Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 20 Cal. 198 at 210.
Appeal from the Fifth Judicial District.
Ejectment to recover nine hundred and twenty-six feet of an underground channel claimed by plaintiffs. The possession of the ground by defendants is admitted by the pleadings.
In June, 1852, a mining association, called the " Experimental Company," or " Allen Oliver & Co.," commenced a tunnel for the purpose of piercing an old subterranean channel in Table Mountain, (then first discovered) containing gold. This company consisted, originally, (in May, 1852) of Allen Oliver, John Oliver, J. Stanfield, S. Stanfield, R. Darling and J. D. Lyon.
In June, 1855, the two Olivers and Lyon placed the following notice near the mouth of the tunnel:
" Notice is hereby given that the Experimental Tunnel Company claim this channel, with all its dips and angles, through Table Mountain, in a westerly or northerly direction, with the right to tunnel and work the same from this gulch or the next gulch to the westward, or from both, if found necessary.
(Signed.) " Allen Oliver & Co."
It does not appear that J. Stanfield, S. Stanfield or R. Darling ever worked upon the claim, or did anything to it whatever. In May, 1852, their names were used as members of the company. In June, 1852, the foregoing notice was placed up, and the tunnel was continuously worked by Daniel Oliver, John Oliver and J. D. Lyon, towards the channel of the mountain, until the second day of May, 1854.
In 1853 the bounds of this claim were run off and designated by blazed trees. This was the same claim as that worked by Oliver & Co. in 1852. A subsequent survey was made, by two witnesses, of this claim in 1857. These witnesses testify that they found the old blazes of the former survey on the trees.
In 1854, May 2d, Daniel Oliver, John Oliver and J. D. Lyon, in conjunction with eleven others, formed themselves into a corporation (the present plaintiff) for the more advantageous working of the claim, Allen Oliver becoming president, J. D. Lyon, secretary, and John Oliver one of the trustees.
The record of incorporation, filed May 2d, 1854, thus states the purposes of the incorporation:
" That the operations of said company shall be confined to the prosecution and completion of the tunnel heretofore known as the Experimental Tunnel, which said work was commenced on or about the first day of June, 1852, and is situated in township number three, county and State aforesaid."
The notice of the old Experimental Company was also taken down, and the following inserted in lieu thereof:
" Claim of Table Mountain Tunnel Company.
" This claim comprises the claim held and occupied by the Experimental Company since its location, on June 12th, 1852, up to this date, and is situated near Jamestown, Tuolumne county, California; said claim commences about one hundred and ten feet west from the entrance of the upper tunnel of said company, and comprises the channel there existing, from this point, with its dips and angles, through Table Mountain; said channel having been heretofore unworkable on account of water, as was proven by many fruitless efforts made previous to the location of said claim.
" Allen Oliver, President.
" J. D. Lyon, Secretary.
" May 2d, 1854."
The claim was also surveyed by the County Surveyor in 1861, from the old landmarks, and a map of it produced in Court.
In 1855, January 9th, the miners of Table Mountain passed a code of laws, providing, among other matters, that a claim for each man should not exceed three hundred feet in width at the base of the mountain; that no person should hold more than one claim by location; that the bounds of claims should be established and defined by permanent erections of wood or stone at each corner, and a notice at each end, and should be recorded; that " companies having already located and worked upon their claims shall have one week to establish their boundaries according to the above provisions; and in the last section that " the foregoing mining rules and regulations shall not be so construed as to conflict in any way with any claims already located and worked upon."
The length of plaintiff's claim along the mountain, as fixed by the blazing of trees in 1853, and the subsequent surveys, was something over 4,000 feet.
Since the incorporation, plaintiff has been continuously at work driving the original tunnel, and working the channel, but it does not appear that it has complied with the local mining laws passed in 1855, in respect to marking boundaries and recording.
