having the better right is in constructive possession of all the land not occupied in fact by his adversary.29

296

§ 2247. Possession, extent of. A mere intruder is limited to his actual possession;297 but one entering land under a deed or title, has a possession coextensive with his deed or title, with some qualifications, and his possession is not always confined to his actual inclosure.298 So, where a party takes possession of part of a tract, under a deed of conveyance to the whole, with specific boundaries, and at the time of entry no one is holding adversely, such possession will extend to the whole tract described in the deed.299 This rule is not limited to small tracts of land such as are usually occupied and cultivated for farms;300 and it extends to unrecorded deeds, with respect to those at least who have actual knowledge of the terms of the deed, and the grantee's claim under it.301 But if the title includes no definite metes and bounds possession will not be deemed to extend beyond the actual possession proved.302 And a grantee entering into possession under a deed, thereby acquires no greater possession than his grantor had.303

$2248. Possession, insufficient. Where a party takes possession of land, and incloses it with a fence consisting of posts seven feet apart, and one board six inches wide nailed on to the posts and not sufficient to turn cattle, and the land is not cultivated, such possession is not sufficient to sustain an action of ejectment as against a party in possession of a part of the tract under a deed to the whole.304

206 Green v. Liter, 8 Cranch, 229; Hunt v. Wicliffe, 2 Pet. 201; Barr v. Gratz, 4 Wheat. 213.

297 Sunol v. Hepburn, 1 Cal. 254; Wilson v. Corbier, 13 id. 166; Watkins v. Holman, 16 Pet. 25; see Cal. Code C. P., §§ 321–327. 298 Castro v. Gill, 5 Cal. 40; Green v. Liter, 8 Cranch, 229; Barr v. Gratz, 4 Wheat. 213; Ellicott v. Pearl, 10 Pet. 412; affirming S. C., 1 McLean, 206; Prescott v. Nevers, 4 Mason, 326.

299 Rose v. Davis, 11 Cal. 133; Baldwin v. Simpson, 12 id. 560; Kile v. Tubbs, 23 id. 431; Hicks v. Coleman, 25 id. 122; 85 Am. Dec. 103; McKee v. Greene, 31 Cal. 418; Ayers v. Bensley, 32 id. 620. 300 Hicks v. Coleman, 25 Cal. 122; 85 Am. Dec. 103.

301 Roberts v. Unger, 30 Cal. 676.

302 Fraser v. Hunter, 5 Cranch C. C. 47.

303 Bird v. Dennison, 7 Cal. 297.

304 Baldwin v. Simpson, 12 Cal. 560; see, also, Hughes v. Hazard, 42 id. 149.

§ 2249. Possessory Act. A party relying on the Possessory Act of California must show compliance with its provisions, and can then maintain an action for the possession of lands occupied for cultivation or grazing, without showing an actual possession, or an actual inclosure of the whole claim.30

305

306

$2250. Mineral lands. The allegation of possession is too broad to defeat the rights of a person who has, in good faith, located upon public mineral land for the purpose of mining.3 In ejectment for mineral land, plaintiff averred possession of a large tract of land, including the mining ground in controversy, and that he occupied the land for agricultural and mining purposes, without stating that any use was made of the particular portion held by defendants. Defendants answered denying the possession of plaintiff and the ouster, and averred that the land was public land of the United States, valuable for mining, and that they entered for that purpose. Plaintiff could not recover without showing such an actual and meritorious possession and occupancy as rendered the interference of the defendants unjust and inequitable; he could not recover on the pleadings, because the character of his possession did not appear the complaint not averring that this particular portion of the land was ever used by plaintiff for any purpose whatever.307 Where, in a suit for a mining claim, plaintiff in his complaint states the particular facts constituting his title, and on that title seeks a recovery, and the answer denies such title, plaintiff must prove his title as averred, at least in substance, and he can not, against defendant's objection, recover on another and different title.3

308

One party may locate

'§ 2251. Mineral lands, location on. grounds for fluming purposes, and another party, at the same time, or a different time, may locate the same ground for mining purposes, and the two locations will not conflict.309

§ 2252. Mining claims, appropriation of. The usual mode of taking up mining claims is to put upon the claim a written notice that the party has located it, and this may be done

305 Coryell v. Cain, 16 Cal. 567.

306 Smith v. Doe, 15 Cal. 100.

307 Id.

308 Eagan v. Delaney, 16 Cal. 87.

309 O'Keiffe v. Cunningham, 9 Cal. 589.

personally, or by any one for him; and when done by an agent the title vests in him and the agent can not subsequently divest it.310 The acts of appropriation are regulated by mining rules and local custom, which, when not in conflict with the Constitution and laws of the state, must govern all decisions in an action for mining claims.311

constructive possession.

The entry

§ 2253. Mining claims on a part of a mining claim under a deed does not by the deed alone give possession of the entire claim, unless the deed contains definite and certain boundaries which can be traced out and made known from the deed alone.312 But when a person enters bona fide, under color of title, the possession of part, as against any one but the true owner, is the possession of the whole, as described in the deed or lease.313 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 whole.31 But the boundaries must be plainly indicated by marks or monuments.315 Fencing a mining claim would only serve to mark its boundaries; and any other means which will accomplish that object will equally answer the requirements of the law as to possession.316 And this rule is equally applicable to claims valuable only for the "tailings" deposited on them from other mines.317

314

§ 2254. Mining claims, extent of. In the absence of mining regulations, the fact that a party has located a claim bounded by another raises no implication that the last location corresponds in size or in the direction of its lines with the former.318 The quantity of ground a miner may locate for mining 310 Gore v. McBrayer, 18 Cal. 582.

