S. RATHBUN, Appellant, v. J. H. ALEXANDER et al., Respondents

S. RATHBUN, Appellant, v. J. H. ALEXANDER et al., Respondents. No. 2398; April 13, 1871. Mining Ground — Eight of Occupant as Against Intruder. — One in actual possession of mining ground, although without title, may proceed against a mere intruder having no superior right of entry. Ejectment. — In 'an Action for the Possession of Land, failure by the plaintiff to prove actual possession by him of all the land described in the complaint does not call for a nonsuit if he has proved possession of a part. APPEAL from Eleventh Judicial District, Calaveras County. W. L. Hoskins and W. L. Dudley for appellant; James T. Farley for respondents. [MAJORITY — CROCKETT, J.] CROCKETT, J. — If the plaintiff established the actual possession of any portion of the mining ground in controversy at the time of the defendants’ entry, the nonsuit was improperly granted. As against a mere intruder, having no better right of entry than himself, if the plaintiff had the actual possession, he is entitled to be protected in it; and this court has had occasion in several eases to consider what acts of dominion will constitute an actual possession of mining' ground: English v. Johnson, 17 Cal. 107, 76 Am. Dec. 574; Hess v. Winder, 30 Cal. 349. I think the plaintiff brought himself clearly within the rule established in these eases as to a portion, if not to the whole, of the ground in contest. The testimony certainly tended strongly to establish the actual possession of the plaintiff as to a portion, at least, of the demanded premises; and this made out a prima facie case against the defendants as to this portion, at least. The nonsuit was improperly granted. Judgment reversed and cause remanded for a new trial. We concur: Rhodes, C. J.; Wallace, J.; Sprague, J.; Temple, J.