Opinion
Appeal from the District Court of the Fourteenth Judicial District, Nevada County.
Ejectment for a mining claim. At the trial, the plaintiff, on his cross-examination, admitted that he had not worked the claim for several years, but had during the time followed mining in Mexico, the machinery having been removed from the claim. It appeared, also, that he was aware the defendants had applied for a patent, and made no opposition thereto. The defendants were in possession under a patent. The question of abandonment was submitted to the jury, and they returned a verdict for the plaintiff. Judgment was rendered accordingly. Defendants moved for a new trial, which was denied, and they appealed.
COUNSEL:
J. N. Thorne, for Appellants.
Hupp & Crowley, for Respondent.
OPINION THE COURT
The verdict of the jury is attacked on the ground that the evidence affirmatively established that plaintiff had abandoned the premises in question. Upon looking into the record, we are of opinion that the verdict should have been set aside and a new trial granted on that ground. The abandonment was clearly established at the trial.
Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.