WICKERSHAM, District Judge. A mining claim is real property. By the provisions of section 62, Civ. Code, p. 367, Carter (a re-enactment of the Oregon Code in force at the time of the agreement in question), joint tenancy is abolished, and all persons having an undivided interest in real property are to be deemed and considered tenants in common. The parties to the agreement of April 26,1898, if at all interested in the Anny claim, were co-tenants, and not mining partners. Sections 788 and 796, 2 Findley on Mines.
Real property descends directly to the heir upon the death of the ancestor '‘subject to his debts.” Section 168, Civ. Code, p. 384, Carter. The heir obtains title by descent, and not through the process of the probate court. His title vests immediately upon the death of the ancestor, and the only jurisdiction through probate lies to enforce the lien of the ancestor’s debts against the real property. If there are no debts, the heir becomes vested at once with a complete title. Lohmann v. Helmer (C. C.) 104 Fed. 178.
If the ancestor was a co-tenant, the heir stands in his place. Speer’s sale of an undivided half interest was valid, and Marcy became, a co-tenant in the mine. A tenant in common may maintain an action for the recovery of a mining claim without joining his co-tenant. Morenhaut v. Wilson, 52 Cal. 263; Weise v. Barker (Colo. Sup.) 2 Pac. 919.
As to the right of the plaintiffs, as co-tenants, to enjoin the defendants from extracting and converting the gold to their exclusive use, Lindley says: “It may be generally conceded, particularly in the precious metal bearing states where the reformed procedure has been adopted, that Where a co-tenant in possession, who either works in so unskillful a 512 manner as to amount to destructive waste, or, being in possession under an unequivocal hostile assertion of exclusive title, seeks to appropriate the entire product to his own use, an injunction will lie at the instigation of the injured co-tenant.
The remedy at law by an action of trespass or trover for rents and profits, or one sounding in damages only, might he wholly inadequate.” 2 Lindley, § 790. The demurrer will be overruled.
Loading…