On the tenth of January, 1855, (the day after the passage of the miner's rules) the defendants located a claim on the mountain in accordance with the mining rules, their boundaries embracing some 2,000 feet in length of the ground claimed by plaintiff, and defendants have since been engaged in running a tunnel into their claim, and after striking the channel, in working the same. At the time the action was commenced, the tunnel of defendants extended into the claims of plaintiff nine hundred and twenty-six feet.
The plaintiff having proved the facts in reference to its title, substantially as above stated, but having shown no conveyance to itself from the Experimental Company, or any of the original locators, rested, and defendants moved the Court to strike out " all testimony given by plaintiffs of any acts of ownership or possession of the ground or claim in dispute, on the part of any members of the Experimental Company, or any members of the plaintiff corporation, prior to the date of incorporation, on the ground that no conveyance had been shown to the corporation from the Experimental Company, or from such members, of the claim or right of possession of the latter.
The Court granted the motion, to which plaintiff excepted. The Court also at the request of defendants instructed the jury as follows:
" The jury are instructed to disregard all testimony given on the trial in relation to the acts of the Olivers, or of the Experimental Company, or any other company or person, in connection with the claim of the Table Mountain Company, all such testimony having been ruled out by the Court.
" The Table Mountain Tunnel Company can only claim title through their own acts, unconnected with the rights or acts of any former claimant of the same ground, and the jury are instructed to disregard all evidence given by the plaintiffs in support of their claim, of acts done prior to the second of May, 1854. Whatever rights plaintiffs may have must have accrued since that date."
The Wallaville laws, referred to in the opinion, were a set of rules established by the miners in the vicinity of Table Mountain, in 1851, and amended in 1853, regulating the location and holding of ravine and surface diggings. These rules were offered in evidence by the defendants, and admitted under plaintiffs' objection.
The jury returned a verdict for defendants, and a motion for new trial having been made and denied, from this order, and also from the judgment, plaintiffs appeal.
COUNSEL:
Ejectment is a possessory action. " With us the judgment is conclusive of only two points--the right of possession in the plaintiffs, and the occupation of the defendant at the institution of the suit." (Yount v. Howell , 14 Cal. 468.)
The mere fact of the owners forming themselves into a corporation, could not deprive them of all the evidences of possession, arising from posting notices, marking bounds, and the continuous labor of two prior years, nor could the change of name from Allen Oliver, John Oliver and J. D. Lyons, to " The Table Mountain Tunnel Company," produce this singular effect.
The incorporation had taken place some seven years before suit was brought, and had the slightest necessity existed for a paper title, the Court, in analogy to the barring of suits by limitation, would have presumed a grant or license from the original proprietors to the corporation. (Angel on Water Courses, sec. 203; Angell & Ames on Corp., sec. 252; Smith v. Main B. T. Co. , 18 Cal. 111.)
On the other hand, if our possession were adverse to the proprietors, it had been continued seven years, and of course all recovery against us intheir favor was barred by limitation.
If the two Stanfields and Darling (formerly belonging to the Experimental Company) still retained their shares, and had not relinquished them to the corporation, then they held as tenants in common with the corporation, and the possession of one tenant in common is the possession of all. (Waring v. Crow , 11 Cal. 366; Pico v. Columbet , 12 Cal. 414.)
Viewing the case in this light, then, and that the Stanfields and Darling still retained their interest as individuals, the only possible defect in the proceedings would be, that in suing without them, there was a nonjoinder of parties plaintiff not apparent on the record, which must be taken advantage of by answer, or it is deemed waived. (Practice Act, secs. 44-5.)
It is, we believe, the first time in legal proceedings that the claims of a party in possession of a piece of ground, evidently at any rate with the express assent of one-half the original proprietors, has been postponed to that of a mere stranger, an intruder, who does not in any manner connect himself with the ownership or title of any one of the original proprietors.
By referring to dates, the Court will observe, in connection with the charges given by the Court, the unjust effect of this most extraordinary ruling.
