McTarnahan v. Pike

Vanclief, C. The action is ejectment to recover possession of fifty acres of placer mineral land described by legal subdivisions of section 22, township 2, range 14 north, Mt. Diablo meridian, and called “ Crystal -Spring Gravel Placer Mine,” situate in the county of Tuolumne.

The complaint is in the most general form, alleging, in substance, that plaintiffs own the demanded premises and are entitled to the possession thereof, and that deféndant is wrongfully in possession and wrongfully withholds the possession from the plaintiffs.

The answer of the defendant specially denies each allegation of the complaint, except that he withholds the possession, and affirmatively alleges that defendant is entitled to the possession by right and title derived from his grantors, who, in April, 1873, had entered and paid for the land in the United States land-office, and received a certificate of purchase therefor.

Further answering, defendant alleged that for more than seven years last past he had been in the open, continuous, notorious, exclusive, peaceable, and adverse possession of the demanded premises, as against all persons except one Wiggins, who was a tenant in common with him, and especially as against the plaintiffs; and further alleges that he and his grantors and tenants in common have been in like adverse possession for more than fifteen years last past.

[542]In the seventh division of his answer, the defendant alleges as a further defense, among other things, substantially, that the only right or title under which plaintiffs claim arises from “ a pretended entry of said land at the United States land-office ” as a placer mining claim, which entry was founded upon fraudulent proceedings and fálse testimony and affidavits as to having posted on the claims the plat and notice for the period of sixty days, and as to having done five hundred dollars’ worth of work as required by law; “that when said attempted locations were made, all of said land was, and long prior thereto had been, and, now is, in the adverse, open, notorious, continuous, exclusive, and peaceable possession of said defendant, and that said plaintiffs and applicants well knew such to be the case that the register and receiver of the land-office were deceived and imposed upon by the aforesaid false affidavits and testimony, and were thereby induced to issue to plaintiffs the certificate of purchase under which they claim the land; that defendant, by his attorney, has filed in the general land-office at Washington a protest against the allowance of said entry by plaintiffs, in which is set forth all the facts showing the invalidity of the application and entry by plaintiffs, and he verily believes a hearing will be granted in the matter, and that said entry will be canceled.