I. The Court erred in overruling the defendant’s demurrer to the complaint.
There was a non-joinder of parties defendant.
*370The plaintiff should have brought his suit against his copartners for his undivided interest in said claims, and for an accounting of the proceeds. Schelper v. Evans et al., 4 Cal., page 212.
Ejectments will not lie for the possession of a mining claim where the facts show that the claim is undivided and held in common by four copartners, three of whom stand by and acquiesce in the sale and purchase by an innocent person in good faith.
If one of the copartners suffer thereby, he must bring a suit against his copartners. An action of ejectment may be sustained on the ground of a prior possession alone; but to continue such possession there must be an actual Iona fide occupation or possessio pedis; a subjection of it to the will and control of the possessor as contradistinguished from the mere assertion of title. See Plume v. Seward et al., 4 Cal. 94.
2d. The evidence shows that plaintiff had abandoned his interest in the claim, and the instructions of the Court on this head were wrong.
“ Abandonment may arise from a single act, or from a series of acts; and a party once having abandoned his claim, will not be permitted to come in within the time allowed for commencing civil action to reassert his claim, to the prejudice of those who may have in the meantime appropriated it.” Davis v. Butler, 6 Cal. R. 510.
Where prior possession is relied upon, it will fail, if it be shown that he voluntarily abandoned his possession. Bequette v. Caulfield, 4 Cal. 278.
It cannot be contended in this case that defendant is a trespasser or wrongdoer, because he came into possession of said claims with a full knowledge of three-fourths of plaintiff’s copartners by purchase, and with their full knowledge and consent, and under color of title.
Before plaintiff can seek equity he must first do equity. He should first have tendered his proportion of all the expenses of opening up of said claims and of reconstructing said flume.
3d. In the case of Hix v. Bell, 3 Cal. 219, this Court has decided the question of the admissibility of miners’ laws governing the particular localities. I do not conceive, in the introduction of those laws as evidence, that it is necessary to show when the meeting was held, how many were present, whether each and every person present acquiesced *371in such laws, nor whether the books have been kept in any particular style and form.
It is sufficient to show that there are laws and customs by which the miners are governed: no matter how they are formed, so they are generally acquiesced in by those following the occupation of mining. Upon this point the Hon. Judge erred in instructing the jury.
4th. The mines belong to the General Government, and are free for her citizens to enter and extract the precious metals. The doctrine of tenants in common does not apply to this class of cases, any more than it applies to barter and trade.
R. T. Sprague for Respondent. No brief in the record.
Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring.
Ejectment for the recovery of mining claim.
The plaintiff in this suit sues for the recovery of a certain interest in mining claims in Shasta, the title to which he asserts to have been in himself and several others, in certain fixed proportions.
It is objected that the plaintiff cannot recover because he has not joined the other owners or claimants. We do not consider this point well taken. In order to a full vindication of plaintiff’s rights, and full investigation of the merits of the controversy, it was only necessary to sue the party who interfered with the plaintiff’s property, or did him wrong. The object of the plaintiff in the suit was not a partition of the common property, but to settle the right of the plaintiff, as against an adverse claimant, to his share and proportion; and this object could be effectually attained by the plaintiff in the form adopted. The question of abandonment was fairly left to the jury, as also the right of the defendant under the bill of sale from Julian. The claims, it seems, were held in possession by the partners and associates of the plaintiff; they, as such partners, were tenants in common, and it is well settled that the possession of one partner or tenant in common is the possession of all. The mere fact that one tenant in common, or partner, goes away and remains absent from the premises of the joint business or property, leaving his associates in possession, creates no presumption *372of abandonment; nor does his refusal to pay, or delay in paying the expenses of the business, or the assessments, create of itself a forfeiture. In order to the enforcement of the claim, some appropriate action by suit must be taken to liquidate the demand, and sell the property, or there must be at least clear and unequivocal proof of abandonment.
It is too clear for argument, that the mere passive acquiescence of the other partners or tenants in common in a sale of the interest of the plaintiff by a party having no title, cannot confer any upon the vendee. This would be to make title to property pass, not by the act or assent of the owner, but by the silence of his associates.
The plaintiff’s right having been fixed by these rules of property, which are a part of the general law of the land, could not be divested by any mere neighborhood custom or regulation, even if there were better proof than appears in the record of the existence of such. Nor do we see anything to prove that, by the mining regulations of the vicinity, the possession and working of the claim by a portion was not a sufficient possession and working for all; or that the mere temporary absence of one partner was a forfeiture of his interest, and that a stranger could then come in and appropriate his share.
On the whole, we think the learned Judge below presented the law fairly and clearly to the jury, and that their finding was in accordance with law and justice.
Judgment affirmed.