In 1853 the Experimental Company marked out its boundaries. In 1854 plaintiffs entered as a corporation, stating in their act of incorporation and notice that their sole object was to work the tunnel and claim of the old Experimental Company. In 1855 defendants marked out the bounds of their claim. Plaintiffs did not again mark the bounds of their claim till 1857.
Now, as the Court struck out all evidence of any act of possession by any of the parties through whom we claimed prior to the date of our incorporation, (May 2d, 1854) of course all evidence of labor, and all marking of boundaries, antecedent to 1854, was stricken out. Our only actual marking of bounds prior to 1854 was in 1853, and of course this was stricken out, leaving us without any boundaries. Our next survey after entering as a corporation was in 1857. Defendants proved a marking of bounds on their part in 1855. And as we had had our evidence of boundaries in 1853 stricken out, and had not re-marked them till 1857, of course, under the ruling of the Court, our very boundary lines dated only from 1857, andthus defendants' marking of boundaries in 1855 was made superior to ours in 1853.
On the same principle, if A, B and C owned a field inclosed by a fence, and formed themselves afterwards into a corporation, before they could derive any advantage from the fence as a boundary, they would have to tear it down, and build a new one, so as to make it the act of the corporation.
How the Court would have decided in case of a mine or hole in the ground, it is difficult to say.
And yet the fence in the one case and the sides of the hole in the other, would only be evidence of acts constituting an intention to possess. (Ellicott v. Pearl, 10 Peters, 412.)
The Court evidently proceeded on the ground that no acts done by prior parties could be invoked by the corporation without showing an actual transfer, even as against an intruder; forgetting that ejectment is a possessory action, and that he who enters into a mining claim, defined by metes and bounds, and posts notices indicative of his intention to work the same, becomes just as much possessed of the land within those boundaries, for mining purposes, as though it were surrounded with a fence. It is the usual and ordinarymode of becoming possessed of land for mining purposes, and as such, has a legal common law recognition. (English v. Johnson , 17 Cal. 107.)
The action of the Court in excluding plaintiffs' testimony was proper. Plaintiffs first proved that in 1852 the Oliver company took up a claim on Table Mountain; that afterwards the Experimental Tunnel Company took possession of the same claim. The extent of that claim was indefinite and uncertain, being defined by no metes and bounds. In 1854 plaintiffs became incorporated, and pretend to have taken possession of the same claim, which is also indefinite, as appears from their notice.
The plaintiffs show no transfer of possession nor conveyance to them from the Experimental Tunnel Company, or the Oliver company; and as there is no evidence of their having derived title through any prior owners, the Court decided correctly in striking out all the testimony which had previously been given relative to the acts, declarations and possession of the Experimental Tunnel Company prior to the incorporation of plaintiffs. In order that the acts and declarations of the prior owners relative to the groundin dispute should be evidence for plaintiffs, as to the extent of their possession, it is indispensable for them to show that they derived their title from such prior owners, which they failed to do. It was no error, then, for the Court to strike out the testimony. For the same reasons, we contend that it was no error for the Court to charge the jury not to take into consideration any evidence which had been given relative to the acts, declarations or possession of the Oliver company or Experimental Tunnel Company, in relation to the disputed ground, which took place prior to plaintiffs' incorporation.
H. P. Barber, for Appellants.
Caleb Dorsey, for Respondents.
A. P. Crittenden, also for Respondents.
The plaintiffs had no actual possession of anything but the tunnel. Had they any constructive possession? There is no way by which such possession could be acquired other than by their own acts in marking out the boundaries of their claim, in accordance with some mining regulation, or by holding some conveyance, lease or other instrument made by a party professing to have right, and defining the limits of the claim. (Hicks v. Bell , 3 Cal. 224; Attwood v. Fricot , 17 Id. 42; English v. Johnson, Id. 109.)
