value of improve be allowed ments can as a set-off. 741. (§ 257.) When damages are claimed for When withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a set-off against such damages. NOTE.-1. VALUE OF IMPROVEMENTS CAN ONLY BE ALLOWED AS A SET-OFF TO THE DAMAGES.-Yount vs. Howell, 14 Cal., p. 464; Ford vs. Holton, 5 Cal., p. 319. Such set-off must be claimed in the answer.-Carpentier vs. Gardiner, 29 Cal., p. 160. The defendant cannot have his improvements set off against the mesne profits, if the improvements were made after plaintiff's title accrued, or where the holding of the defendant is not adverse.—Bay vs. Pope, 18 Cal., p. 694. One who entered under a bond for a deed from the plaintiff, can set off his improvements against the damages for use and occupation.-Kilburn vs. Ritchie, 2 Cal., p. 145. Where the defendant occupied and improved the land, under color of title, the improvements erected by him constitute a set-off, to the extent of their value, to the damages recovered by the plaintiff for the withholding of possession.-Welch vs. Sullivan, 8 Cal., p. 165. But the improvements must have been made in good faith.-Carpentier vs. Mitchell, 29 Cal., p. 330; Carpentier vs. Small, 35 Cal., p. 347; Love vs. Shartzer, 31 Cal., p. 488; Carpentier vs. Mendenhall, 28 Cal., p. 485. 2. DAMAGES.-In ejectment, if the Court finds the value of the use and occupation in both gold and U. S. Treasury notes, judgment may be rendered for the currency value.-Carpentier vs. Small, 35 Cal., p. 347. If the defendant pleads the Statute of Limitations, the plaintiff can only recover the rents and profits (Carpentier vs. Mitchell, 29 Cal., p. 330), or damages for the detention for three years next before the commencement of the action.-Love vs. Shartzer, 31 Cal., p. 488. Plaintiff is entitled to recover damages measured by the value of the rents and profits up to the time of judgment.-Love vs. Shartzer, 31 Cal., p. 488. 742. (§ 258.) The Court in which an action is pending for the recovery of real property, or for dam 84-VOL. I. An order may be made to allow a party to measure the land in dispute. ages for an injury thereto, or a Judge thereof, or a County Judge, may, on motion, upon notice by either survey and party, for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof, and of any tunnels, shafts, or drifts thereon, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action. Order, what to contain and how served. sary injury 743. (§ 259.) The order must describe the property, and a copy thereof must be served on the owner If unneces- or occupant; and thereupon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurement; but if any unnecessary injury be done to the property he is liable therefor. done, the party surveying to be liable therefor. A mortgage must not a convey 744. (§ 260.) A mortgage of real property shall be deemed not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. ance, whatever its terms. When grant injunction; NOTE. It was held in Hughes vs. Davis, 40 Cal., p. 120, that an absolute deed, though shown by parol evidence to have been intended as a mortgage, does convey the legal title. In Jackson vs. Lodge, 36 Cal., p. 28, upon a review of all the authorities, the reverse was held. See, also, Secs. 2888, 2920, and 2924 of the Civil Code, and notes. 745. (§ 261.) The Court may, by injunction, on good cause shown, restrain the party in possession from during fore doing any act to the injury of real property during the foreclosure of a mortgage thereon; or, after a sale on execution, before a conveyance. closure; after sale on execu tion, before conveyance. NOTE.-In Sands vs. Pfieffer, 10 Cal., p. 258, it was held that this remedy was only preventative, and did not exclude any other remedy. 746. (§ 262.) When real property has been sold on execution, the purchaser thereof, or any person who may be for injury recovered to the may have succeeded to his interest, may, after his Damages estate becomes absolute, recover damages for injury to the property by the tenant in possession after sale, and before possession is delivered under the conveyance. possession after sale, etc. not to be 747. (§ 263.) An action for the recovery of real Action property against a person in possession cannot be pre- prejudiced judiced by any alienation made by such person, either alienation before or after the commencement of the action. pending suit. claims, concerning to be 748. (§ 621.) In actions respecting mining claims, Mining proof must be admitted of the customs, usages, or actions regulations established and in force at the bar or dig- governed gings embracing such claim; and such customs, usages, rules. or regulations, when not in conflict with the laws of this State, must govern the decision of the action. NOTE.-The power of miners to make rules and regulations was sustained in English vs. Johnson, 17 Cal., p. 107; see, also, Praulus vs. Jefferson G. & S. M. Co., 34 Cal., p. 558; Praulus vs. Pacific G. & S. M. Co., 35 Cal., p. 30. The Act of 1859 (Chap. 97) respecting the mines; the Practice Act of 1851 (Sec. 621), relative to proof in actions respecting mining claims; the Act of 1852, relative to possessory actions, commented on, and the conclusion reached that, so far as they touched the question of a license from the State to mine, they relate to public lands alone.