Trevaskis v. Peard

Citations

• 111 Cal. 599
• 44 P. 246
• 1896 Cal. LEXIS 628

Syllabus

<p>Appeal—Review—Objection of Respondent.—Where the respondent has taken no appeal, his attack upon the findings and conclusions o£ law cannot he considered; and the only objections which can be reviewed are those urged by the appellant.</p> <p>Mining Claims — Forfeit ore —Annual Expenditure — Ejeo l’ment. — Where the owner of a mining claim is wrongfully ousted, and work' is done upon the claim by the parties in possession, until an action of ejectment is brought and successfully maintained by the owner, the defendants in such action cannot insist that the mining claim was -forfeited by reason of the failure of the owner, during the time of their hostile possession, to perform the annual expenditure upon the claim required by the Revised Statutes of the United States.</p> <p>Id.—Abandonment—Evidence—Pleading—Quieting Title.—Abandonment of a mining claim need not be specially pleaded, but may be given in evidence under a denial of title, and may he proved by the plaintiff in an action to quiet title to a mining claim, to rebut a title, set up by the defendant under an earlier location.</p> <p>Id. —Proof of Abandonment—Finding against Evidence.—Abandonment of a mining claim is proved by evidence that the claimant remove ’ from the claim to mine in another part of the country, where he re - mained for two years, and that he declared that he had abandoned tl. claim, and would never return there again to work, and by the test - mouy of the claimant himself that he had abandoned it, unless it shor.l- - he developed into a paying property; and a finding, in view of such evidence, that he had not abandoned the claim, is against evidence.</p> <p>Id.—Conditional Abandonment not Recognized.— The law does no. 'recognize a conditional abandonment, but an abandonment must be regarded as absolute, if existing at all.</p> <p>Id.—Time of Absolute Abandonment.—If the intention to abandon lias been formed and once acted upon, the abandonment is as absolute, if it exists for a moment,