Maye v. Tappan

Citations

• 23 Cal. 306

Syllabus

<p>Week two mining claims adjoin each other, and the owners of one claim work across the dividing line and take away gold-bearing.earth from the other claim, the fact that they did so in ignorance of the location of the dividing line, is no excuse or justification, and it is error to admit evidence of such ignorance as an excuse for the trespass or in mitigation of damages.</p> <p>In an action of trespass to recover damages for injury to a mining claim, the right of the pláfetiffs to recover the damages which they have actually sustained, is not affected by the fact that the trespass was not willful in its character.</p> <p>The fact that plaintiff tells defendant that he did not know where the line ran, but that defendant need not be uneasy, for he was not near the lino, and had fifty feet still to run before he could reach it, does not amount to a license or permission from plaintiff for defendant to work on plaintiff's ground; nor does it estop plaintiff from recovering the damage he has actually sustained.</p> <p>When a party has the means of ascertaining a boundary line, he is guilty of neg-' ligence in not ascertaining its location.</p> <p>Where a trespass is committed by entering upon and taking away the gold-bearing earth from a mining claim, and the same is not done willfully or with a malicious intent, and the action is brought for an injury to the land itself, the true measure of damages is the value of the gold-bearing earth at the time it is separated from the surrounding soil, and becomes a chattel.</p> <p>In estimatiug the damages, the expense of separating the earth from the gold'after it is moved to the place of washing, is to be deducted from the value of the gold.</p> <p>If, however, a demand is made for the possession of the gold after it is separated from the earth, and an action is then brought for the conversion of the chattel, the measure of damages would be the value of the gold detained.</p>