Reference

Full Case Name

ATTWOOD & WALKER v. FRICOTs.

Cited By

12 cases

Status

Published

Syllabus

Plaintiffs having offered in evidence the book, where mining claims are recorded according to mining rules, to show title in the original locators, then offered the entry in that book of the transfer of said claims from such locators to the lessor of plaintiffs as proof of the fact of transfer. The Court below excluded this entry until proof aliunde of the transfer: Held, that this entry was inadmissible as proof of such transfer—there appearing no mining regulation which makes the entry by the Recorder primary evidence of the fact of transfer. Such book was admissible to show compliance with the rules of the mining district, and this particular entry admissible to show compliance with the miners’ rule requiring transfers to be recorded. It being objected by plaintiff to a deposition—First. That the copy of the order of the Judge fixing the time for taking it did not mention the notice to be given the adverse party; Second, That no correct copy of said order was served; Third, That no sufficient notice to take the deposition was ever given, the objection was overruled, “ because the original order of the Jndge, made on affidavit, fixed the time of notice at three days, and because plaint'ffs’ counsel acknowledged service in writing of a copy thereof March 8th, 1859, more than three days before the taking of the deposition: ” Held, that there was no error; that the objection assigned was matter for the Court, and its discretion was properly exercised; that reasonable notice should be given of the time and place of taking testimony, but what is reasonable notice depends on the particular circumstances. Mining claims are held by possession, but that possession is regulated and defined by usage and local and conventional rules; and the “ actual possession ” which is applied to agricultural land, and which is understood to be a possessio pedis cannot be required in case of a mining claim, in order to give a right of action for the invasion of it. A mining claim must be in some way defined as to limits, before the possession of or working upon part gives possession to any more than the part so possessed or worked. But when the claim is defined, and the party enters in pursuance of mining rules and customs, the possession of part is the possession of the entire claim. So, if a part)' enters upon a mining claim bona fide, under color of title, as under a deed or lease, the possession of part as against any one but the true owner or prior occupant is the possession of the entire claim described by the paper; and this, though the paper did not convey the title. A third person could not invade the possession of the party taking it under such circumstances, and set up, as against him, outstanding title in a stranger with which he had no connection. The condition of the possessor in such instances is no worse than that of the occupant of other real estate, in which case the principle above stated applies. But this principle does not touch the case of an entry into possession in pursuance of mining rules and regulations, as for a forfeiture or abandonment, etc., but applies where possession is taken independently of such rules. In suit for damages for an entry upon mining claims, and for perpetual injunction, etc.: Held, that it was error for the Court below to charge the jury that if they believed no injury or damage was done by defendants to plaintiffs, they would find for defendants; that such charge was calculated to mislead, inasmuch as the law presumes damages from a trespass, and under the charge, the jury might have decided the case upon this want of proof of plaintiffs’ damages, instead of absence of proof of their title. In such case the error being apparent, injury from the charge to the jury is presumed, unless respondent affirmatively repels the presumption.