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Rathbun v. Alexander

1 Cal. Unrep. 664 Court Cal. Decision date 1871-04-13 Docket No. 2398 English

Judges We concur: Rhodes, C. J.; Wallace, J.; Sprague, J.; Temple, J.

Delivered by CROCKETT, J.

Contents

Majority

p. 664
S. RATHBUN, Appellant, v. J. H. ALEXANDER et al., Respondents.
No. 2398;
April 13, 1871.

Headnote

Mining Ground — Eight of Occupant as Against Intruder. — One in actual possession of mining ground, although without title, may proceed against a mere intruder having no superior right of entry.
Ejectment. — In 'an Action for the Possession of Land, failure by the plaintiff to prove actual possession by him of all the land described in the complaint does not call for a nonsuit if he has proved possession of a part.
APPEAL from Eleventh Judicial District, Calaveras County.
W. L. Hoskins and W. L. Dudley for appellant; James T. Farley for respondents.

— If the plaintiff established the actual possession of any portion of the mining ground in controversy at the time of the defendants’ entry, the nonsuit was improperly granted. As against a mere intruder, having no better right of entry than himself, if the plaintiff had the actual possession, he is entitled to be protected in it; and this court has had occasion in several eases to consider what acts of dominion will constitute an actual possession of mining' ground: English v. Johnson, 17 Cal. 107 , 76 Am. Dec. 574 ; Hess v. Winder, 30 Cal. 349 . I think the plaintiff brought himself clearly within the rule established in these eases as to a portion, if not to the whole, of the ground in contest. The testimony certainly tended strongly to establish the actual possession of the plaintiff as to a portion, at least, of the demanded premises; and this made out a prima facie case against the defendants as to this portion, at least. The nonsuit was improperly granted.

Judgment reversed and cause remanded for a new trial.

We concur: Rhodes, C. J.; Wallace, J.; Sprague, J.; Temple, J.

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