T. G. CONTRERAS, Respondent, v. EMELIE D. MERCK et al., Appellants, 131 Cal. 211

CHIPMAN, C. Action to recover possession of a mining claim, for damages, and for an injunction. Plaintiff had judgment for possession, for one dollar damages and perpetually enjoining defendants from trespassing upon the premises in controversy. The appeal is from the judgment on the judgment-roll. 1. Appellants contend that their demurrer for uncertainty, ambiguity, and unintelligibility should have been sustained. • The complaint alleged ownership and right of possession of plaintiff in and to a certain mining claim known as the St.

Gabriel Mine, and alleged that defendants unlawfully “entered upon and took possession of a portion of said mining claim and premises, and ousted plaintiff from said portion, . . . ; and are now engaged in wrongfully digging, mining and extracting gold-bearing quartz, gold specimens and gold from said mining claims and converting the same to their own use”; the complaint further alleges that “plaintiff, being uninformed as to the exact value of said gold-bearing quartz .... so wrongfully and unlawfully dug, mined, .... converted by defendants, alleges, on said lack of information and on bis belief, that the value thereof is one thousand dollars.” Appellants claim uncertainty: 1.

That the complaint alleges unlawful possession by defendants of only a portion of the mine and does not describe such portion; 2.- The allegations of damage are on information and belief; and 3. There is no direct allegation that “any holes or cuts have been made and done” by defendants. The answer claimed ownership and right -of possession of the entire premises to be in defendant Merck, and the answer admitted having taken possession, and by the form of denial as to the alleged extracting of ores therefrom admitted having done so, and by the same form of denial admitted an intention to continue extracting ores.

In short, the answer put in issue the question of ownership or right of possession of the entire premises and the resulting right of defendants to occupy the premises and do with them as they liked. The cause was tried on the issues presented by the complaint and answer, and we cannot see that appellants could have been misled or injured by the form of the complaint. In speaking of the rule where the demurrer is for uncertainty, the court, in Alexander v. Central etc.

Co., 104 Cal. 532, said: “It must not be mere abstract error, but it must be prejudicial and injurious error in order to avail appellant, for otherwise he has no cause of complaint.” (See, also, Jager v. California Bridge Co., 104 Cal. 542.) 2. It is contended that the findings are not within the issues. The claim seems to be that the- court finds forfeiture as a fact on the part of defendant Merck, whereas there is neither allegation. of abandonment or allegation of forfeiture on her

part in the complaint. The finding is “that on the nineteenth day of February, 1898, the defendant Emelie D.

Merck claimed to hold the tract of land described .... under the location laws of the United States relative to quartz claims, .... but the said location had lapsed and become void, and said tract of land was at that time vacant public mineral land.” The court then finds that plaintiff was on February 19, 1898, a qualified mineral locator and located the premises in question on that day, and thereby became the owner and entitled to possession thereof, and was such owner when subsequently defendants entered upon said premises and ousted plaintiff therefrom.

The principal fact at issue was the ownership of the mine; it was not necessary for plaintiff to allege forfeiture or abandonment by defendant Merck. The complaint contained sufficient allegations in an action in ejectment, which defendants concede this to be. As was said in Harris v. Kellogg, 117 Cal. 488: “A mining claim is real estate, and the rules of pleading relative to real estate are applicable to it. In the ordinary action of ejectment it is sufficient for the plaintiff to allege that he was the owner of the land in question.

Such an averment carries with it all the facts essential to establish his ownership, and the means by which he became the owner would be only evidence of his ownership and should not be alleged.” The same rule would apply to the defendants in setting up ownership in their answer. In the present case, defendants averred ownership in defendant Merck, and the answer is deemed to be denied.

It was competent for plaintiff to show that the location under which defendant Merck claimed ownership “had lapsed and become void,” and that when plaintiff initiated his claim the land was “vacant public mineral land of the United States.” What the evidence was from which the court made its finding we do not know, and we must, on this appeal, presume that it was sufficient. Appellant contends that the finding that the defendant’s claim had “lapsed” was equivalent to a finding that it was “forfeited,” and this it is contended could not be proved under the general issue but must be specially pleaded..

Precisely what the court m'eant by the term “lapsed” may not be easily conjectured, as it is a term unknown to mining usage or laws; but we have no right to assume that it meant a technical forfeiture. The judgment may rest on the finding that “the land was vacant public mineral land,” and the finding that the claim had “lapsed” may be rejected altogether. We advise that the judgment be affirmed. Gray, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. Henshaw, J., McFarland, J., Temple, J.