Opinion
Appeal from the District Court, Tenth Judicial District, County of Yuba.
Ejectment to recover an undivided one-tenth of a tract of mining claims at Sucker Flat, said county, known as the " Dusty Mining Company's Claims." The cause was tried by the court without a jury. The court below found " that the defendant, the Enterprise Mining Company, entered upon said claims at the time and in the manner alleged in the complaint, and took possession thereof, and now is, and at the time of the commencement of this action was, in the possession of said claims, withholding the possession thereof from plaintiff."
Judgment was rendered for the plaintiff, and the defendant filed a statement in support of a motion for a new trial. The specification referred to in the opinion was as follows: " The evidence was insufficient to justify the twelfth finding of the court, for that there was no evidence showing, or tending to show that the defendant, the Enterprise Mining Company, on the 15th day of October, 1871, or ever at any time, wrongfully or forcibly entered upon the undivided one-tenth, or any part of said claim, or ejected the plaintiff therefrom."
The application for a new trial was denied and the defendant appealed.
COUNSEL
W. C. Belcher and J. O. Goodwin, for the Appellant.
Vanclief & McCann, for the Respondent.
JUDGES: Niles, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
NILES, Judge
We shall not disturb the order refusing a new trial. There was some evidence tending to show a possession of the premises by the plaintiff's grantor prior to the entry of the defendant. This was the main fact in controversy and was found by the court in favor of the plaintiff. It is urged by appellant that there was no evidence to support the finding that the defendant entered upon the mining claims in controversy and took possession and withheld possession from the plaintiff. It is a sufficient answer to this objection that the statement upon motion for a new trial contains no specification as to the insufficiency of the evidence in this regard. The only specification upon this subject points to the character and not to the fact of the entry and ouster.
Judgment and order affirmed.