Phenix Mill & Mining Co. v. Lawrence

McKee, J.: The action was against the defendant for an alleged unlawful entry on the 13th of May, 1879, upon “those certain leads, lodes, and mining property known as Beatrice No. 1, and Beatrice No. 2, situated at Ivanpah, Clark Mining District, San Bernardino County,” of which, it was claimed, the plaintiffs had had peaceable possession until the day of the unlawful entry thereon by the defendants, and for more than five days before; and after their entry thereon the defendants refused on demand to restore the possession thereof to the plaintiffs.

The possession of the plaintiffs, the entry of defendants, and demand and refusal, are specifically denied; but in a further answer the defendants admit that they entered, in good faith, upon the property on the 13th of May, 1879, believing that the ground was vacant, and subject to location, according to the laws of the United States, and of Clark Mining District.

As to the possession of the plaintiffs, demand and refusal, and the entry by the defendants, the evidence was all one way. The defendants themselves, in their testimony, admit that the company had been in possession of the property since 1878, and [145]that the company, and its predecessor, had expended in tunneling, timbering, and building railroad tracks, dumps, and houses, and in cars and tools, several hundreds of thousands of dollars —probably, says the defendant Lawrence, half a million of dollars. In 1879 the company ceased work upon the mine for a while, but, during the suspension of work, it kept men in general superintendence over the property, and the beys of the houses were in their possession. Both defendants lived near the mine; Lawrence had worked on it for two years for the Ivanpah Company, of which the plaintiff is the successor; Peterson lived within two hundred yards of it; and, on the day of their entry, they knew that the mine was in charge of the men of the plaintiff, and that the keys of the houses were in their possession. The only issuable question was really the intention with which the defendants entered. They claimed in their answer that they .entered in good faith, believing that the ground was vacant, and subject to location according to the mining laws. But a person who knows that a mining claim is in the actual possession of another cannot honestly believe that it is vacant, and subject to entry and relocation; and the entry under such circumstances cannot be made in good faith, unless it is made upon some right, or color of right, or claim of a legal right, to make the entry. Such a claim of right must exist before the entry, to constitute good faith in making the entry. If it does not exist, the entry is made without right or color of title, and is an entry in bad faith; for actual possession in another is prima facie evidence of title in the possessor, and is protected by the law against lawless invasion without right or color of right; but one who has a title and present right of possession may always take peaceable possession of what he claims to be his own. In Townsend v. Little, 45 Cal. 673, the defendant, who was a qualified pre-emptor, and had filed a declaratory statement of her intention to pre-empt a tract of land, which was shown to be part of the public lands of the United States, was allowed to introduce evidence of these things to show her belief of right and good faith in entering upon the land in dispute in that case. And in Powell v. Lane, 45 Cal. 677, the defendant was allowed to show his patent as evidence of good faith in entering upon the land. (See, also, Dennis v. Wood, 48