Bell v. Bed Rock Tunnel & Mining Co.

By the Court, Sanderson, J. : This is an action to recover the possession of certain mining ground called the Monte Christo Claims. The defenses, so far as they illustrate the grounds of the appeal, are: First— A denial of the plaintiffs’ title; and Second—Forfeiture of their title under the mining rules and regulations of the district in which the Monte Christo Claims are situated. In the Court below judgment passed for the defendant. The plaintiffs moved for a new trial, which was denied, and then appealed.

Two points are made by appellant. First—Error of the Court in excluding certain testimony offered by the plaintiffs; and Second—In giving an instruction in relation to the question of forfeiture.

1. During the trial the defendant introduced testimony tending to show that in the Fall of 1865 the plaintiffs, or their grantors, who had been theretofore working the Monte Christo Claims, ceased working the same, and removed their sluices, quicksilver, and tools, and had not since worked upon or used the claims. In rebuttal of this testimony, the plaintiffs offered to prove that in March or February, 1867, one Williams offered to purchase the Monte Christo Claims from them, and that they refused to sell; and that the offer was made by Williams on behalf of the defendant. To this the defendant objected, upon the ground of irrelevancy, and also upon the ground that no authority was shown in Williams to act in the matter on behalf of the defendant. The objection was sustained, the plaintiffs excepting.

The testimony before offered by the defendant was relevant to two distinct defenses: 1st.. The denial of the plaintiffs’ title; 2d. Its forfeiture under the mining rules and regulations. It was relevant to the first, because it tended to prove an abandonment by the plaintiffs long prior to the commencement of the action, and, therefore, that they had no title to the Monte Christo Claims at the date of the alleged [218]entry of the defendant, for, although abandonment was not specially pleaded, evidence of abandonment was admissible on the question of the plaintiffs' title. (Wilson v. Cleaveland, 30 Cal. 192.) If, then, the defendant offered the testimony for the purpose, in whole or in part, of showing an abandonment, the testimony of Williams should have been received in rebuttal of the abandonment, for such was its tendency. As we held in St. John v. Kidd, 26 Cal. 263, in order to sustain an allegation of abandonment, it must appear that there was a leaving of the claim without any intention of returning, or making any further use of it. The leaving being established, it is competent for the opposite party to show any acts explanatory of the leaving, which tend to show that it was not accompanied with an intent not to return. Thus, in Richardson v. McNulty, 24 Cal. 339, we held that a judgment roll in an action by Richardson to recover the same ground against other parties was admissible upon the question of the intent with which he had left the ground, and tended to show that he had not left with the intent not to return. We also held the same doctrine in Wilson v. Cleaveland, supra; and in conclusion, said: “Upon a question of abandonment, as upon a question of fraud, a wide range should be allowed, for it is generally only from facts and circumstances that the truth is to be discovered, and both parties should be allowed to prove any fact or circumstance from which any aid for the solution of the question can be derived.”