FRANK BOSQUETT v. W. H. CRANE and JOHN S. CHAPMAN, 51 Cal. 505

By the Court: One of the material issues in the cause was, whether the plaintiff at the time of the defendants’ application to purchase was in the adverse occupation of the land in controversy. There is no finding on this issue, but there is a finding to the effect that at the dates of the defendant’s applications to purchase, the plaintiff and others “were upon portions of said section, occupying the same as miners and claiming thereon mining claims” under the mining laws and customs of that locality.

It does not appear whether these mining claims were upon the land in controversy or upon some other portion of the section. The findings should have responded to the issue, as to the adverse occupation of the premises in dispute; and as we have repeatedly held that under the Code the findings must support the judgment, it results that the judgment is erroneous. The court having failed to find upon a material issue, no judgment could be pronounced in the absence of such a finding.

But if the court below can determine this issue on the evidence taken at the trial, it may amend its findings in this particular without the necessity of another trial, and will thereupon proceed to pronounce judgment. Otherwise it will proceed to hear further evidence upon that point, after due notice to the parties.

One of the defenses set up in the answer is, that before the commencement of this action the defendants brought an action of trespass against the plaintiff, claiming damages for an alleged trespass by the plaintiff upon the land in controversy, and that in that action the present plaintiff by his answer put in issue the title of these defendants under their certificates of purchase, and that such proceedings were had therein that a final judgment was rendered in favor of these defendants against the present plaintiff for damages, and restraining him from working the mines on the land.

The court found this fact in favor of these defendants, and as a conclusion of law found that the judgment in that action was a bar to the plaintiff’s recovery. This was error. The very purpose of the present action is to determine the validity of the defendants’ certificates of purchase, and whether they conferred upon them the better right to purchase the lands from the State.

This issue could not have been determined in the former action; and the court in that action had no jurisdiction to decide whether the plaintiff or defendants had the better right to purchase the land from the State; and it is the precise purpose of this action to determine that question. That portion of the answer which sets up this defense should have been disregarded, and the conclusion of Iuav founded upon it was erroneous. Judgment reversed and cause remanded for further proceedings in accordance with this opinion. Remittitur forthwith. '