Year: 1859

Below is decision, in case take up from
this county, of general interest. In the Courier
of the 29th May last, we published the instruc-
tions given to the jury by Judge Daingerield,
which in some particulars were new, and settle
most important principle as to the force and
effect of mining laws. The defendants excepted
to the rulings of the Court in toto. As will be
seen, the Supreme Court sustains the opinion OF
Judge Daingerfield in every particular:


Waring vs. Cro,c-Ejectment for the recovery
Of mining claim.


The plaintiff in this suit sues for the recovery
of certain interest in mining claims in Shasta,
the title to which he asserts to have been in him
self and several others, in certain fixed proper
tions.


1t is objected that the plaintiff cannot recover
because he has not joined the other owners or
claimants. We do not consider this point well
taken. In order to a full vndication of plain
tiff S rights, and full investigation of the merits
of the controversy, it was only necessary to sue
the party who nterfered with the plaintiffs pro-
perty, or did him wrong. The object OF the
plaintiff in the suit was not a partition OF the
common property, but to settle the right of the
plaintiff, as against an adverse claimant, to his
share and proportion; and this object could be
etfectually attained by the plaintiff in the form
adopted. Tue question of abandonment was
fairly left to the jury, as also the right of the
defendant under the bill of sale from Julian
The claims, it seems, were held in possession by
the partners and associates of the plaintiff they,
as such partners, were tenants in common, and
it is well settled that the possession OF one part
ner or tenant in common is the possession OF ALL
The mere fact that one tenant in common, or
partner, goes away and remains absent from the
premises of the joint business or property, leav-
ing his associates in possession, creates no pre-
sumption of abandonment, nor does his refusal
to pay, or delay in paying the expenses of the
business, or the assessments, create OF Itself
forfeiture. In order to the enforcement of the
claim some appropriate action by suit must be
taken to liquidate the demand, and sell the pro-
perty, or there must be at least clear and une-
quivocal proof Of abandonment


tbs too clear for argument that the mere pas
sve acquiescence of the other partners or ten
ants in common In a sale of the interest of the
plaintiff by party having no title, cannot con-
fer any upon the vendee This would be 10 make
title to property pass, not by the act assent of
the owner, but by the silence of his associates.


The plaintiff S right having beer fixed by these
rules of property, which are part of the general
law of the land could not be divested by any
mere neighborhood custom or regulation, even
if there were better proof than appears in the
record of the existence of such. Nor do we see
anything to prove that by the mining regulations
Of the vicinity the possession and working of
the claim by portion was not sufficient pos
session and working for all; or that the mere
temporary abSense of one partner was forfeit
ure of his interest, and that stranger could
then come in and appropriate his share.


On the whole, we think the learned Judge be-
low presented the law fairly and clearly to the
jury, and that their finding was in accordance
with law and justice.


Judgment affirmed. BALDWIN j.


concur: TERRY, c. J.