PATTERSON v. KEYSTONE MINING COMPANY, 23 Cal. 575

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action to recover the possession of the undivided one-twentieth of a mining claim. The plaintiff claimed title under a deed executed by one Callahan, one of the original locators of the claim, dated June 3d, 1861. The defendants claim title under Callahan, by virtue of an alleged sale by parol and delivery of possession, prior to the date of the plaintiff’s deed.

The Court-instructed the jury “ That the possession of the defendants under an unrecorded deed or bill of sale from Callahan, in order to constitute notice of this claim to the plaintiff so as to invalidate or defeat his title, must have been a possessio pedis, actual Iona fide possession, consistent with defendants’ title, and that this possession must be evidenced by an actual inclosure or something equivalent, as showing the extent and the fact of the defendants’ dominion and control of the premises.” The appellants assign this instruction as error.

The rule of law defining what will constitute possession of a mining claim was fully and clearly laid down by this Court in the cases of Atwood v. Fricot (17 Cal. 37) and English v. Johnson (Id. 107). The instruction given in this case, clearly conflicts with the rule laid down in those cases. The validity of parol sales of mining claims has been fully established by this Court in the cases of: (Jackson v. The Feather River Co., 14 Cal. 22; Table Mountain Tunnel Co. v. Stranahan, 20 Id. 198; Gatewood v. McLaughlin, 23 Id. 178). The judgment is therefore reversed, and the cause remanded for a new trial.