By the Court, Sanderson, C. J.
This is an action of ejectment to recover an undivided sixteenth interest in a certain mining claim, situated in the County of Sierra. The defense mainly relied upon is abandonment. On the trial, the plaintiff offered in evidence the judgment roll in a certain action brought by him against one Donahue & West-field to recover the same interest sued for in this action, to which the defendants were not parties or privies. The judg[343]*343meat roll was admitted by the Court under the exception of the defendants. Touching the effect of the judgment roll as evidence, the Court instructed the jury as follows :
“ None of the defendants in this action were parties to the action in which Richardson was plaintiff and Donahue & West-field were defendants; and the papers in the last named action which have been introduced in evidence in this case do not tend to show that the plaintiff herein has title to the ground in dispute as against the defendants in this action; and the defendants in this action are not bound by any order, judgment, or decree rendered in said action of Richardson v. Donahue & Westfield. The jury, however, in considering the other question of abandonment, may take into consideration the fact that such suit was brought by Richardson in determining the intent of the party.”
For the purpose for which it was received by the Court, the judgment roll was clearly admissible. The fact that Richardson had, long prior to the commencement of the present action, brought another suit to recover the same ground against other parties who were then in possession and claiming it adversely to him, and had prosecuted it successfully to final judgment, was strong evidence, if not conclusive, upon the question of abandonment. The fact could not be proved more satisfactorily than by a production of the record itself. The fact that, unexplained, it might mislead the jury upon some other question involved in the case, does not affect its admissibility. In such a case it is the duty of the Court to guard against any unlawful effect, as was done in the present instance, by proper instructions to the jury; and if the Court fails to do so, it is the duty of counsel to ask instructions to that end.
The next error assigned is as to an instruction given by the Court, in the following words, viz: “ The abandonment must also be made without any desire that any particular person should acquire the property, for if such desire exist, the transaction might be construed a gift.”
This is but part of a long instruction upon the question of abandonment, given by the learned Judge of the Court below, [344]*344remarkable for its clearness of diction and soundness in principle, and to which no other objection is made. The sentence above quoted appears to be based upon the authority of Stephens v. Mansfield, 11 Cal. 365, and it is claimed by counsel for appellants that the opinion in that case, so far as it gives sanction to this definition of abandonment, is mere obiter dictum. In that case the plaintiff, Stephens, was in possession of a town lot in the City of Piacerville, part of the public domain, under a deed from another, who was in possession at the time the deed and possession of the lot was given. After remaining in possession under his deed for some months, Stephens made a verbal sale of the lot, for six hundred dollars, to one Hunter, who occupied.for about two years, and sold to the defendant, Mansfield. It was claimed by the defendant that the transaction between Stephens and Hunter amounted to an abandonment of the lot in favor of the latter; but the Court held otherwise, and that “ admitting the interest of the plaintiff in the premises such as could be divested by abandonment, there can be no such thing as abandonment in favor of a particular individual or for a consideration. Such act would be a gift or sale.”
It is true, as contended by counsel for the appellants, that so far as the case of a gift is concerned, this decision goes outside of the facts; but, upon principle, there is no difference between the act of selling and the act of giving, so far as their effect as evidence upon a question of abandonment is concerned. If the gift be complete—that is to say, if the thing I given be delivered, and accepted by the donee, a transfer is the result, which transfer as much precludes the idea of abandonment as a transfer resulting from a sale. No question of abandonment can arise where a transfer has been had by the act of two parties. To an abandonment of the character involved in this and all similar oases, there can be but one party. The mining ground in controversy, before it was occupied by the plaintiff, so far as the right to mine the same by parties without title is concerned, (and this is true of all the public mineral land of the State,) was publici juris, and [345]*345open to the appropriation of any one desiring it. By the act of occupancy, the plaintiff made it his, and manifested his intention to do so. Once his, it continues his until he manifests his intention to part with it in some manner known to the law. He may sell it, or give it to another, or transfer it in any other mode authorized by law, (thereby preserving the continuity of possession,) or he may abandon it. In doing the latter he must leave it free to the occupation of the next comer, whoever he may be, without any intention to repossess or reclaim it for himself in any event, and regardless and indifferent as to what may become of it in the future. When this is done, a vacancy in the possession is created, and the land reverts to its former condition, and becomes once more publici juris, and then, and not until then, an abandonment has taken place. There can be no abandonment except where the right abates, and ceases to exist. If it be continued in another, by Í any of the modes known to the law for the transfer of property, there has been no abandonment, for the right, first acquired by the occupancy still exists, although vested in another, and the continuity of possession remains unbroken. But the occupant cannot continue his right in another by the mere act of volition; nor is his right kept alive by a mere desire that it may become vested in a particular person. Such a volition or desire does not amount to a gift, for there can be no gift without an acceptance. If the wish or desire is expressed to the person in whose behalf it is entertained, and thereupon he occupies the land, a gift is the result, and the transfer is made complete—and not otherwise. The mere wishes and desires (if the occupant are only effectual to preserve the right in Himself, and not to transmit it to another ; and the case of Stephens v. Mansfield, so far as it can be fairly construed to go beyond the views here expressed, is not law.
