V. G. BELL, CHARLES SCHARDIN, and EGBERT JUDSON v. THE BED ROCK TUNNEL AND MINING COMPANY, 36 Cal. 214

By the Court, Sanderson, J. : This is an action to recover the possession of certain mining ground called the Monte Christo Claims. The defenses, so far as they illustrate the grounds of the appeal, are: First— A denial of the plaintiffs’ title; and Second—Forfeiture of their title under the mining rules and regulations of the district in which the Monte Christo Claims are situated. In the Court below judgment passed for the defendant. The plaintiffs moved for a new trial, which was denied, and then appealed. Two points are made by appellant.

First—Error of the Court in excluding certain testimony offered by the plaintiffs; and Second—In giving an instruction in relation to the question of forfeiture. 1. During the trial the defendant introduced testimony tending to show that in the Fall of 1865 the plaintiffs, or their grantors, who had been theretofore working the Monte Christo Claims, ceased working the same, and removed their sluices, quicksilver, and tools, and had not since worked upon or used the claims.

In rebuttal of this testimony, the plaintiffs offered to prove that in March or February, 1867, one Williams offered to purchase the Monte Christo Claims from them, and that they refused to sell; and that the offer was made by Williams on behalf of the defendant. To this the defendant objected, upon the ground of irrelevancy, and also upon the ground that no authority was shown in Williams to act in the matter on behalf of the defendant. The objection was sustained, the plaintiffs excepting. The testimony before offered by the defendant was relevant to two distinct defenses: 1st..

The denial of the plaintiffs’ title; 2d. Its forfeiture under the mining rules and regulations. It was relevant to the first, because it tended to prove an abandonment by the plaintiffs long prior to the commencement of the action, and, therefore, that they had no title to the Monte Christo Claims at the date of the alleged entry of the defendant, for, although abandonment was not specially pleaded, evidence of abandonment was admissible on the question of the plaintiffs' title. (Wilson v.

Cleaveland, 30 Cal. 192.) If, then, the defendant offered the testimony for the purpose, in whole or in part, of showing an abandonment, the testimony of Williams should have been received in rebuttal of the abandonment, for such was its tendency. As we held in St. John v. Kidd, 26 Cal. 263, in order to sustain an allegation of abandonment, it must appear that there was a leaving of the claim without any intention of returning, or making any further use of it.

The leaving being established, it is competent for the opposite party to show any acts explanatory of the leaving, which tend to show that it was not accompanied with an intent not to return. Thus, in Richardson v. McNulty, 24 Cal. 339, we held that a judgment roll in an action by Richardson to recover the same ground against other parties was admissible upon the question of the intent with which he had left the ground, and tended to show that he had not left with the intent not to return. We also held the same doctrine in Wilson v.

Cleaveland, supra; and in conclusion, said: “Upon a question of abandonment, as upon a question of fraud, a wide range should be allowed, for it is generally only from facts and circumstances that the truth is to be discovered, and both parties should be allowed to prove any fact or circumstance from which any aid for the solution of the question can be derived.” As already suggested, the testimony offered by the defendant was also relevant to the question of forfeiture, and had counsel stated that they did not rely upon it as showing an abandonment, but only as showing a forfeiture, the ruling of the Court would not have been erroneous, for the question of intent is not involved in the question of forfeiture. (St.

John v. Kidd, supra.) There is nothing in the transcript, however, showing that counsel did not rely upon abandonment as a defense, and we cannot, therefore, say that the ruling was not erroneous. 2.

The instruction to which exception is taken relates to the question of forfeiture, and was given in the following words: “If the jury believe from the evidence that an essential requirement of the mining laws and customs of the district in which the ground in controversy is situated is that a certain amount of work should be done on a mining claim, and that after sufficient work has been done to hold it, in order to entitle the holder or locator to suspend work for two years, he must give notice to that effect, and have it recorded and renewed every six months; and if the jury should further believe from the evidence that the plaintiffs, or their grantors, have not substantially complied with these requirements of the customs, they will find for defendant, provided they also believe that whilst the ground was subject to be jumped the defendant located it in accordance with the mining rules and customs, and has ever since held it in accordance with the same.” The objection taken to this instruction is that it directs the jury to find for the defendant if they find from the evidence that the plaintiffs had failed to comply with certain mining rules and regulations, without accompanying the same with a further charge, as to whether those rules and regulations declared a forfeiture as the result of such noncompliance.

The failure of a party to comply with a mining rule or regulation cannot work a forfeiture unless the rule itself so provides. (McGarrity v. Byington, 12 Cal. 426.) There may be rules and regulations which do not provide that a failure to comply with their provisions shall work a forfeiture; if so, a failure will not work a forfeiture; hence, in charging a jury upon a question of forfeiture, the charge should be narrowed to such rules as expressly provide that a non-compliance with their provisions shall be cause of forfeiture.

If there was no other point in the case, we might not feel justified in reversing the judgment on this ground, but the instruction is not so carefully guarded in the particular indicated as it should be. We find nothing in the remaining instructions which breaks the force of the appellants’ objection to the one under consideration. Judgment and order reversed, and a new trial granted. It is farther ordered, that the remittitur be issued forthwith.