English v. Johnson

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

The main question in this case arises upon the instructions given by the Court upon the trial. The case was brought to recover certain mining claims. The Court charged the jury, in effect, that possession taken, without reference to mining rules, of a mining claim was sufficient, as against one entering by no better title, to maintain the action ; and further, that this possession need not be evidenced by actual inclosures, but “ if the ground was included within distinct, visible and notorious. boundaries, and if the plaintiffs were working a portion of the ground within those boundaries,” this was enough as against one entering without title. We see no objection to this ruling. In the late case of Altwood & Walsh v. Fricot et al., we laid down some rules on this general subject. The taking up of mineral land in pursuance of the mining regulation of the vicinage gives possessory title to the claims, just as an entry in the land office, or the following of the prescribed rules given by statute, gives a possessory title to public or agricultural land. But it does not follow, because this is the regular and usual way of obtaining possession, that a possession not so obtained would necesrarily be without the protection of the law. Possession not taken in pursuance of these rules would still be good as against one not taking possession in accordance with the rules of the vicinage, but merely coming upon the premises in the same manner as the prior possessor. The actual prior possession of the first occupant would be better than the subsequent possession of the last.

The question arises as to the extent of the possession of the first taker, and the rules which determine this question. In mining claims we require no other acts, as evidence of possession, than those [116]usually exercised by the owners of such claims. A miner is not expected to reside upon his claim, nor to build upon it, nor to cultivate the ground, nor to inclose it. The claim is usually of a small strip of land compared with the extent of ground generally taken up for agricultural purposes. Its only value is in working it and extracting minerals. A party may be in possession by himself, or by his agents or servants. Going on the lead to work it, or even work done in proximity and in direct relation to the claim, for the purpose of extracting, or preparing to extract minerals from it—as, for example, starting a tunnel a considerable distance off to run into the claim—would be a possession of the claim within the meaning of the rule. If, as we held in the case of Attwood & Walsh v. Fricot et al., the party entered under written claim or color of title, his possession, except as against the true owner or a prior occupant, would be good to the extent of the whole limits described in the paper, though the possession be only of a part of the claim. In this case, it seems the plaintiffs took up, in connection with others, these claims sued for, marking.and defining, in the way usual among miners, the limits; and also bought out the interest of two of their associates, original appropriators. But we think where a claim is distinctly defined by physical marks, that possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy or work done be only on, or of a part, and though the party does not enter in accordance with mining rules, or under a paper title. The rule which applies to agricultural land, and holds to a more strict interpretation of a possessio pedis, does not apply to such a case. Inclosure, if not impossible, besides being probably hurtful to other interests and rights, would be wholly useless. It would give no greater or better advertisement of the extent of the claim than these physical signs, nor give any better protection to the premises against intrusion, or show any higher power of dominion. Even actual possession, as applied to agricultural land, is from its nature somewhat constructive ; for there is no such thing as a literal corporal holding of land, even within the limits of an inclosure. A house is said to be in actual possession though not occupied, the claimant having the key and exercising acts of dominion; and in truth, the whole doctrine ot