Colman v. Clements

Crocker, J. delivered the opinion of the Court—Horton, J. concurring.

This is an action brought by four plaintiffs against eight defendants to recover the possession of the undivided five-thirtieths of a mining claim in Calaveras County. It appears that about the fifth of February, 1861, one Samuel Colman, with two others, took up and marked out 4,500 feet of a copper claim in the name of themselves and others, amounting to thirty persons in all. These names included the present plaintiffs and defendants. Some of these names were included without the previous knowledge or consent of the parties. Colman afterward sold out his interest to one of the plaintiffs, William Colman. Afterward, sometime about the first of June, 1861, twenty-three of the persons named in the original location, with seven others, formed a new company and relocated the same ground in their own names, and have continued in possession ever since, claiming that the original location had been abandoned by failure on the part of those left out of the new organization to perform the work required by the mining rules and customs. Only eight out of the thirty new locators are made defendants, and these [247]'eight were among the number named in the original location. The case was tried b.y a jury, who found for the plaintiffs, and a judgment was rendered accordingly, from which the defendants appeal.

On the trial, the plaintiffs offered to prove the mining laws and customs, to which the defendants objected that they had not been mentioned or set forth in the pleadings, and could not, therefore, be proved. The complaint alleges, in general terms, that the plaintiffs are the owners of the undivided five-thirtieths of the mining ground in controversy, which is denied in general terms by the answer. So far as the title of the plaintiffs depended upon mining rules and customs, or acts done in pursuance thereof, such proof tended to support such title, and it was not necessary to set forth such mining rules and customs in the pleadings. The Court below did not therefore err in overruling this objection of the defendants.

On the trial, the Court instructed the jury that the possession of one locator was the possession of ah, and the defendants then asked that the following instructions be given : “ That the possession of one tenant is the possession of his co-tenants only so long as the tenant in possession recognizes the co-tenants,” which the Court refused to give, and this is assigned as error. The possession of one tenant in common is presumed to be the possession of all. But such possession may in fact be adverse to that of the co-tenant. The instruction asked for is founded upon the idea that the mere fact that the tenant in possession does not “recognize the co-tenant ” constitutes an adverse possession; and the case of Humbert v. Trinity Church (24 Wend. 577), is cited in support of the position. An examination of thé able opinion of Justice Cowen, in that case, shows that more is required than is stated in the instructions asked for. He holds that the possession of the tenant must be with the intent to hold adversely, and it must appear that such intent has been “ indicated by acts calculated to exclude the complainants from all participation as tenants in common.” In the case of Northrop v. Wright (24 Wend. 221), it was held that a possession by a tenant in common for twenty-seven years, during which he had not recognized the right of his co-tenant, was not sufficient to presume an ouster. There was, therefore, no error in refusing to give the instruction in the peculiar form in which it was' worded.