evidenced by use, so we think it can not be lost by disuse. And as there was no adverse enjoyment to raise the presumption of a conveyance or release of it, the right of those holding the written title remains unimpaired.

New trial granted.

PARTRIDGE v. MCKINNEY ET AL.

(10 Cal. 181. Supreme Court of California, 1858.)

Abandonment will not be presumed from the lapse of time (shown in this case.)

Adverse possession as notice. Actual adverse possession is notice to one who purchases from one whose sole title is possession. If A sell to B, and B enter upon and remain in possession, a subsequent sale by A to C would be affected with notice resulting from such possession; but if B quit possession, and while out of possession, and his deed not recorded, A sell to C, the latter vendee is an innocent purchaser. Idem. Where possession is notice and the possession ceases, the notice ceases with it.

Possession of tenants in common, inter se. The possession of one tenant in common is possession for all, but this rule does not apply where one tenant claims to hold adversely to the others.

Appeal from District Court, Ninth Judicial District, County of Shasta,

In the month of November, 1853, the defendant Townsend, and one Keller, commenced the construction of a dam and ditch, for the purpose of diverting the waters of Clear Creek, to be used for mining purposes. After making some little progress in the work, they, on the 16th of December, 1853, sold one undivided third interest to plaintiff, by a sealed instrument, which was never acknowledged or recorded. On the 15th of April, 1854, Keller transferred his interest to Townsend by written instrument, not under seal, and not acknowledged or recorded. On the 20th of May, 1854, the work was suspended by agreement of Partridge and Townsend, with the understanding that it should be resumed in the spring of 1855. The cause that induced this suspension of

the work, was the fact that a mining company had a claim in the bed of the stream above the dam; and that it was agreed that this company should work their claim during the year 1854, and that Townsend and Partridge should be at liberty to resume and finish their dam and ditch at any time afterwards. Partridge left the vicinity and went to Marysville, where he remained until May, 1855, when he returned and claimed his interest in the property. In September, 1854, the mining company, having exhausted their claim, abandoned it, and Townsend at once resumed work, and so far completed the dam and ditch as to let the water into the ditch in December, 1854. There is nothing in the evidence to show that Townsend ever gave Partridge any notice that the mining company had abandoned their claim; but there is distinct proof that Partridge, in the fall of 1854, notified Townsend that he would return in the spring of 1855 to resume the work. After the return of plaintiff, he did not commence suit until the 22d of May, 1857. On the 29th day of May, 1856, Townsend, by deed properly acknowledged and recorded, conveyed one undivided half of the property to defendant McKinney for the consideration of $5,000; and on the 15th day of September, 1856, for the same consideration, he conveyed the other undivided half, by deed regularly acknowledged and recorded, to the defendant Elmore. The defendants, McKinney and Elmore, at once entered into possession, under their respective deeds; and were in possession at the commencement of this suit, claiming the entire property. It was conceded, on the trial, that they had each only paid one-half the purchase-money to Townsend, at the commencement of this suit. The plaintiff sued to recover the possession of one-third interest in the premises, obtained judgment in the court below, and the defendants appealed.

ISAAC BOGGS, for appellant.

SPRAGUE & MCMURTRY, for respondents.

BURNETT, J., after stating the facts, delivered the opinion of the Court.

There is nothing in the position that plaintiff had abandoned

his interest in the property in dispute. The law could not presume such an abandonment from the lapse of time: Crandall v. Woods, 8 Cal. 144; Bird v. Lisbros, 9 Cal. 1. And there was nothing in the testimony, as the court justly found, to show any intention to abandon.

But the most important point in the case is, whether the defendants, McKinney and Elmore, were entitled to the property, as against the plaintiff, upon the ground that they were subsequent purchasers in good faith and for a valuable consideration, they having first recorded their conveyances: Wood's Dig. p. 103, § 26. If this property is to be considered real estate, there can be no doubt as to the point.