The mere incorporationof the plaintiffs, of course, created no right of property. It created a new being, distinct from the individuals who composed it, and capable of acquiring and holding property. When thus created, it could only acquire rights of property in the same mode as an individual. (Grant on Corporations, 1-4.)
Nor did any right of property, vested in any of the individual members, pass to or become vested in the company by its incorporation, or by its declaration of the purpose for which the corporation was created.
It is not proven that Allen Oliver, John Oliver and J. D. Lyons were the only persons working the claim at the time of the incorporation. But if this were so, it would not follow that the rights of those persons passed to the corporation without assignments, and by mere force of the certificate.
The notice posted by the corporation does not in any manner define the extent of the claim to which it refers; but on the contrary, distinctly repudiates the boundaries now claimed. It claimed the channel through Table Mountain, with all its dips and angles; and this channel, if there be one, as contended by plaintiffs, is many miles in length. Instead of apprising any oneof the boundaries of any claim, it asserted its indefiniteness.
It is true, it refers to the claim held and occupied by the Experimental Tunnel Company since its location in June 12th, 1852; but the claim of the Experimental Company in June, 1852, was that specified in its notice, which also was indefinite, and was not from that day held or occupied by that company at all--for notice is not occupation.
The plaintiffs are, on their own showing, claimants of 4,500 feet measured along the base of the mountain; that is, nine hundred feet to the man; their claim having been taken up in the absence of any mining law whatever, by six persons. Such a claim, I submit, they could not hold as against persons entering under the mining laws adopted in January, 1855--in other words, against the defendants in this case--but their claim would be reduced to eighteen hundred feet, being three hundred feet to the man, and being so reduced, would not extend to the defendants' claim.
I am not aware that this Court has ever decided that in the absence of mining laws, a person may mark out and hold any amount of mining ground, and that his claim cannot be reduced by the subsequent adoptionof mining laws. On the contrary, there are strong intimations the other way, and the case of English v. Johnson seems to be directly against it. The doctrine is unreasonable, and in conflict with the whole theory of our mining claims.
It is true, as sometimes said by the Court, mining laws cannot divest existing rights. But how can a right exist which has no foundation in law or custom--no other foundation, indeed, than the will of the person asserting it? I speak now of a right supposed to result, not from actual possession, for that is founded on law, but from a constructive possession, such as is contended for here. How, in the absence of rule or limit, furnished either by law or by mining regulations, which have the force of law, can there be any such thing as constructive possession?
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Norton, J. concurring.
OPINION
COPE, Judge
On petition for rehearing, Cope, J. delivered the opinion of the Court--Field, C. J. and Norton, J. concurring.
We are asked by the counsel for the respondent to modify certain portions of the opinion delivered by us in this case On looking at the mining rules of the Table Mountain District, we find that an error was committed in saying that claims previously located were excluded from their operation. The rules contain a provision to that effect, but they also provide that persons holding such claims shall have one week to establish their boundaries in the manner therein required. A construction of these provisions is unnecessary for the purposes of this appeal, and we refer to the matter to guard against misapprehension, to which the language of the opinion would probably lead.
The counsel objects to that portion of the opinion relating to the mode of determining the reasonableness of a claim in the absence of local regulations limiting the extent. He understands us to have said that in such case recourse must be had to general usage previously established, and argues that under this rule there would be no means of imposing a limitation upon persons whose claims were located anterior to the existence of customs of a general nature fixing the quantity. We think the opinion does not warrant the view taken of it, but it is proper to say that while a general custom, whether existing anterior to the location of the claim or not, may be given in evidence upon the question of extent, a mere local regulation stands upon a different footing. The former results from the general sense of the mining community as to what is just and reasonable in that respect, and in connection with the particular circumstances of the case may be safely relied on in arriving at a conclusion. The latter owes its origin to the will and discretion of a few individuals, and operating directly upon the location sought to be limited, would be an improper and unjust criterion of action; as in many cases its effect would be to deprive persons of property to which, prior to its adoption they had a valid legal right.
Rehearing denied.