Waring v. Crow

Citations

• 11 Cal. 366

Syllabus

<p>In an action of ejectment to recover an undivided interest in a mining claim, it is not necessary to make parties defendants in such action, who are in possession of such claim, holding other undivided interests, and who claim no right to the interest sued for.</p> <p>It is only necessary, in such a case, for the plaintiff to sue the party who interferes with his rights.</p> <p>Where the Court instructed the jury in such action, that “where an abandonment is sought to be established hv the act of the party, the intention alone governs ; and if such party leave a mining claim, with the intention not to return, his abandonment is as complete, if it exist for a minute or a second, as though it continued for years ; but if he left with the intention of returning, he might do so at any time within five years; provided, there was no rule, usage or custom of miners of such a notorious character as to raise a presumption of an intention to abandonHeld, that the question of abandonment was fairly left to the jury.</p> <p>The purchaser of a mining claim can only acquire, by such purchase, such right or title as his vendor had at the time of sale.</p> <p>Possession of one partner or tenant in common of a mining claim is the possession of ail.</p> <p>Where the tenant in common, or partner, goes away and remains absent from the premises, leaving his associates in possession, it creates no px-esumption of abandonment ; nor does his refusal to pay, or delay in paying the expenses of the business, or the assessments, create of itself a forfeitui'e.</p> <p>In order to the enforcement of the forfeiture of the interest in the claim, some appropriate action by suit must be taken to liquidate the demand, and sell the property, or there must be at least clear and unequivocal proof of abandonment.</p> <p>The nxei’e passive acquiescence of the other partners or tenants in common in a sale of the interest of the plaintiff by a party having no title, cannot confer any upon the vendee.</p>