Me. Boys' Tunnel Co. v. Bos. Tunnel Co.

Citations

• 37 Cal. 40

Syllabus

<p>New Trial—Conflict of Evidence.—This Court, on review of the proper motion made in the Court below and there denied, will order a new trial where the evidence given at the former trial was, without substantial conflict, opposed to the verdict.</p> <p>Instruction—Estoppel.—On the trial of an action for the alleged trespass of defendants on the plaintiffs mining claim, in which the title to the locus in quo constituted the main issue, the Court gave the following instruction to the jury, viz : If the jury believe from the evidence that plaintiffs, * * * more than five years prior to the commencement of this suit, in good faith, and under a claim of right, entered into the possession of said disputed ground, and have continued in possession thereof, and expended labor thereon, (with the knowledge of defendants * * * they making no objections thereto,) and that defendants have not forbidden plaintiff’s possession so acquired, then the plaintiff is entitled to a verdict.” Held, that this instruction, as an abstract proposition, fails to state the essential elements of an estoppel in pais, and was improperly given.</p> <p>Idem—Possession of Mining Claim.—In such case, where it appeared that the boundary line between the plaintiff’s and defendant’s mining claims had been in dispute for several years—the locus in quo being embraced between the adverse . lines claimed by the parties respectively—the Court refused the defendant’s request to give to the jury the following instruction, to wit: “ Where two mining companies take up adjoining claims, and the one last taken up overlaps the other, and neither company is working that portion of the claim which overlaps the other, but are working in different portions of their respective claims, the fact that the locators of the last claim located hav.o been in possession of their claim for five years, does not divest the owners of the first claim of the right to their claim to tho extent of the original boundaries, and such a poss