Trevaskis v. Peard
Before: Henshaw
Synopsis
Appeal—Review—Objection of Respondent.—Where the respondent has taken no appeal, his attack upon the findings and conclusions o£ law cannot he considered; and the only objections which can be reviewed are those urged by the appellant.
Mining Claims — Forfeit ore —Annual Expenditure — Ejeo l’ment. — Where the owner of a mining claim is wrongfully ousted, and work' is done upon the claim by the parties in possession, until an action of ejectment is brought and successfully maintained by the owner, the defendants in such action cannot insist that the mining claim was -forfeited by reason of the failure of the owner, during the time of their hostile possession, to perform the annual expenditure upon the claim required by the Revised Statutes of the United States.
Id.—Abandonment—Evidence—Pleading—Quieting Title.—Abandonment of a mining claim need not be specially pleaded, but may be given in evidence under a denial of title, and may he proved by the plaintiff in an action to quiet title to a mining claim, to rebut a title, set up by the defendant under an earlier location.
Id. —Proof of Abandonment—Finding against Evidence.—Abandonment of a mining claim is proved by evidence that the claimant remove ’ from the claim to mine in another part of the country, where he re - mained for two years, and that he declared that he had abandoned tl. claim, and would never return there again to work, and by the test - mouy of the claimant himself that he had abandoned it, unless it shor.l- - he developed into a paying property; and a finding, in view of such evidence, that he had not abandoned the claim, is against evidence.
Id.—Conditional Abandonment not Recognized.— The law does no. 'recognize a conditional abandonment, but an abandonment must be regarded as absolute, if existing at all.
Id.—Time of Absolute Abandonment.—If the intention to abandon lias been formed and once acted upon, the abandonment is as absolute, if it exists for a moment, as though it continued for years.
Henshaw, J. Appeals from the judgment and from the order denying a new trial.
The action was' brought under section 738 of the Code of Civil Procedure to settle conflicting claims to the land in controversy, being certain placer mining claims. Thomas Peard is the only defendant interested in this hearing. But as he appears merely as respondent, and has himself prosecuted no appeal, his attack upon certain findings and conclusions of law which he claims are unsupported or unsound cannot be considered. The objections which maybe reviewed are those alone which appellant urges.
In 1887 the lands in question were public mineral lands of the United States. Upon that date they were located by Peard and others, to whose rights Peard afterward succeeded. In this location was included about seventeen acres to the north of and adjacent to the land in controversy. The land in controversy lies in section 2, the seventeen acres in section 35. One hundred dollars worth of labor was yearly expended upon the premises by Peard until the year 1891. In 1889, however, an action was prosecuted against him to fore[601]close a miner’s lien upon his claim. The complaint sought to subject to the lien, not the land here in controversy, hut the seventeen acres above referred to. Peard made default in this action, and the judgment declared a lien upon the land in controversy as well as upon the seventeen acres, and decreed a sale in satisfaction of the same. All the land was accordingly sold in compliance with the decree and the order of sale which conformed thereto; but after the sale the court amended its judgment and the order of sale by striking therefrom the portion of the land here in controversy, and limiting the lien to the seventeen acres described in the complaint. The sheriff’s deed executed after these amendments purported to convey all of the land, that here in controversy as well as the seventeen acres, to the purchaser, Simmons. Thereafter Simmons conveyed all of his interest to Henry Trevaskis (husband of this plaintiff) and to Ida Marion. Trevaskis and Marion continued to hold and work the claim. In December, 1893, this defendant Peard commenced an action in ejectment against Henry Trevaskis and Ida Marion to recover the .premises here in dispute. Harriet Trevaskis was not made a party to that action. Judgment therein passed for Peard. Thereupon Trevaskis and Marion abandoned their claim upon it, and Harriet Trevaskis and her married daughter, Ella Raymond, entered upon it and located it as vacant mineral land. Ella Ra)rmond thereafter sold to her mother her interest in the location for an expressed consideration of one dollar, and in due time this action was commenced.
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