From what has been said, it follows that the charge in question, so far as it instructs the jury that there can be no abandonment where jthe transaction amounts to a gift, is correct, but that it is erroneous so far as it instructs them that leaving the claim, with (a desire that a particular person may acquire [346]*346it, might be construed to be a gift. The error is in the definition of a gift, rather than in that of an abandonment.
It only remains to be seen whether the error, such as it is, could have affected the verdict of the jury to the prejudice of the defendant.
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By the Court, Sanderson, C. J.
This is an action of ejectment to recover an undivided sixteenth interest in a certain mining claim, situated in the County of Sierra. The defense mainly relied upon is abandonment. On the trial, the plaintiff offered in evidence the judgment roll in a certain action brought by him against one Donahue & West-field to recover the same interest sued for in this action, to which the defendants were not parties or privies. The judg[343]*343meat roll was admitted by the Court under the exception of the defendants. Touching the effect of the judgment roll as evidence, the Court instructed the jury as follows :
“ None of the defendants in this action were parties to the action in which Richardson was plaintiff and Donahue & West-field were defendants; and the papers in the last named action which have been introduced in evidence in this case do not tend to show that the plaintiff herein has title to the ground in dispute as against the defendants in this action; and the defendants in this action are not bound by any order, judgment, or decree rendered in said action of Richardson v. Donahue & Westfield. The jury, however, in considering the other question of abandonment, may take into consideration the fact that such suit was brought by Richardson in determining the intent of the party.”
For the purpose for which it was received by the Court, the judgment roll was clearly admissible. The fact that Richardson had, long prior to the commencement of the present action, brought another suit to recover the same ground against other parties who were then in possession and claiming it adversely to him, and had prosecuted it successfully to final judgment, was strong evidence, if not conclusive, upon the question of abandonment. The fact could not be proved more satisfactorily than by a production of the record itself. The fact that, unexplained, it might mislead the jury upon some other question involved in the case, does not affect its admissibility. In such a case it is the duty of the Court to guard against any unlawful effect, as was done in the present instance, by proper instructions to the jury; and if the Court fails to do so, it is the duty of counsel to ask instructions to that end.
The next error assigned is as to an instruction given by the Court, in the following words, viz: “ The abandonment must also be made without any desire that any particular person should acquire the property, for if such desire exist, the transaction might be construed a gift.”
This is but part of a long instruction upon the question of abandonment, given by the learned Judge of the Court below, [344]*344remarkable for its clearness of diction and soundness in principle, and to which no other objection is made. The sentence above quoted appears to be based upon the authority of Stephens v. Mansfield, 11 Cal. 365, and it is claimed by counsel for appellants that the opinion in that case, so far as it gives sanction to this definition of abandonment, is mere obiter dictum. In that case the plaintiff, Stephens, was in possession of a town lot in the City of Piacerville, part of the public domain, under a deed from another, who was in possession at the time the deed and possession of the lot was given. After remaining in possession under his deed for some months, Stephens made a verbal sale of the lot, for six hundred dollars, to one Hunter, who occupied.for about two years, and sold to the defendant, Mansfield. It was claimed by the defendant that the transaction between Stephens and Hunter amounted to an abandonment of the lot in favor of the latter; but the Court held otherwise, and that “ admitting the interest of the plaintiff in the premises such as could be divested by abandonment, there can be no such thing as abandonment in favor of a particular individual or for a consideration. Such act would be a gift or sale.”
