PLEADING AND PRACTICE. Continued.
is submitted, to supply an omission in the testimony occasioned by mis-
take or inadvertence. Id.
28. Verdict against evidence-Conflicting testimony.-The Supreme
Court will not disturb a verdict on the ground that it is against the evi-
dence, when the testimony is conflicting. White v. Todd's Valley W.
Co.,
29. Verdict of jury.—In an action for the diversion of water, the Su-
preme Court will require a case of very palpable mistake or error to be
made out, before it will overrule the verdict of the jury on issue of fact
joined. Brown v. Smith,
539
30. Form of denial.-Any form of denial which meets and traverses the
allegation, is admissible. If the denial is not evasive, but directly trav-
erses the matter alleged, it is good, without regard to the mere form in
which it is expressed. Hill v. Smith,
597
31. No admission by failure to reply-Error without prejudice.--It is
error to instruct the jury that plaintiffs admit the allegations of defend-
ant's answer by failure to file a replication; but when the allegations in
the answer are also proved upon the trial, such instruction does not preju-
dice the plaintiffs' case. Caruthers v. Pemberton,
622
32. Averments in complaint in suit for damages for sale of canal.—
In an action for damages for the sale of plaintiffs' interest in a canal and
flume under a judgment which was afterward reversed by the Supreme
Court of the United States, the complaint did not contain any direct aver-
ment that the canal and flume were ever constructed. Held, that this
fact sufficiently appeared by necessary inference, and that it is not ordi-
narily necessary to aver the existence of the subject-matter about which
litigation arises. Reynolds v. Hosmer,
657
33. Reversal of judgment operates ipso facto upon lower court.-When
the Supreme Court reverses the judgment of the lower court, and its man-
date to that effect is filed in the lower court, the judgment is reversed,
whether the lower court makes an order conforming its judgment to that
of the higher court or not. Id.
34. Demurrer to complaint for uncertainty.-A complaint, defective
because it fails to show in whom is the title to the subject-matter in con-
troversy, can not be reached by general demurrer; it should be attacked
by special demurrer. Id.
35. Findings construed.-The findings of fact by the court are like a
special verdict of a jury, and must be taken in connection with the plead-
ings to support the judgment; they can not be detached from each other,
bat must be read together for the purpose of ascertaining their meaning,
and if there is any conflict or discrepancy between general and special
findings, the specific findings must control. Barnes v. Sabron, 675
36. Order refusing new trial reviewed.-Upon application for a new
trial, as provided by the Practice Act, the court is authorized to decide
whether the findings sustain the judgment, and its action can properly be
reviewed by the Supreme Court on appeal from an order overruling the
motion for new trial.
See AMENDMENT; NEW TRIAL; PARTNERSHIP, 2; TENANTS IN COM-
MON, 2; VERDICT.
1. Title by possession before discovery of mineral in place.—A
prospector on the public mineral domain may protect himself in the pos-
session of his claim while he is searching for mineral; but if he allows
another to enter upon his claim, and first discover mineral in rock in
place, the second comer will have the better title to the mineral. Cross-
man v. Pendry,
431
2. Constructive possession, how proved.-A party claiming mining
ground not actually possessed and worked, and beyond the possessio
pedis, must show his right thereto by constructive possession, and he can
show such constructive possession only by physical works or monuments,
or by the local mining laws and rules, and compliance therewith. Robert
v. Wilson,
498
3. Possession of cultivated land not fenced.--The plaintiff was held
to be entitled to the use of the water of a certain creek for the purpose of
irrigating the land which he had under cultivation, though not fenced, as
well as for his stock and domestic purposes. Cultivation of land is an in-
dication of possession, whether inclosed or not. Barnes v. Sabron, 674
4. A party in possession, under a contract of purchase from the State,
is entitled to all the incidents and protection due to ownership. Id.
See AGENT, 1; DISCOVERY, 8; EJECTMENT, 2; INJUNCTION, 2, 6; RE-
LOCATION, 2.
1. U. S. grants to Pacific R. R.—The Pacific railroad companies take
the lands granted to them by the acts of Congress of 1862 and 1864, sub-
ject to ditch rights vested prior to the Mining Act of July 26, 1866, where,
under the provisional terms of those grants, the equity of the grantee
had not vested; and such equity did not vest before the certificate called
for in the acts had been made by commissioners as to the completion of
each section of forty miles. Broder v. Natoma Mining Co.,
671
1. Unconscionable arrangement enforced.-An unconscionable ar-
rangement will not be disturbed when there has been a ratification of it
with knowledge of all its bearings, after time has been had for considera-
tion. Kent v. Quicksilver M. Co.,
1. Object and effect of record.-The object of recording mining claims
is to give notice to others desiring to locate in the vicinity. The lan-
guage of the act of Congress authorizing miners to make regulations
"governing the location and manner of recording," implies that the act
of location is distinct from that of recording, except where the regulations
of miners make recording necessary to constitute a location; so that a
location may be complete and vest the exclusive right of possession before
any record thereof is made, unless recording is made an act of location, or
one of the acts necessary to constitute a location, by miners' rules or
regulations. Jupiter Co. v. Bodie v. Co.,
413
2. Forfeiture by failure to record.-The right to a mining claim will
not be forfeited by a failure to record the same, in the absence of a
miners' rule or regulation providing for a forfeiture on that ground.
See STATUTE OF LIMITAT.ONS, 1; NOTICE.
RECOUPMENT-See LEASE, 3, 6.
RELATION--See APPROPRIATION, 13; DILIGENCE.
