Hughes v. Desmond

CROCKETT, J. — The contest in this case relates to a piece of mining ground situate on the public domain; and a judgment having been entered for the defendants, the plaintiff appeals, as well from the judgment as from an order denying his motion for a new trial. The court finds that in the year 1857, Haney, A.tkinson & Co., through whom the plaintiff deraigns title, were in the occupation, for mining purposes, of a certain parcel of mining ground; and Donovan and others under whom the defendents claim, were also in possession of an adjoining mining claim; that in that year, the said claimants and occupants of these two contiguous claims, by mutual agreement, established a division line between them; that by the location of' said line, so agreed upon, the premises in controversy in th s action were included within the claim of Donovan and thers, the predecessors of the [685]defendants. This finding was fully warranted by the testimony, and is conclusive of the rights of the parties, unless the plaintiff has shown some other and better title' than that derived from ITaney, Atkinson & Co. This he seeks to do, on the alleged ground that for more than five years next preceding his ouster by the defendants he had the actual, adverse possession of the premises in dispute; and he claims that, under the statute of limitations, his possession had ripened into a perfect title, as against the defendants, prior to the ouster. But the court finds the fact against him on this point; and his counsel, in order to escape the effect of this finding, attacks it on the ground that it is wholly unsupported by any evidence in the cause. But whilst the evidence is not very satisfactory, as to which of the parties had the actual possession of these premises, during the five years immediately preceding the ouster, there is clearly enough to support the finding, under the well-known practice of this court, which refuses to disturb a finding if there is any substantial conflict in the evidence.

Judgment affirmed.

We concur: Sprague, J.; Temple, J.; Rhodes, C. J.; Wallace, J.