Morenhaut v. Wilson

By the Court, Niles, J.: The plaintiffs, by their entry, and by the work done upon the shafts and cut, had undoubtedly a prior possession of a portion of the mining claims in controversy. This possession would entitle them to recover at least that portion of the mine from the defendants, who were subsequent locators, unless the plaintiffs had cither abandoned their possession prior to the entry of the defendants, or had forfeited the claim by a non-compliance with the rules or regulations of the miners of the vicinity.

1. It is not found that the plaintiffs abandoned their claims. On the contrary it is found that they were driven away by hostile Indians, leaving their tools at another mine in the vicinity, and did not return prior to the location by the defendants, partly on account of a supposed continuance of Indian hostilities, and partly because of the required expenditure of money, and because they thought they had performed sufficient work upon the mine to entitle them to hold it. This finding substantially negatives that intent on the part of the plaintiffs necessary to constitute an abandonment. (Richardson v. McNulty, 24 Cal. 345; Bell v. Bed Rock T. & M. Co. 36 Cal. 215.)

[2682]. There is no direct finding of the fact of a forfeiture of the claims by the plaintiffs. It was found in substance that during a certain period immediately prior to the entry by the defendants, the plaintiffs had failed to perform the work which the laws and regulations of the mining district declared to be necessary in order to hold the claims. ■ If this could be construed to be a finding of a forfeiture under the mining laws, we should hold it to be a finding without the issues made by the pleadings.

We have held that an abandonment of mining claims by a plaintiff may be shown by the defendant under the general issue. ( Willson v. Cleveland, 30 Cal. 200.)

The instant an abandonment takes place a vacancy in the possession occurs. The right of possession of the former occupant is absolutely lost, and the land becomes publici juris, and free to the occupation of the next comer, whoever it may be. But the occupant of mining claims does not lose his right of possession absolutely by a failure to comply with one or more of the local mining laws, although these laws declare a forfeiture as the result of such non-compliance. He may still remain in possession under his original location, and is entitled to the possession until such time as another shall enter and locate the ground in the manner prescribed by the mining laws, and thereby avail himself of the default of the prior occupant. A defense based merely upon forfeiture does not involve a denial of the plaintiff ’s possession or right of possession at the date of the defendant’s entry. It is analogous to a plea in confession and avoidance— admitting possession and a right of possession in the plaintiff, which would have continued in him but for the defendant’s entry and location, which, by virtue of the mining laws, terminated the right. We think this is a special issue, and can be presented only by a special plea.