Morenhaut

The plaintiffs, by their entry, and by the work done upon the shafts and cut, had undoubtedly a prior possession of a portion of the mining claims in controversy. This possession would entitle them to recover at least that portion of the mine from the defendants, who were subsequent locators, unless the plaintiffs had cither abandoned their possession prior to the entry of the defendants, or had forfeited the claim by a non-compliance with the rules or regulations of the miners of the vicinity.

1. It is not found that the plaintiffs abandoned their claims. On the contrary it is found that they were driven away by hostile Indians, leaving their tools at another mine in the vicinity, and did not return prior to the location by the defendants, partly on account of a supposed continuance of Indian hostilities, and partly because of the required expenditure of money, and because they thought they had performed sufficient work upon the mine to entitle them to hold it. This finding substantially negatives that intent on the part of the plaintiffs necessary to constitute an abandonment. (Richardson v. McNulty, 24 Cal. 345 ; Bell v. Bed Rock T. & M. Co. 36 Cal. 215 .)

*268 2. There is no…