This is an appeal from a judgment of nonsuit and. the order denying a new trial. The suit was brought to recover six hundred feet of mining ground. The evidence of the plaintiff shows that a party of miners, on or about the 1st of June, 1861, located, in the usual mode, three thousand feet or more in length on a copper ledge, and commenced the work of developing the mine; that from the 7th to the 10th of June— certainly as early as the 10th—the defendants also located, by putting up notices and immediately commencing work upon *24it, that portion of the same lode now in controversy, and that they have ever since been in possession, claiming it under said location; that on the 26th of the same month the locators first named and their assigns, in pursuance of the statutes of California, organized themselves into a corporation under the name of the Copper Hill Mining Company, the present plaintiff; that the said parties then, to use their own phrase, “ surrendered their claim to the corporation,” and took stock in lieu of it. The language of all the witnesses on this point is nearly identical, and the following testimony of Mr. Brown will serve to express in the language of the witnesses all that was said in regard to the transfer of the title to the plaintiff: “ I surrendered all my interests and those I was representing in and to said claim to corporation, Copper Hill Mining Company, plaintiff, and took certificates of stock in lieu. There were no deeds of this claim made to the corporation by any of the owners.” The following is also stated in the records as an admission by plaintiff: “ Plaintiff here admitted that no deeds or conveyances in writing were made to the corporation by any of the owners or" holders of said mining claim; that all rights, claim, and possession of, in, and to said mining ground, whatever the same might be, are surrendered and given up to the company and merged in said corporation, such owners receiving from corporation certificates of stock according to the amount so surrendered.” The foregoing facts and testimony, together with subsequent work and other acts of possession and ownership, on behalf of the corporation, on portions of the claim outside of the ground in dispute, constitute the evidence of title upon which plaintiff relied for a recovery.
The appellant claims that under the decision in Table Mountain Tunnel Company v. Stranahan, 20 Cal. 198, the evidence establishes a title sufficient to authorize a recovery. We think the principle announced in that case not applicable to the one under consideration. In the former case, the corporation had acquired the possession of the locators to the entire claim, and the defendants subsequently entered upon *25the possession of the corporation. In the present instance, the defendants entered into the adverse possession of the disputed ground before the corporation was formed, and they were in such adverse possession at the time of the organization of the corporation and the so-called “ surrender” of the claims to the plaintiff, and the acceptance of the stock in lieu thereof by the locators.- The corporation did not succeed to the possession of the locators in that part of the lode in dispute, for the reason that it was then and it has ever since been in the adverse possession of the defendants. The entry of the plaintiff upon such portion of its grantors’ claims as was at that time in the possession of such grantors, did not di^vv^^-'V;. after it the possession of that portion of their origcíainf-'^# \ which was then in the adverse possession of the..oe:Q?nda"yts. '¿f '"'5 The locators, could only surrender such possession as they haff, ™ ^ and that, as shown by the plaintiff’s own evidence, did? not",.;;, ’;j at the time of the surrender, or at any subsequent irme, *3 f extend to the mining ground in dispute. Theposses§ionref the ground in controversy having never been transferred plaintiff, it was necessary to show that the plaintiff had acquired the title of the locators under whom ft claimed. The witnesses, with singular uniformity of expression, use the loose language: I “surrendered”.my “claim” or “interest,” “and received certificates of stock, in lieu.” They do not state what acts they performed which they regarded as constituting the “ surrender.” It is manifest, however, that these parties, like many others in like cases, .were at the time of the transaction acting under the erroneous impression that because they constituted the stockholders of the new corporation, they were, therefore, as to this mining enterprise, identical with the corporation itself, and that their title to the mining claims vested in the plaintiff by virtue of the act organizing themselves into a corporation for the purpose of working the mine. By that act alone, they only created an ideal being capable of receiving a conveyance of their respective interests in the mine. It did not invest the corporation with the title to those interests. In all probability there was *26no formal attempt or agreement to transfer the title. But place the facts appearing in the evidence in the light most favorable to the plaintiffs, and the most that can be claimed for them is, that in consideration of the receipt of the certificates of stock, there was an agreement and attempt to make an oral, verbal transfer to the plaintiffs of the respective interests of the locators in the mining ground at the time in the adverse possession of the defendants. We think that such a transfer is insufficient to pass the title. Under such circumstances a written instrument is necessary.
The appellant insists that the question as to the adverse possession of the defendants should have been submitted to the jury. The plaintiff’s testimony clearly shows that the possession was adverse. The motion for nonsuit was made upon the close of plaintiff’s testimony. It.was not necessary to submit the question to the jury.
Judgment affirmed.