It is true, as contended by counsel for the appellants, that so far as the case of a gift is concerned, this decision goes outside of the facts; but, upon principle, there is no difference between the act of selling and the act of giving, so far as their effect as evidence upon a question of abandonment is concerned. If the gift be complete—that is to say, if the thing I given be delivered, and accepted by the donee, a transfer is the result, which transfer as much precludes the idea of abandonment as a transfer resulting from a sale. No question of abandonment can arise where a transfer has been had by the act of two parties. To an abandonment of the character involved in this and all similar oases, there can be but one party. The mining ground in controversy, before it was occupied by the plaintiff, so far as the right to mine the same by parties without title is concerned, (and this is true of all the public mineral land of the State,) was publici juris, and [345]*345open to the appropriation of any one desiring it. By the act of occupancy, the plaintiff made it his, and manifested his intention to do so. Once his, it continues his until he manifests his intention to part with it in some manner known to the law. He may sell it, or give it to another, or transfer it in any other mode authorized by law, (thereby preserving the continuity of possession,) or he may abandon it. In doing the latter he must leave it free to the occupation of the next comer, whoever he may be, without any intention to repossess or reclaim it for himself in any event, and regardless and indifferent as to what may become of it in the future. When this is done, a vacancy in the possession is created, and the land reverts to its former condition, and becomes once more publici juris, and then, and not until then, an abandonment has taken place. There can be no abandonment except where the right abates, and ceases to exist. If it be continued in another, by Í any of the modes known to the law for the transfer of property, there has been no abandonment, for the right, first acquired by the occupancy still exists, although vested in another, and the continuity of possession remains unbroken. But the occupant cannot continue his right in another by the mere act of volition; nor is his right kept alive by a mere desire that it may become vested in a particular person. Such a volition or desire does not amount to a gift, for there can be no gift without an acceptance. If the wish or desire is expressed to the person in whose behalf it is entertained, and thereupon he occupies the land, a gift is the result, and the transfer is made complete—and not otherwise. The mere wishes and desires (if the occupant are only effectual to preserve the right in Himself, and not to transmit it to another ; and the case of Stephens v. Mansfield, so far as it can be fairly construed to go beyond the views here expressed, is not law.
From what has been said, it follows that the charge in question, so far as it instructs the jury that there can be no abandonment where jthe transaction amounts to a gift, is correct, but that it is erroneous so far as it instructs them that leaving the claim, with (a desire that a particular person may acquire [346]*346it, might be construed to be a gift. The error is in the definition of a gift, rather than in that of an abandonment.
It only remains to be seen whether the error, such as it is, could have affected the verdict of the jury to the prejudice of the defendant. The general rule is, that where an erroneous instruction has been given, the judgment must be reversed, unless it appear from the record that the appellant has not been prejudiced thereby. The testimony upon which, as the appellants claim and admit, this instruction was founded, is to the effect that while the plaintiff was absent at Frazer River, he had a correspondence with one Cody about the claim, in which Cody asked him to send him (Cody) a bill of sale of the claim, and he would “ keep up the claim for himthat thereupon, after consulting a lawyer as to whether Cody, under such circumstances, could hold the claim as against him, he sent Cody a bill of sale, but that the same was never received by Cody. It also appears from another part of the testimony, that Cody had offered to pay the assessment levied by the company upon the plaintiff’s interest, but the Secretary refused to receive the money from Cody, upon the ground that he had no authority to receive it from any one but the plaintiff. This was evidently done with a view to work a forfeiture and sale of the plaintiff’s interest under the by-laws of the company, and doubtless induced Cody’s application for the bill of sale.