In the case of the Merced Mining Company v. Fremont, 7 Cal. 317, 327, we held that "the owner of a mining-claim has, in practical effect, a good vested title to the property;" and that "his right to protect the property, for the time being, under the peculiar circumstances of the case, was as full and perfect as if he was the tenant of the superior proprietor for years, or for life." And, in the subsequent case of Crandall v. Woods, 8 Cal. 143, we held that "one who locates upon the public lands, with a view to appropriating them to his own use, becomes the absolute owner thereof, as against every one but the government; and is entitled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights antecedently acquired." So in the case of Bird v. Lisbros, 9 Cal. 1, we held that "possession is evidence of title, and the party in possession is therefore deemed, in law, to be the owner; and when he conveys the land to another, he is deemed, in law, not to convey his evidence of title, but the title itself; of which the law, by reason of such evidence, adjudges him the owner, as against all not having a superior title."

In the same case we held, referring to the preceding case of Bird v. Dennison, 7 Cal. 297, "that when a party relied upon possession as his sole evidence of title, he must be held to know the acts of those through whom he claims; and if he claims the benefit of some of their acts, he must share the responsibility of those that may be against him, when another party is, at the time of his purchase, in the actual adverse possession of the premises. In other words, the actual adverse

possession of another party, at the time of the conveyance, will be notice to the purchaser, whose grantors only claimed by a possession short of the period fixed by the statute of limitations."

If, in this case, Partridge had sold to Townsend by a conveyance not recorded, and, afterward, while Townsend was in possession, claiming the entire property as his own, Partridge had sold to another, by deed duly acknowledged and recorded, the second purchaser from Partridge would have been deemed to have purchased with notice; and would not, therefore, have been considered "a subsequent purchaser in good faith;" and Townsend would have been permitted to show the real state of the case as against this second vendee of Partridge. But the facts of this case are very different. The whole title of all parties rested upon possession only. Partridge had once been in possession with the others; but his possession was subsequent to that of Keller and Townsend. The conveyance from them to Partridge not having been recorded, there was no record notice that the title to the one-third interest had ever passed to Partridge; and he not being in possession at the date of the separate deeds from Townsend to McKinney and Elmore, they had no notice of any kind, and were, therefore, innocent purchasers for value. Conceding that the possession of Partridge, whilst it continued, was notice to all the world, the moment that possession ceased, the notice (which was only the legal effect of such possession) also ceased. It is true that the possession of one tenant in common is possession for all; but this possession in one for all ceases the moment it becomes adverse to the others: 4 Kent. 370. Townsend claimed to hold, and did hold, the entire property adversely to Partridge, and could not, therefore, be deemed, in law, to hold for him.

Our conclusion is, that the plaintiff had no right, in this form of action, to recover against any of the parties defendant. Although the question does not arise in this case, as it now stands upon the record-and we, therefore, make no binding decision upon the point-yet we may remark that it would seem, from the testimony contained in the record, that plaintiff would have a right to an account, and for the value of his interest sold, as against Townsend; and a remedy against

McKinney and Elmore, as debtors of Townsend, under proper circumstances.

For these reasons, the judgment is reversed, and a new trial ordered, with leave to the plaintiff to amend his complaint. We give this leave to amend in order to prevent the bar of the statute of limitations.

FIELD, J.-I concur in the judgment.

CALDWELL V. COPELAND ET AL.

(37 Pennsylvania State, 427. Supreme Court, 1860.)

Surface possession after severance. The rule that possession of the sur face is possession indefinitely downward, does not apply after there has been a grant or reservation of the minerals separate from the surface ownership.

What constitutes adverse possession. After severance of the surface and mineral titles, acts of ownership, such as constitute possession and confer title under the statute of limitations, must be acts done with reference to the mines, as such.

Land. Mines are land. The mineral right, after severance from the surface title, is land.

Proscription distinguished from adverse possession. Prescription may give the right to work a particular mine, but can not give title to the mine. Prescription refers to hereditaments incorporeal only, but the title to a mine as land, must be made out by documentary evidence or adverse possession.

Error to the Common Pleas of Westmoreland County.

This was an action of trespass quare clausum fregit, brought by William S. Caldwell against Thomas Copeland and John Copeland, for an alleged breaking and entering on the lands of plaintiff, in Sewickley township, containing about 150 acres, and carrying away 10,000 bushels of bituminous coal. To a declaration in the usual form, the defendants pleaded "not guilty," and on this issue, the parties went to trial. The case was this:

James Caldwell, prior to the 27th day of May, 1831, was