Pralus v. Jefferson Gold & Silver Mining Co.

By the Court, Crockett, J.: This is an action founded on section two hundred and fifty-four of the Practice Act, to quiet the plaintiffs’ title to a piece of mining ground in Yuba County. The complaint avers, among other things, that at the commencement of the action the plaintiffs were in the possession of the mining ground in contest. This was a material and traversable allegation, which it was incumbent on' the plaintiffs to prove, if denied. Without that averment the complaint would have been demurrable. (Ritchie v. Dorland, 6 Cal. 33; Curtis v. Sutter, 15 Cal. 259; San Francisco v. Beideman, 17 Cal. 443; Van Winkle v. Hinckle, 21 Cal. 343; Rico v. Spence, 21 Cal. 504; Lyle v. Rollins, 25 Cal. 437.)

The answer explicitly denies the possession of the plaintiffs, and avers, on the contrary, that the defendant and the grantors of defendant “ have been in the quiet, peaceable and undisturbed possession of said mining ground for the last six years and more, and have held and worked the same in accordance with the mining rules and regulations of said Brown’s Valley Mining District.”

The findings on the question of possession are, in substance, that in September, 1862, the plaintiffs made their location of one thousand feet, set stakes upon the ledge at the north and south ends, and commenced work; that no notices were put up on the ground, hut in the same month a notice of their claim was filed in the County Recorder’s office; that in the [560]latter part of 1862 the plaintiffs performed work on the ledge to the value of sixty or eighty dollars in prospecting the ledge and sinking holes along the line of it, and in ¡November or December, 1863, a shaft was sunk to the depth of twenty-five feet, and in the Spring of 1864 some further work was done; that in 1853 Eeed & Frierson, under whom the defendant claims, laid claim to a portion of the ledge now claimed by defendant; that in 1855 one Eule entered upon that portion of thededge then known as the Jefferson. Claim, as a tenant of Eeed’s interest, under a lease from him, and did some work upon the claim. The Court then finds as follows:

“ There are but two methods by which to prove possession of a mining claim, to enable a party to maintain an action for it. First, by showing an actual possession, and this would doubtless be sufficient with or without mining laws; but the possession must be actual. In this case neither party pretends to show such a possession beyond the three or four feet square upon which prospect holes were dug. This would defeat plaintiffs’ action if a recovery was sought upon that right. Second, by a constructive possession under the rules or regulations of miners. Such a possession the defendants did have for years prior to the location of the plaintiffs.”