do so at any time within five years; provided, there was no rule, usage or custom of miners of such a notorious character as to raise a presumption of an intention to abandonHeld, that the question of abandonment was fairly left to the jury.

The purchaser of a mining claim can only acquire, by such purchase, such right or title as his vendor had at the time of sale.

Possession of one partner or tenant in common of a mining claim is the possession of ail.

Where the tenant in common, or partner, goes away and remains absent from the premises, leaving his associates in possession, it creates no px-esumption of abandonment ; nor does his refusal to pay, or delay in paying the expenses of the business, or the assessments, create of itself a forfeitui'e.

In order to the enforcement of the forfeiture of the interest in the claim, some appropriate action by suit must be taken to liquidate the demand, and sell the property, or there must be at least clear and unequivocal proof of abandonment.

The nxei’e passive acquiescence of the other partners or tenants in common in a sale of the interest of the plaintiff by a party having no title, cannot confer any upon the vendee.

Where a party’s rights to a mining claim are fixed by the rules of property, which are a part of the general law of the land, they cannot be divested by any mere neighborhood custom or regulation.

I. The Court erred in overruling the defendant’s demurrer to the complaint.

There was a non-joinder of parties defendant.

[370]The plaintiff should have brought his suit against his copartners for his undivided interest in said claims, and for an accounting of the proceeds. Schelper v. Evans et al., 4 Cal., page 212.

Ejectments will not lie for the possession of a mining claim where the facts show that the claim is undivided and held in common by four copartners, three of whom stand by and acquiesce in the sale and purchase by an innocent person in good faith.

If one of the copartners suffer thereby, he must bring a suit against his copartners. An action of ejectment may be sustained on the ground of a prior possession alone; but to continue such possession there must be an actual Iona fide occupation or possessio pedis; a subjection of it to the will and control of the possessor as contradistinguished from the mere assertion of title. See Plume v. Seward et al., 4 Cal. 94.

2d. The evidence shows that plaintiff had abandoned his interest in the claim, and the instructions of the Court on this head were wrong.

“ Abandonment may arise from a single act, or from a series of acts; and a party once having abandoned his claim, will not be permitted to come in within the time allowed for commencing civil action to reassert his claim, to the prejudice of those who may have in the meantime appropriated it.” Davis v. Butler, 6 Cal. R. 510.

Where prior possession is relied upon, it will fail, if it be shown that he voluntarily abandoned his possession. Bequette v. Caulfield, 4 Cal. 278.

It cannot be contended in this case that defendant is a trespasser or wrongdoer, because he came into possession of said claims with a full knowledge of three-fourths of plaintiff’s copartners by purchase, and with their full knowledge and consent, and under color of title.

Before plaintiff can seek equity he must first do equity. He should first have tendered his proportion of all the expenses of opening up of said claims and of reconstructing said flume.

3d. In the case of Hix v. Bell, 3 Cal. 219, this Court has decided the question of the admissibility of miners’ laws governing the particular localities. I do not conceive, in the introduction of those laws as evidence, that it is necessary to show when the meeting was held, how many were present, whether each and every person present acquiesced

Waring v. Crow

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