How it can be claimed that this evidence tends to establish an abandonment, we are unable to perceive. In our judgment, its tendency is directly the reverse, and the Court would have been justified in refusing to give any instructions founded upon such a theory, as calculated to mislead a jury. And, had the verdict been different, we are inclined to think that the plaintiff, on appeal, would have been entitled to a reversal on that ground. Giving the instruction greater purpose than is claimed for it by appellants, and assuming that the tpharge, in effect, instructs the jury that they cannot find an abandonment from the facts disclosed in the evidence, no error, hp our judgment, has been committed. It follows that the'instruction, in view of the evidence upon which it was fouiided, and as to [347]*347the legal effect of which it was given, could not have operated to the prejudice of the appellants, and that, therefore, they are not entitled to a reversal upon that ground.
The next and last error assigned is found in the following instruction: “ If the plaintiff, however, has shown a right in himself to the property in dispute, then, however weak his title appear, he must recover if it be better than the defendant’s title.” This is but one clause in the instruction upon the question as to what title or right the plaintiff must prove in order to recover; and in determining its force and effect it must be considered in connection with that portion immediately preceding, which is as follows: “ The defendants being in actual possession of the ground in dispute, then, although they have no right there whatever, yet the plaintiff cannot, from that circumstance alone, recover in this action, for the rule of law is that he must recover, if at all, upon the strength of his own title. In other words, the plaintiff must show a right in himself, although there be none in the defendants.”
In McGarrity v. Byington, 12 Cal. 426, which was an action like the present, to recover a mining claim, an instruction, in substance the same as that to which the appellants except, was given, and came before the late Supreme Court for review, and Mr. Justice Baldwin said: “It is true, in ejectment the plaintiff must recover on the strength of his own title; but here, the charge must be taken in connection with the case. There was no outstanding title, and only a question of prior possession. The charge did not amount to much, but what there was of it was very harmless. It amounted to telling the jury to find for the plaintiff if they thought they ought to.”
It is insisted that the present case differs from that of McGarrity v. Byington, because, as is claimed, it involves an outstanding title. There may be an attempt to raise a question of that kind, but under numerous decisions of the late Supreme Court no such question can be made in an action of ejectment in which the plaintiff, as in the present case, relies solely upon prior possession, and the defendant fails to connect [348]*348himself in any manner with the outstanding title. (Bequette v. Caulfield, 4 Cal. 278; Bird v. Lisbros, 9 Cal. 1; Hubbard et al. v. Barry, 21 Cal. 321.) In this case only a question of possession is involved. The naked prior possession of the plaintiff is pitted against the naked present possession of the defendants. Strict title is not involved. The doctrine that the plaintiff must recover upon the strength of his own title is applied to cases where the strict legal title in contradistinction from a mere possession, is involved. In such a case the defendant may defeat the legal title, relied upon by the plaintiff, by showing the true legal title to be in a third person. But, where mere prior possession is relied on, and the \ defendant is 'a mere intruder, he cannot justify his act by showing, the* true title to be outstanding. Ejectments for mining claims where neither party has, strictly speaking, any legal title, but both, in strict law, are intruders upon what belongs to another, are mere contests for possession, and their solution is only embarrassed by an attempt to adhere to language only adapted to cases where the strict legal title to land is involved. Such ejectments might be more properly called actions to determine the right to mine in a certain locality. Practically, the real question involved in all such cases is, which, as against the other, has the better right to mine the land in question. Generally, the solution of this question depends in a great measure upon the rules and regulations of the mining district in which the ground is located, established by the miners themselves, and not unfrequently its just solution is prevented, rather than aided, by an adherence on the part of counsel and Courts to a phraseology hardly applicable, when the character of the right’involved is considered. That portion of the charge under consideration which is objected to by the appellants, taken in connection with what immediately precedes it, states the general propositions governing this class of cases correctly. More apt words might have been employed, but we cannot for that reason reverse the judgment. If it is deficient in any respect, it is because it does not state what, in such cases, constitutes the better right, or “title,” [349]*349as the Court terms it. If the Court had said, in connection, that the prior possession of the plaintiff, if proved to their satisfaction, was better than the subsequent possession of the defendants, there would have been no room for criticism.
All the testimony which was given upon both sides is embraced in the statement, and we are satisfied therefrom that no injustice has been committed, and that, upon the
whole case, the verdict of the jury was right, and the judg-
ment ought to stand.
Judgement affirmed.