311 Cal. Code C. P., § 48; see Hicks v. Bell, 3 Cal. 219; Packer v. Heaton, 9 id. 568; Waring v. Crow, 11 id. 366; English v. Johnson, 17 id. 108; 76 Am. Dec. 574; Gore v. McBrayer, 18 Cal. 582; Prosser v. Parks, id. 47; Colman v. Clements, 23 id. 245; St. John v. Kidd, 26 id. 263; Morton v. Solambo C. M. Co., id. 527; T. M. Tunnel Co. v. Stranahan, 31 id. 387.

312 Hess v. Winder, 30 Cal. 349.

313 Attwood v. Fricot, 17 Cal. 37.

314 English v. Johnson, 17 Cal. 107.

315 Hess v. Winder, 30 Cal. 349.

316 Rogers v. Cooney, 7 Nev. 213.

317 Id.

318 Live Yankee Co. v. Oregon Co., 7 Cal. 40.

purposes may be limited by the mining rules of the district.319 And a general custom, whether existing anterior to the location or not, may be given in evidence; but a local rule stands on a different footing, and can not be introduced to affect the value of a claim acquired previous to its establishment.320

§ 2255. Mining claims, how held. A mining claim on the public domain may be held either by actual occupancy and the exercise of control over it, by indicating its boundaries by monuments, or marks, or by occupancy in accordance with local mining customs.321 Where the location is made both by posting notices and by designating fixed objects on or near its exterior boundaries, witness may state whether the location made included the grounds in dispute.322 One seeking to hold a mining claim by virtue of prior possession alone, without reference to local mining customs, must mark out his boundaries by such distinct physical marks as will indicate to any one what his exterior boundaries are.323 But fences are not necessary.324

The whole course of

§ 2256. Mining claims, ownership of. legislation and judicial decisions, since the organization of the state, has recognized a qualified ownership of the mines in private individuals.325 As between themselves and all other persons, except the United States, miners in possession of claims are owners of the same, having a vested right of property founded on possession and appropriation.326

§ 2257. Mining claim, possession of. Mining ground acquired by entry under a claim for mining purposes, the bounds being distinctly defined, accompanied by actual occupancy of 9 part of the tract, is sufficient possession to maintain eject319 Prosser v. Parks, 18 Cal. 47.

320 T. M. Tunnel Co. v. Stranahan, 20 Cal. 198.

321 Hess v. Winder, 30 Cal. 349.

322 Kelly v. Taylor, 23 Cal. 11.

323 Hess v. Winder, 30 Cal. 349.

824 English v. Johnson, 17 Cal. 107; 76 Am. Dec. 574.

325 State of California v. Moore, 12 Cal. 56.

326 Hughes v. Devlin, 23 Cal. 501. A pleading not containing a general averment of ownership of a mining claim must aver all the facts necessary to constitute such ownership. An averment that the land was vacant public land, and that a notice of location was posted thereon, is not sufficient. Hall v. Arnott, 80 Cal. 348; see, also, McFeters v. Pierson, 15 Cel. 201; 22 Am. St. Rep. 388.

$29

ment for the entire claim, although the acts of appropriation were not according to the mining rule.327 So, also, the owner of an undivided interest is entitled to the possession of the whole mine, as against one who has no title to any portion.328 The rule applicable to agricultural lands does not apply." A miner is not expected to reside on his claim, or cultivate it, or inclose it, work done outside the claim, in reasonable proximity thereto, having direct relation to the working of the claim, being sufficient.330 As, for example, starting a tunnel a considerable distance off, to run into the claim,331 is sufficient possession. Mining claims are held by possession, regulated and defined by usage and local and conventional rules, and the "actual possession" which is applied to agricultural lands and understood to be a possessio pedis, can not be required in the case of a mining claim.332

§ 2258. Mining claim, sale of. In the early case of McCarran v. O'Connell, 7 Cal. 152, it was held that a bill of sale not under seal was insufficient to convey a mining claim; but it has been since held that instruments conveying mining claims need not be under seal.333 And where it is conveyed by bill of sale, the bill of sale is the best evidence of the transfer, parol evidence of the conveyance being inadmissible.334 And if the bill of sale be lost or destroyed, its loss or destruction must be proved, to lay the foundation for secondary evidence, as to its contents.835

§ 2259. Mining claims, verbal sale of. Where the grantor is in actual possession of a mining claim, he may convey the same by a verbal sale, accompanied by a transfer of the possession.336 This was held in California before the act of 1860,

327 Table M. T. Co. v. Stranahan, 20 Cal. 198.

328 Melton v. Lambard, 51 Cal. 258.

329 English v. Johnson, 17 Cal. 107; 76 Am. Dec. 574.

330 McGarrity v. Byington, 12 Cal. 426.

331 English v. Johnson, 17 Cal. 107; 76 Am. Dec. 574.

332 Attwood. v. Fricot, 17 Cal. 37; 76 Am. Dec. 567.

333 Draper v. Douglas, 23 Cal. 347; St. John v. Kidd, 26 id. 263. 334 Crary v. Campbell, 24 Cal. 634.

335 King v. Randlett, 33 Cal. 318.

336 Gatewood v. McLaughlin, 23 Cal. 178; Antoine Co. v. Ridge Co., id. 219; Copper Hill Min. Co. v. Spencer (No. 2), 25 id. 18; Patterson v. Keystone Min. Co., 23 id. 575.