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but since the act of 1860, d. 175, all sales of mining claims must be in writing 337

§ 2260. Mining regulations. The mining regulations of a district are devised for the purpose of enabling persons who locate claims to hold them by constructive possession, and they are not to be construed as authorizing a person to invade the actual possession of another, on the pretext that the latter has neglected to perform the requisite amount of work, or has failed in some other respect to comply with such regulations; and the language, “open and subject to appropriation under the local usages of the district," does not necessarily imply that a mining claim in the actual possession of a person may be relocated by another person on his failure to perform the acts required by the mining regulations of the district. 338

$ 2261. The same alleging prior possession.

Form No. 552.
[TITLE]
The plaintiff complains, and alleges:
I. That on the ....... day of ..

18.., he was lawfully possessed, as owner in fee-simple, of that certain tract of land, situate in the county of

state of .., described as follows [describe property]. II. That the plaintiff being so possessed, the defendant afterwards, on the ........ day of .....

18.., entered into the possession of the demanded premises, and ousted the plaintiff, and now unlawfully withholds the possession thereof from the plaintiff, to his damage in the sum of ....

dollars. III. That the value of the rents, issues, and profits of the said premises, from the said

day of 18.., and while the plaintiff has been excluded therefrom by the defendant, is

.. dollars.

[DEMAND OF JUDGMENT. 339 337 See Patterson v. Keystone Min. Co., 30 Cal. 360, where the question of the sufficiency of a verbal sale under the act is discussed. In Goller v. Fett, 30 Cal. 481, it was held that a verbal sale, even if accompanied by delivery of possession, does not pass the legal title. See, also, Cal. Civil Code, $ 1091; Melton v. Lambard, 51 Cal. 258.

338 Bradley v. Lee, 38 Cal. 367.

339 As to form in ejectment, see Payne v. Treadwell, 16 Cal. 220. Other authorities in support: Walter v. Lockwood, 23 Barb. 228; S. C., 4 Abb. Pr. 307; People v. Mayor of New York, 28 Barb. 240;

Vol. II -11

§ 2262. Actual possession. The plaintiff who claims to recover on the ground of prior possession alone, without color of title, must show an actual prior possession; and if he shows that he had the land protected by a substantial inclosure, even if he had not improved or lived on it, this constitutes an actual possession.340 Where a plaintiff seeks to recover upon prior possession, and does not show a complaince with the statute concerning possessory actions in this state, he can only recover upon proof of actual bona fide occupation.341

§ 2263. Entry upon lands. One who enters upon a tract of land where there is no adverse possession, a portion of which is uninclosed, claiming the whole under a deed describing the entire tract, will prevail in an action against one who enters subsequently upon the uninclosed part, showing color of title merely. 342

$ 2264. Presumption of title. Where two parties rely upon possession solely, as proof of title, the presumption of ownership is in favor of the first possessor.343 And where title to land rests in possession only, the prior possessor has the better

title.314

$ 2265. Prior possession. Prior possession will prevail in ejectment over a subsequent one, obtained by mere entry, without any lawful right.345 A locator on public land, who shows that he first entered upon it, marked out the boundaries, and diligently proceeded to, or diligently made preparation to do such acts as were necessary to constitute an actual possession, will be entitled, even without showing an actual possession, to recover against a person subsequently entering 346 Where the plaintiff has documentary title, aided and accompanied by possession, and the defendant is a mere trespasser, the plaintiff is

S. O., 8 Abb. Pr. 7; Ensign v. Sherman, 14 How. Pr. 439; Caperton v. Schmidt, 26 Cal. 479; 85 Am. Dec. 187; and see § 2236, ante.

340 Polack v. McGrath, 32 Cal. 15.
341 Murphy v. Wallingford, 6 Cal. 648.
342 Hicks v. Coleman, 25 Cal. 122; 85 Am. Dec. 103.
343 Potter v. Knowles, 5 Cal. 87.
344 Ayres v. Bensley, 32 Cal. 620.
345 Buckner v. Chambliss, 30 Ga. 652.
346 Staininger v. Andrews, 4 Nev. 59.

is title. 353

entitled to recover on prior peaceable possession alone. 347 Possession is prima facie evidence of title. 348 $ 2266. Prior claim to water.

Possession or actual appropriation is the test of priority in all claims to the use of water, where such claims are dependent upon the ownership of the land through which the water flows.349

$ 2267. Prior possession of grantor. If one who has not been in the actual possession of land claims title on the ground of prior possession, he must not only show the conveyances of his grantors, but must show that they were in actual possession and occupation of the land. 350

$ 2268. Title by prior possession. Actions of ejectment do not affect the title to the property, but the possession.361 It is confined to cases where the claimant has a possessory title, or a right to entry upon the lands.362 The right to possession, as between the parties, is tried, and this right to the possession

An action can be maintained upon any title, legal or equitable, or upon an instrument, sealed or unsealed, which entitles plaintiff to the possession of the property in dispute, as against the defendant; but this refers to proceedings in equity.3 In ejectment, plaintiffs may rely on prior possession, and the legal title is not necessarily involved.355 It is sufficient evidence of title to support the action.356 Title, therefore, by prior possession may be alleged, but he must, in connection therewith, allege an entry and ouster,37 and a continued adverse holding by the defendant.358

347 Grady v. Early, 18 Cal. 108; see, also, Donahue v. Gallavan, 43 id. 573.

348 Hutchinson v. Perley, 4 Cal. 33; 60 Am. Dec. 578; Hicks V. Davis, 4 Cal. 67; Winans v. Christy, id. 70; 60 Am. Dec. 597; Bequette v. Califield, 4 Cal. 278; 60 Am. Dec. 615.

