ATTWOOD & WALKER v. FRICOT et als., 17 Cal. 37

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. We do not think it necessary to go into a full examination of this case, for on another trial all the questions here made probably will not arise. 1. The first error assigned is the ruling of the Court excluding ihe entry of the transfer made on the books of the Recorder, as proof of the fact of transfer. We think the ruling right.

The fbooik was admissible as evidence of a compliance with the rules of 4he mining district, and this particular entry admissible to show the compliance with the miners’ rule requiring the recording of transfers. But we see no mining regulation which makes this memorandum -of the Recorder primary evidence of the fact of transfer; and know of no principle of the law of evidence which would authorize such effect to be given to it. 2. The Court did not err in overruling the objections to the depositions of Hawes, etc.

The objection assigned was a matter to be considered by the Court, and its discretion seems to have been properly exercised. Reasonable notice should be given to a party of the time and place of taking testimony; but what is reasonable notice, depends upon the particular circumstances. 3. We are inclined to think that some of the instructions given at the instance of the defendant, whether correct or not as abstract propositions applicable to real estate, had a tendency to mislead the jury when applied to the facts of the record.

Mining claims are held by possession, but that possession is regulated and defined by usage and local, conventional rules, and the “ actual possession ” which is applied to agricultural lands, and which is understood to be a possessio pedis, can scarcely be required in a mining claim in order to give a right of action for the invasion of it. The claim must be in some way defined as to limits, of course, before the possession of or working upon part gives possession to any more than that part so possessed or worked.

But when the claim is defined, and the party enters in pursuance of mining rules and customs, the possession of

part is the possession of the entire claim. And so if a party enters bona fide under color of a title, as under a deed or lease, the possession of a part as against any one but the true owner or pi’ior occupant is the possession of the entire claim described by the paper; and this though the paper did not convey the title. The condition of the possessor, in such instances, would not be worse than that of the occupant of other real estate, in which case this rule applies.

A third person would have no right to invade the possession of the party taking it under such circumstances, and set up, as against him, outstanding title in a stranger, with which he had no connection. This principle does not touch the case of an entry into possession in pursuance of mining rules and regulations, as for a forfeiture or abandonment, etc.; but the case we suppose is of a possession taken independently of such rules. These observations will enable the Court below to apply the law to the facts in a concrete form on the return of the case.

The Court erred in instructing the jury, that if they believed no injury or damage was done by defendants to plaintiffs, they would find for the defendants. This instruction was calculated to mislead. The law presumes damages from a trespass; and the jury might well have decided the case upon this want of proof of plaintiffs’ damages, instead of absence of proof of their title. The error being apparent, injury is presumed; and the respondents have not affirmatively replied to the presumption. Judgment reversed and cause remanded for a new trial.