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iff is a citizen or has declared his intention to become a citizen, as the right to enter the land may depend on the judgment to be rendered. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217: McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076: Rosenthal v. Ives, 2 Idaho, 244: 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324; Lee Doon v. Tesh, 6 Pac. Rep. 97.

288. The complaint, under section 2326, United States Revised Statutes, should allege citizenship of plaintiffs. If A. and B. are plaintiffs and only A.'s citizenship is alleged, the complaint will be dismissed on demurrer as to B. Lee Doon v. Tesh, 6 Pac. Rep. 97. 289. On an adverse suit the complaint | must set forth the citizenship of plaintiffs and their grantors. Keeler v. Trueman, 15 Colo. 143; 25 Pac. Rep. 311.

290. Where adverse complaint by two persons alleges citizenship of one only, on demurrer the suit will be dismissed as to the other plaintiff. Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621.

the application. Billings v. Aspen M. & Sm. Co., 52 Fed. Rep. 250.

296. Title of a claimant of the public mineral lands as locator of a mining claim may not be questioned on ground of alienage by any one excepting the United States, or in proceedings to obtain an United States patent (on adverse suit). Billings v. Aspen M. & Sm. Co., 10 U. S. App. 1, 322; 51 Fed. Rep. 338; Wood v. Aspen M. & Sm. Co., 36 Fed. Rep. 25.

297. An adverse complaint must allege location to have been made in accordance with mining district rules, and proof of compliance with them must be made. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304 (second trial, 17 Colo. 243; 29 Pac. Rep. 173); Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490.

298. In an action not under section 2326, United States Revised Statutes, a general allegation of ownership of the mining claim in the complaint is sufficient. Donahue v. Johnson, 9 Wash. St. 187.

299. An adverse complaint alleging the plaintiff to be the owner of the land in con

291. On an adverse suit if the citizenship of parties is not shown the omission is fatal to their right of recovery. O'Reilly v. Camp-flict by title adverse to defendant's, and that bell, 116 U. S. 418.

292. On adverse suit, proof of citizenship may consist, in case of an individual, of his own affidavit thereof, and, in case of an association of persons unincorporated, of the affidavit of their authorized agent made upon his own knowledge or upon information and belief. O'Reilly v. Campbell, 116 U. S. 418.

293. A party to an adverse suit claiming under a relocation made by a corporation must allege and prove such corporation to have been organized in some of the States or Territories of the United States, and that its members were individually qualified to make the location. Thomas v. Chisholm, 13 Colo. 105; 21 Pac. Rep. 1019.

294. In actions under section 2326, United States Revised Statutes, objections as to citizenship cannot be taken in the United States Supreme Court for the first time. O'Reilly v. Campbell, 116 U. S. 418.

defendant's claim is without right, is sufficient. Rough v. Simmons, 3 Pac. Rep. 804; Rough v. Booth, 3 Pac. Rep. 805.

300. An averment in pleading that land is vacant public land, and that a location notice was posted thereon, is not a sufficient allegation of a legal location. Jones v. Jackson, 9 Cal. 238; Hall v. Arnot, 80 Cal. 348; 22 Pac. Rep. 200.

301. An adverse complaint was held bad on demurrer wherein was set forth the location certificate and oath thereto, the oath not covering all material facts set forth in the location certificate. McCowan v. Maclay, 16 Mont. 234; 40 Pac. Rep. 602.

302. Where the plaintiff, in his petition, asserts a claim to a certain tract, and the defendant, in his answer, admits that he has applied for patent for the same tract, the conflict as to right of possession sufficiently appears. If the defendant did not wish to contest plaintiff's claim he should have disclaimed. Wolverton v. Nichols, 2 Pac. Rep. 308; 119 U. S. 485; 15 Mor. Min. Rep. 309.

295. Alienage of a mineral claimant may be set up only by the United States or by the State, except in adverse proceedings under the mining law, when it may be shown by an 304. An adverse complaint under the Neadverse claimant for the purpose of defeating | vada statutes need only set up filing of min

eral application by the defendant, and ad- | missible. Renshaw v. Switzer, 6 Mont. 464; verse ownership by the plaintiff. Rose v. 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576.

305. The sufficiency of an adverse complaint which simply alleges the plaintiff to be the owner of the ground in controversy is waived by traversing his allegation. Bushnell v. Crooke M. & Sm. Co., 11 Colo. 247; 21 Pac. Rep. 931.

