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Wheeler v. Manlove

2 Cal. Dist. Ct. 165 Court Sixth District Court for Sacramento Co., English

Delivered by Botts, J.

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p. 165
WHEELER vs. MANLOVE.
Sixth District Court for Sacramento Co.,
April T., 1858.

Headnote

REPLEVIN — MINING CLAIM.
A complaint in replevin, which alleges that defendant took and retains an undivided interest in a mining claim, held insufficient upon demurrer.
A mining claim, being an incorporeal hereditament, is not the subject of seizure or replevin.
On demurrer to a complaint in an action of replevin. The necessary facts are stated in the opinion.
The names of counsel have not been furnished.

— The plaintiff alleges that the defendant wrongfully took and detains from him certain household and kitchen furniture, mining tools, a building and an undivided interest in a mining claim; all of which, he alleges, are worth twenty-five hundred dollars; he prays judgment for a return of the property, or its alternative value, with damages for the detention. The defendant demurs, upon the grounds of the improper union of several demands, and because the complaint does not state facts sufficient to constitute a cause of action.

Upon the latter ground, it seems to me, the demurrer must be sustained. The plaintiff alleges an impossibility, viz : that the defendant took and detains an undivided interest in a mining claim. A mining claim is an incorporeal hereditament that is incapable of seizure and detention; and it certainly could not be made the foundation of an action of replevin. This allegation might therefore, be treated as surplusage, and the plaintiff might recover for the personal property capable of seizure and detention; but of the value of

p. 166
this property, separately, there is no allegation, and there is, there fore, nothing to show that the plaintiff is entitled to redress in this form.

The demurrer is sustained.

I will take the liberty of reprehending the practice of submitting questions of this character to the court without argument, or brief, or authority. It is to cast the labor properly devolving on counsel, upon the shoulders of the judge. It is neither just to the client nor to the court.