Richardson v. McNulty

Mining Claim—Abandonment.—In an action to recover possession of a mining claim, where the defense is an abandonment of the claim by the plaintiff, the judgment roll in an action brought by the plaintiff against third parties to recover possession of the same ground, and in which plaintiff recovered judgment, is admissible in evidence to rebut the presumption of abandonment.

Same—Instructions.—In such case the Court should guard the jury, by proper instructions, from giving the judgment any weight as evidence, except upon the question of abandonment.

Mineral Lands—Occupants op.—The public mineral lands of this State are open to the appropriation of any one, and the one first occupying any portion of the same makes it his by the act of occupancy, and once his, it continues his until he manifests his intention to part with it in some manner known to the law.

Same.—The occupant may part with his interest by selling it, or giving it to another, or by any other mode authorized by law, or he may abandon it.

Abandonment—What Constitutes.—An abandonment can only take place where the occupant leaves the land free to the appropriation of the next comer, whoever he may be, without any intention to repossess or reclaim it for himself, and regardless and indifferent as to what may become of it in future.

Same.—When an abandonment takes place, a vacancy in the possession is created, and without such vacancy no abandonment can take place.

Same.—If the possession of the occupant be continued in another, by the expression of a wish or desire of the occupant to another that he succeed to the possession, and he thereupon takes possession, a gift is the result—there is no vacancy in the possession, and, consequently, no abandonment.

Same.—A mere wish or desire of the occupant, when he leaves the possession, that another may next occupy, without being communicated to that other person, and assented to by him, and accompanied by a transfer of possession, does not amount to a gift.

Erroneous Instruction.—If an erroneous instruction is given to the jury, the judgment will be reversed, unless it appear from the record that the appellant was not prejudiced thereby.

Mining Claims.—In actions to recover possession of mining claims located on the public lands, the doctrine that the plaintiff, if he recover at all, must recover on the strength of his own title, has no application, for neither party has any legal title.

Same.—In such actions, where prior possession is relied on by the plaintiff, the defendant cannot justify his entry by showing the true title outstanding.