306. An adverse complaint should allege all material facts as to plaintiff's ownership, that application for patent has been filed by defendant, that the suit is based on an adverse claim duly filed in the land office, and should show the conflict between the claims. Cronin v. Bear Creek G. M. Co., 32 Pac. Rep. 204: Mattingly v. Lewisohn, 8 Mont. 259; 19 Pac. Rep. 310; Anthony v. Jillson. 83 Cal. 296; 23 Pac. Rep. 419.

307. An adverse suit should be dismissed if the defendant shows that the suit was not predicated upon an adverse filed in proper time in the local land office. Marshall S. M. Co. v. Kirtley, 12 Colo. 410; 21 Pac. Rep. 492; Hunt v. Eureka Gulch M. Co., 14 Colo. 451; 24 Pac. Rep. 550.

308. A plaintiff in an adverse suit need not show possession of land in controversy, but is required to show right of possession. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

309. Though in ejectment to recover possession of a mining claim, if a defendant relies on forfeiture by plaintiff he must plead it specially (Morenhaut v. Wilson, 52 Cal. 268), this is not the rule in adverse suits, where the better title must prevail, and if neither has it neither will have judgment. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292. Contra, Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

310. In an action for the possession of a mining claim, a party relying upon a forfeiture by his adversary must specifically plead such forfeiture; and the facts constituting the same must be alleged and must be proved upon the trial. Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723.

311. Where forfeiture is relied upon to defeat the opposing party to a suit, it must be pleaded in order to render proof thereof ad

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312. To prevail in an adverse suit, a party, whether plaintiff or defendant, must show not mere occupancy of the premises in controversy, but a compliance with the law, customs and regulations. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304; Bryan v. McCaig, 10 Colo. 309; 15 Pac. Rep. 413.

313. In an adverse suit each party must prove his title, and, if no proof is submitted, the suit will simply be dismissed without judgment. Bay State S. M. Co. v. Brown, 10 Sawy. 243.

314. The question at issue in a suit based upon an adverse claim is the priority of right to purchase the fee of the land involved from the government. One who already has the fee to the land is not obliged to proceed under section 2326, United States Revised Statutes. Bennett v. Harkrader, 158 U. S. 441.

315. Each party to an adverse suit must prove his own right and title. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co.. 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

316. A plaintiff who brings an action to recover possession of a mining claim must show a good location. Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639.

317. An adverse suit is to determine who is entitled to a patent to the disputed ground. Burke v. McDonald, 2 Idaho, 310; 13 Pac. Rep. 351.

318. In an adverse suit each party must prove his right to a patent by a compliance with the statutes, State and Federal, and with miners' rules and regulations in force relative to location, in order to recover a judgment for the ground in controversy. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.)

319. Plaintiff on adverse suit cannot recover if defendant proves possession of the claim during period prescribed by the State Statutes of Limitation. 420 M. Co. v. Bullion M. Co., 9 Nev. 240; 3 Sawy. 634; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608.

320. An adverse suit brought in a State court is governed by the same rules, principles and statutes as similar actions brought under State laws (except with regard to the judgment). 420 M. Co. v. Bullion M. Co., 9

ADVERSE CLAIMS, III, 6.

Nev. 240; 3 Sawy. 634; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608; Iba v. Central Association of Wyoming, 42 Pac. Rep. 20.

321. A tenant in common may maintain an action for the recovery of a mining claim without joining his co-tenant. Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53.

322. Improvements made by trespassers upon a mining claim may not be purchased by a claimant after suit brought to determine right of possession, and then be considered as having been made originally by claimant. Little Gunnell M. Co. v. Kimber, 1 Mor. Min. Rep. 536 (Colo.).

323. Intervention in an adverse suit will not be allowed where the one seeking to in

tervene has not filed an adverse claim in the land office. Mont Blanc Cons. Gravel M. Co.

9 C. L. O. 205.

330. In Montana suits are entertained based on adverse claims filed by lode claimants against an application for a placer patent. Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Railroad Lode v. Noyes Placer, 9 L. D. 26.

331. The Colorado courts entertain adverse suits brought by lode claimants against placer applicants. Alice Placer, 4 L. D. 314.

332. A defendant in an adverse suit cannot defeat plaintiff's title by showing that a forfeiture notice given by plaintiff to coowners was insufficient. That point may be Becker v. raised only by the co-owners. Pugh, 17 Colo. 243; 29 Pac. Rep. 173. (Second trial, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304.)

