Whitten v. Young

STEEL, J., pro tem. This is an appeal by defendant and appellant Young from a judgment in favor of plaintiffs and respondents permanently enjoining appellant from exercising any acts of possession, and from removing ore from the premises involved, together with damages for the unlawful removal of such ore during the time appellant was in possession.

The facts may be summarized as follows: The action primarily is in the form of an action to quiet title to certain lands in the county of Butte, included within which is a twenty-acre tract, being the premises in dispute here.

Respondents claim title pursuant to a decree quieting title made in 1916, also the uninterrupted use and possession and the payment of all taxes levied or assessed upon the premises since such decree. In 1922 a patent issued upon the premises in question by the United States to the Central Pacific Railway Company under an act of Congress of July 25, 1866 (14 Stats. 239).

Appellant bases his claim, first, as a copartner of lessees under a written lease dated July, 1933, and executed by the respondents herein to George Mostica and C. Callaway, and second, by virtue of a certain lease agreement dated August, 1932, executed to him by George Archibald and others, based on a mining location alleged to have been made by the lessors upon said property.

The evidence discloses that since the decree quieting respondents’ title they have exercised the usual acts of dominion over the property, including the payment of all taxes and the actual mining thereof during the first two or three years of their occupancy. In July of 1933, respondents executed a lease and option to purchase the premises to Mostica and Callaway, who thereupon' entered into possession and performed certain mining operations thereunder. In December of the same year it appears the lease aforesaid was canceled by written, mutual consent of the parties endorsed thereon, and the lessees thereupon assigned to respondents certain [301]equipment and personal property then upon the premises and executed and delivered to respondents a quitclaim deed to said premises.

Appellant claims to have been instrumental in obtaining this lease; that .he entered upon the property as a cotenant with the lessees Mostica and Callaway; that he thereupon asserted an interest in the property, which claim or interest was brought to the attention of the plaintiff Whitten.