349 Kimball v. Gearhart, 12 Cal. 27. 350 Borel v. Rollins, 30 Cal, 408; Lawrence v. Fulton, 19 id. 683.

351 Long v. Neville, 29 Cal. 131; but see Marshall v. Shafter, 32 id. 194.

352 Payne v. Treadwell, 5 Cal. 310.
353 Marshall v. Shafter, 32 Cal. 194.
354 Ortman v. Dixon, 13 Cal. 33.
355 Grady v. Early, 18 Cal. 108.
356 Nagle v. Macy, 9 Cal. 426.

357 Norris v. Russel, 5 Cal. 249; Boles v. Cohen, 15 id. 150; Payne v. Treadwell, 16 id. 220.

358 Boles v. Cohen, 15 Cal. 150; Garrison v. Sampson, id. 93; Steinback v. Fitzpatrick, 12 id. 295; see Riverside Co. v. Townsend, 120 Ill. 20; Mickey v. Stratton, 5 Sawyer, 478; Oreg., etc., Nav. Co. v. Hertzberg, 26 Oreg. 216.

354

§ 2269. Title by limitation. Adverse possession for five years gives a title to the land.359 But possession for five years, unless it is either admitted or found as a fact to be adverse, will not presume a title.360 In Illinois, a person in actual possession under claim or color of title in good faith for seven years, and during all that time paying all taxes, shall be adjudged the legal owner.361 When parties enter without title or claim, or color of title, such occupation is subservient to the paramount title, as title must be somewhere.362 In Delaware, an action of ejectment can not be maintained against a mere trespasser on the ground of possession alone, unless the possession has continued twenty years.363

§ 2270. By the tenant.

Form No. 553.

[TITLE] The plaintiff complains, and alleges:

I. That one A. B. is the owner in fee simple of a piece of land in the township of ...

.., county of bounded as follows [describe the land]. II. That on the ........ day of

18.., the said A. B. let the said premises to plaintiff, for

years from

III. That the defendant withholds the possession thereof from the plaintiff.

[DEMAND OF JUDGMENT.]

359 Leroy v. Rogers, 30 Cal. 229; 89 Am. Dec. 88; Simpson V. Eckstein, 22 Cal. 580.

360 Sharp v. Daugney, 33 Cal. 505; Stillman v. White Rock Mfg. Co., 3 Woodb. & M. 538.

361 Russel v. Barney, 6 McLean, 577; compare Wright v. Mattison, 18 How. (U. S.) 50.

362 Sharp v. Daugney, 33 Cal. 505; Harvey v. Tyler, 2 Wall. (U. S.) 328. As to the rule in Connecticut, see Stillman v. White Rock Mfg. Co., 3 Woodb. & M. 538; rule in Montana, see Peter v. Stephens, 11 Mont. 115; 28 Am. St. Rep. 448.

363 Jefferson v. Howell, 1 Houst. 178. For the statutes of limitation of the various states, see Adams on Eject. 43 et seq. And in California, see Code C. P., 88 315-328.

$ 2271. Action will not lie. In an action of ejectment, if the plaintiff count upon a lease to himself from a person whom the evidence shows to have been dead at the time, it is bad.364

$ 2272. Expired lease. Where the lease under which ejectment is brought has expired before trial, no recovery can be had without amendment 366 Where land was conveyed in fee, reserving a rent charge with a right of re-entry, for nonpayment, and the grantor died leaving six heirs, it was held that one of said heirs could maintain ejectment for one-sixth of said lands for nonpayment of rent, without joining the others.3

366

{ 2273. Personal representatives.

The personal representatives of a lessee for years or his assignee, have an estate in the land, and are entitled to its possession, and may maintain ejectment.387 A plaintiff in ejectment can not recover when one lessor under whom he claims has conveyed his legal and equitable title to the other, and the right of that other lessor is barred by a former recovery.368

$ 2274. Possession by tenant. A party entering under a lease with bounds, or under a deed, gains a possession only to the extent of the boundaries of the lease or deed. Where the tenant is settled on a patent with intent to gain possession, without limits or bounds, it was held that the landlord's possession thereby obtained extended to the line of the patent.3 But an alienee entering upon lands with bounds gains a possession only to the extent of his bounds. 370 If the landlord himself enters and is ousted by an intruder, he may recover to the boundaries of his deed, while the tenant, if ousted, recover only to the boundaries of his lease. 371

369

can

384 Connor v. Brady, 1 How. 211.
365 Roe v. Doe, 30 Ga. 608.
366 Cruger v. McClaughry, 51 Barb. 642.

367 Williams on Ex. 748; Roscoe on Actions, 545; Doe v. Bradbury, 16 Eng. Com. L. 115; Mosher v. Yost, 33 Barb. 277.

368 Dearmond v. Roe, 30 Ga. 632.

369 Lee v. McDaniel, 1 A. K. Marsh, 234; Owings v. Gibson, 2 id. 515.

370 Maury v. Waugh, 1 A. K. Marsh. 452; Owings v. Gibson, 2 id. 515; Jones v. Chiles, 2 Dana, 25; Wickliffe v. Epsor, 9 B. Mon.

871 Walsh v. Hill, 38 Cal. 481.

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