1. Conveyance.-There is no law to prevent a party from relocating
his own claim by a different name, and, though he can not thus acquire
any more ground, a conveyance by the latter name will be valid. Phill-
potts v. Blasdell,
342
2. Relocation while in possession of others—Instruction construed.—
An instruction of the court below directed the jury to find for the defend-
ant if they believed that the E. M. Co. located the claims "at a time when
they were open and subject to appropriation under the local usage of the
district." Held, that this instruction did not imply that a relocation based
upon a failure to perform work under such local rules, could be made
while a party was in actual possession of the claim. Per SPRAGUE, J.,
dissenting. Bradley v. Lee,
RENTS AND ROYALTIES-See LEASE; CONTRACT, 3.
1. Loose rock reserved.-When the words of grant car y only rock in
place the exception of the loose rock is simply inoperative. Dexter Lime
Co. v. Dexter,
STATUTES-See MECHANIC'S LIEN, 1.
1. Ditch contract-Promise to pay the debt of another.-E. con-
tracted to build an extension to a ditch up on which a mortgage existed.
After work commenced, the holder of the mortgage instituted a foreclo-
sure suit, whereupon E. refused to complete the extension. The holder
of the mortgage then orally promised E. that he should be paid out of the
receipts for the sale of water by the receiver, E. having originally agreed
to be paid out of the proceeds of sales. Under this promise, E. com-
pleted the work. Held, that the contract was within the Statute of
Frauds, as a promise to pay the debt of another. Ellison v. Jackson
Water Co.,
1. Runs after debt matures-Record of trust deed-Third parties.-A
suit to foreclose a trust deed was begun more than four years (the period
of limitation) after the date of the deed but less than four years after the
maturity of the bonds which it was given to secure. Held, that the
action was not barred by the statute, and that the record of the deed se-
cured the mortgagee against a subsequent incumbrancer to the same ex-
tent as against the mortgagor. Bassett v. Monte Christo Co.,
2. Statute of Limitations against patent.-Where plaintiff claimed
title by Mexican grant confirmed by act of Congress and patent founded
thereon. Held, that evidence of adverse possession in defendants prior
to the date of plaintiff's patent was properly excluded, because the
Statute of Limitations only began to run at that date. Reed v. Spicer.
330
3. Adverse possession of water.-Although the plaintiffs may have
had the prior right to water, yet if they or their grantors allowed the de-
fendant to acquire and hold for five years adverse possession of the water
which they had appropriated, or any part thereof, they, to that extent,
lost their right by force of the statute. Davis v. Gale,
604
STOCKHOLDER-See ESTOPPEL, 1, 2.
1. Right of surface support.-Whether the general rule giving to the
surface of land the right to surface support applies to the case of a ditch,
Quære. Clark v. Willett,
1. Use of channel.-A miner is entitled to the free use of a channel
of a creek, to allow the water which comes down from above to flow away
from his mining ground, but he has no right to fill the channel of the
creek with tailings and debris, and let it flow down upon another's ground.
-Nelson v. O'Neal,
See DAM, 9; MEASURE OF DAMAGES, 3, 4.
1. Annual payments, not annual profits.-Payments of purchase
money by annual payments are not annuities, annual profits or gains--
under the income tax acts. Foley v. Fletcher,
1. Sale by tenants in common to tenants in common.-H. and P. were
tenants in common of a mining ditch. H. conveyed all his interest to de-
fendant, and P. all his interest to plaintiff by a deed of later date. Held,
that neither of the grantors could be considered as having conveyed
against the will of the other, and that their grantees, the plaintiff and de-
fendant, became tenants in common. Reed v. Spicer,
2. Joinder of co-tenants.-In an
tenants in common should be joined.
separately. Parke v. Kilham,
330
action for diverting water by ditch,
It would be error for them to sue
523
3. Tenancy in common presumed-Parties.-The averment that the
plaintiffs owned seven tenths of the canal, raises the legal presumption
that they owned it as tenants in common, and in California tenants in
common may sue jointly, or if one be dead his administrator may join
with the other tenants. Reynolds v. Hosmer,
See EVIDENCE, 3; LOCATION, 12.
TRESPASS-See CRIMES, 20; LOCATION, 9.
1. Fiduciary purchasing at his own sale, after bidding off parcels
sufficient to pay debt.-When after sufficient parcels had been sold under a
trust deed to pay the debt secured, the remaining parcels were knocked off
at the same sale and bid in by the creditor, a director in the company.
Held, that the sale of such parcels in excess was void because as to such
property the directors were the vendors and they could not purchase at a
sale made by their own authority. Harts v. Brown,
1
2. Subrogation in such case.—In such case where the receipts in excess
of the debt secured, were used to pay off bona fide debts of the company,
the parties paying such debts were entitled to be subrogated to the rights
of the creditors paid, and such amounts allowel to them; but upon an
accounting they should be charged with the full value of such parcels
instead of the amount of the bids. Id.
3. Cestui que trust-Notice to trustee.-Notice to a trustee is not notice
to the cestui que trust, where the trustee has no official relation to the
transaction in controversy. Chew v. Henrietta Co.,
69
See CORPORATIONS, 1-4, 11.
USAGE-See DISTRICT RULES.
VENDOR AND PURCHASER-See LEASE.
1. Distinct defenses.-If a general verdict is found for the defend-
ants in a suit in which there are several distinct defenses, the verdict
will be allowed to stand if it be right as to one, though wrong as to all
the others. Kidd v. Laird,
573
2. Conclusiveness of verdict.-A verdict found on any fact or title, dis-
tinctly put in issue, is conclusive in another action between the same par-
ties or their privies in respect of the same fact or title. It is not sufficient
that the particular fact or title is put in issue. It must be tried by the
jury, and constitute the basis and foundation of the verdict. Id.
3. General verdict.-A general verdict is limited in its effect to such
issues as necessarily controlled the action of the jury. Id.
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