333. Defendants in an adverse suit who

v. De Bour, 61 Cal. 364; 15 Mor. Min. Rep. 286; depend upon a location made by a corporation must allege the qualification of the corporation to locate the claim. Chisholm, 13 Colo. 105; 21 Pac. Rep. 1019.

324. In Utah a suit cannot be dismissed by stipulation only; an order of dismissal must follow. Shoo Fly Lode v. Mono Lode, 1 C. L. O. 135.

325. An allegation of an adverse claim shown on a proper map is good notice, and if sufficient for the basis of a suit in court the Land Department should await judgment. Robinson v. Mayger, 1 L. D. 538.

326. A suit brought under section 2326,

United States Revised Statutes, is an action to settle a controverted right to a patent from the United States for the land in controversy. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

327. When plaintiff's ownership and right of possession are put in issue by answer, he must show affirmatively a compliance with the act of Congress and local rules and regulations, and that he had thereby made a valid location. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291.

328. The pleadings of each party to an adverse suit must show title. Cronin v. Bear Creek G. M. Co., 32 Pac. Rep. 204; Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419; Cadierque v. Duran, 49 Cal. 356.

329. On an adverse suit, if the defendant shows a prima facie good location, the plaintiff must either show a better one or that defendant's lode does not extend into the ground in conflict. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

Thomas v.

334. Suit may be brought to quiet title on ground of fraud after a mineral entry has been made. Lee v. Justice M. Co., 29 Pac. Rep. 1020.

335. A defendant in an adverse suit may set up title in his answer and secure judg ment declaring him to be the owner if he prove title. Perego v. Dodge, 9 Utah, 3; 33 Pac. Rep. 221.

336. One party to an adverse suit may show the location of the other to be invalid, because based upon a discovery made within a prior, subsisting location, without connecting himself with such prior location. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

337. In adverse proceedings defendant may defeat plaintiff's claim by showing that plaintiff's location was upon land not subject to location, having been included in the exterior limits of a patent to a third person. Girard (Citing Armv. Carson, 44 Pac. Rep. 508. strong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

338. On an adverse suit either party may show the invalidity of the other's location from any cause, even by showing the discovery workings to be situated on ground cov

1

ered by a valid prior location of a third party. [ instead of a judgment is prayed in the comArmstrong v. Lower, 6 Colo. 393; 15 Mor. Min. plaint is immaterial. Becker v. Pugh, 9 Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. Rep. 458.) Harrington v. Chambers, 3 Utah, 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 94; 1 Pac. Rep. 362. 173.)

339. A variance between the adverse filed in the land office and the one on which suit is brought is not a ground for revoking the suspension of the case before the Land De- | partment. Bay State G. M. Co. v. Trevillion, 10 L. D. 194; Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391.

340. An adverse suit may be brought in proper form. If plaintiff is in possession, he should sue to quiet title. If not in possession, he should bring an action in the nature of ejectment. Wolverton v. Nichols, 2 Pac. Rep. 308; 119 U. S. 485; 15 Mor. Min. Rep. 309.

341. Under the Montana statutes, a suit based upon an adverse claim against an application for a mineral patent may be tried either as a suit at law, in which case the facts must be tried by a jury, unless the right is expressly waived, or it may be heard as an equity suit, without a jury, accordingly as the relief asked is legal or equitable. Hammer v. Garfield M. & M. Co., 130 U. S. 291.

342. An adverse complaint may be in the form of a bill to quiet title where complainants are in possession. Houtz v. Gisborn, 1 Utah, 173; 2 Mor. Min. Rep. 340.

343. An adverse suit may be maintained by one in possession. Hamilton v. Southern Nevada G. & S. M. Co., 33 Fed. Rep. 562; 13 Sawy. 113; 15 Mor. Min. Rep. 314.

344. An adverse suit may be brought on the equity side of the court, and in such case the parties may not demand a jury trial as a matter of right, that matter being governed by equity practice. Doe v. Waterloo M. Co., 43 Fed. Rep. 219.

345. An adverse suit in Colorado should be in the nature of an action of ejectment. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.)

346. In an adverse suit in nature of an action of ejectment, ouster need not be proven by plaintiff. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

347. An action under section 2326, United States Revised Statutes, is a legal, not an equitable action, and the fact that a decree

348. Suit on an adverse differs from ejectment in that it may be brought by the party in possession. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.)

349. If an adverse claimant, alleging himself to be in possession of the premises, brings his suit in the form of a bill in equity to quiet title, he cannot object to the fact that, under equity practice, the case is not tried by a jury. Perego v. Dodge, 163 U. S. 160. (Affirming Perego v. Dodge, 9 Utah, 3; 33 Pac. Rep. 221.)