-Biddle Boggs vs. Merced Mining Co., 14 Cal., p. 279. Where parol evidence is given of certain regulations of miners, and it does not appear until the cross-examination of the witnesses that the regulations were in writing, the course to pursue, if any objection is taken to the evidence, is by motion to strike it out.-Kiler et al. vs. Kimball, 10 Cal., p. 267. Mining laws are to be construed by the Court, and the question whether by such laws a forfeiture had accrued, is a question of law, and cannot be properly submitted to a jury.-Fairbank vs. Woodhouse, 6 Cal., p. 433. Where a party's rights to a mining claim are fixed by the rules of property, part of the general law of the land, they cannot be divested by any mere neighborhood custom or regulation.Waring vs. Crow, 11 Cal., p. 366. The quantity of ground a miner can claim by location or prior appropriation, for mining purposes, may be limited by the mining rules of the district.-Prosser vs. Parks, 18 by local Cal., p. 47; English vs. Johnson, 17 Cal., p. 10. But the quantity he can acquire by purchase cannot be limited.-Prosser vs. Parks, 18 Cal., p. 47. The fact that mining laws and regulations were passed on a different day from that advertised for a meeting of miners, does not invalidate them. The Court will not inquire into the regularity of the modes in which these local legislatures or primary assemblages act. They must be the judges of their own proceedings. It is sufficient that the miners agree-whether in public meeting or after due notice—upon their local laws, and that these are recognized as the rules of the vicinage, unless fraud be shown or other like cause for rejecting the laws.— Core vs. McBrayer, 18 Cal., p. 582. If a mining custom allows one to locate a lode or vein for himself and others, by placing thereon a notice with his own name and the names of the others appended thereto, designating the extent of his claim, and one person thus locates a lode for himself and several others, some of whom have no knowledge of the location, the persons who have no knowledge of the location by the same, become tenants in common with the locator and the others, and cannot be divested of their interest by the locators afterwards tearing down the notice and posting up another, omitting their names, unless this is done with their knowledge and consent.-Morton vs. Solambo Copper Mining Co., 26 Cal., p. 527; Gore vs. McBrayer, 18 Cal., p. 582. A local mining regulation or custom, adopted after the location of a mine, cannot limit the extent of a claim previously located.-T. M. Tunnel Co. vs. Stranahan, 31 Cal., p. 387. Where the original records have been destroyed by fire, and the miners, by a resolution subsequently passed, requiring the claims to be recorded in a new book, such book is admissible in evidence in the trial of an action for a mining claim, to show that the rules of the vicinage had been complied with.-McGarrity vs. Byington et al., 12 Cal., p. 426. Plaintiffs having offered in evidence the book where mining claims are recorded according to mining rules, to show title in the original locators, then offered the entry in that book of the transfer of said claims from such locators to the lessors of plaintiffs, as proof of the fact of transfer. The Court properly excluded this entry until proof aliunde of the transfer.-Atwood & Walker vs. Fricot, 17 Cal., p. 37. Upon the question of reasonableness of the extent of a mining location, a general custom, existing anterior to the location, may be given in evidence.— Table Mountain Tunnel Co. vs. Stranahan, 20 Cal., p. 199. Controversies affecting a mining right must be solved and determined by the customs and usages of the bar or diggings embracing the claim to which such right is asserted or denied, whether such customs and usages are written or unwritten.-Morton vs. Solambo C. M. Co., 26 Cal., p. 527. CHAPTER IV. ACTIONS FOR THE PARTITION OF REAL PROPERTY. SECTION 752. Who may bring actions for partition. 753. Interests of all parties must be set forth in the com plaint. 754. Lienholders not of record need not be made parties. 755. Plaintiff must file notice of lis pendens. 756. Summons must be directed to all persons interested in the property. 757. Unknown parties may be served by publication. 758. Answer of defendants, what to contain. 759. The rights of all parties may be ascertained in the action. 760. Partial partition. 761. Lienholders must be made parties, or a referee be appointed to ascertain their rights. 762. Lienholders must be notified to appear before the referee appointed. 763. The Court may order a sale or partition and appoint referees therefor. 764. Partition must be made according to the rights of the parties, as determined by the Court. 765. Referees must make a report of their proceedings. 767. Judgment not to affect tenants for years to the whole property. 768. Expenses of partition must be apportioned among the parties. 769. A lien on an undivided interest of any party is a 771. Application of proceeds of sale of incumbered prop erty. 772. Party holding other securities may be required first to exhaust them. |