350. Trial on an adverse suit may be by the court without a jury by consent of parties. Noonan v. Caledonia G. M. Co., 121 U. S.

393.

351. The act of March 3, 1881 (21 Stat. 505), does not render a trial by jury necessary in a suit based upon an adverse claim if it would not be required otherwise. Perego v. Dodge, 163 U. S. 160; S. C., 9 Utah, 3; 33 Pac. Rep. 221.

352. An adverse claimant to a placer mine, who has executed an instrument by which he agrees to convey the premises in dispute at some future time to a tenant in possession, may, under the Code of Montana, and sections 2325 and 2326, United States Revised Statutes, maintain an action in the courts of Montana to determine the right of possession of the premises in dispute. Wolverton v. Nichols, 2 Pac. Rep. 308; 119 U. S. 485; 15 Mor. Min. Rep. 309.

353. The owner of a mining claim, holding under possessory title, who has agreed to convey good and sufficient title thereto, the prospective transferee being in possession, has such an interest in the property as entitles him to file an adverse claim against an application for patent to a conflicting claim and to have a trial thereon. This right cannot be affected by State laws relating to possessory actions. (Reversing the Supreme Court of Montana.) Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep.

309.

354. Actual possession is not required to entitle a person holding under a location to bring suit under section 2326, United States

Revised Statutes. Burke v. McDonald, 2 Idaho, | Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep.
310; 13 Pac. Rep. 351; 2 Idaho, 1022; 29 Pac. 240; Burke v. McDonald, 2 Idaho, 646; 33 Pac.
Rep. 98; 2 Idaho, 646; 33 Pac. Rep. 49.
Rep. 49; Waterloo M. Co. v. Doe, 56 Fed. Rep.

355. An adverse claim may be supported by possession of the property by a tenant of the adverse claimant. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

356. An adverse claim may be prosecuted by one who has covenanted to convey the property, as he could not otherwise keep his covenant. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309. 357. In possessory actions, proof of possession of a mining claim is prima facie evidence of title. Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347; Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 381; Sears v. Taylor, 4 Colo. 38; Funk v. Sterrett, 59 Cal. 613; Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769.

358. If A. locates a claim in the name of B., and holds and works the same, the law presumes it to be done by A. as agent of B., and A. can maintain no action for the claim in his own name. Van Valkenburg v. Huff, 1 Nev. 142; 9 Mor. Min. Rep. 467.

359. The sufficiency of the adverse claim filed in the land office may not be questioned by a court on adverse suit. Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040.

360. In an action upon an adverse claim, where plaintiffs, as evidence of their title, had introduced the receiver's receipt for the entry thereof, it is admissible for the defendants to prove by decisions of the Land Department that the entry had been canceled and set aside on the protest against the issuance of patent. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep.

505.

7. Judgment.

361. In an adverse suit it should be determined whether or not either party is entitled to make entry of and secure a patent for the ground in controversy or any part thereof. Jackson v. Roby, 109 U. S. 440; Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309; Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324; Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329; Manning v. Strehlow, 11 Colo. 451; 18 Pac. Rep. 625; Thomas v. Chisholm, 13 Colo. 105; 21 Pac. Rep. 1019;

C85.

362. On adverse suit it should be determined whether or not either party has a right to the land in controversy under the law. Mere failure on the part of the plaintiff to prove his case does not relieve defendant Steel v. Gold Lead from showing his title. G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291; Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep 621; Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324; Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419; Becker v. Pugh, 17 Colo. 243; 29 Pac. Rep. 173; Manning v. Strehlow, 11 Colo. 451; 18 Pac. Rep. 625; Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49; Jackson v. Roby. 109 U. S. 440; Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

363. The successful party to an adverse suit is entitled to a patent, the object of the suit being the information of the Land Department. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

364. A verdict on an adverse suit should

show whether or not either party is entitled to a patent. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

365. A patent must follow the judgment of the court on a suit brought under the provisions of section 2326, United States Revised Statutes. The Land Department cannot look behind it. Thomas Taylor, 9 C. L. O. 92.

366. The object and purpose of an action under section 2326, United States Revised Statutes, is not only to settle the controversy as between the claimants, but for the information of the officers of the Land Department, and, to recover, either party must show by proof the right to a patent; an admission of material facts by the opposing party will not avail, but the facts must be found. Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324.

367. Neither party to an adverse suit is entitled to judgment unless he shows himself to be entitled to a patent by virtue of a com

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