12 State vs. Moore, 12 Cal. 56.

13 Nev. Stat. 1871, p. 87.

14 State vs. Eureka, &c. Co., 8 Nev. 15. $158. Remedies and procedure-Trespass-Ejectment-Forcible entry, etc.-Injunction—Actions to quiet title. The modes of procedure herein mentioned are so designated without reference to the abolishing of forms of action by the civil codes. They do not embrace every species of litigation which may arise respecting mining property, for the reason that controversies may grow out of mining transactions as endless in variety as from any other kind of business. These are the most common and characteristic.

Trespass, or its equivalent under code procedure, will lie in favor of any one in actual or constructive possession against one entering with no better title at the date of such entry. It is only necessary for the party resorting to this remedy to prove an actual or constructive possession in himself, as against the trespasser.2 But in actions of trespass the constructive possession of the entire lode by plaintiff must yield to defendant's prior actual possession of a part thereof, and as to that part defendant would not be a trespasser.3 It has also been held that defendant in trespass may justify by showing title in a third party at date of entry, and a purchase by himself before suit.4 An action of this kind will not in general lie where plaintiff is totally ousted from the possession which is held adversely by defendant.5 But a trespass is not condoned by leaving the trespasser one month in undisturbed possession.6 A party in possession of a ditch and the water incident thereto, may maintain an action against a trespasser when the legal title sin a third person.7 Where a joint trespass was de

d on in an action against several defendants, and the trial it was proved that there were several dis

tinct trespasses committed by defendants, it was held that plaintiff was nevertheless entitled to recover.s Trespass will lie for underground encroachments on the dip of plaintiff's vein.9

Ejectment, or a civil action under the code, intended to serve the same purpose, lies to try the right of possession. In such actions, every question respecting compliance, with the conditions imposed by law upon mining claimants, may be, and perhaps have been, raised and decided. As in cases of trespass, possession is held prima facie proof of title.10 And where both parties claim under the same grantor, the regularity of the location is not in issue.11 Where the action is to recover possession of a mining claim, located on the public domain, the ordinary rule in ejectment, that plaintiff must recover on the strength of his own title, and not upon the weakness of his adversaries, does not apply, for the reason that neither claims title, and therefore he, who has the superior right, when the action is instituted, must prevail.12 But though possession be sufficient, it has been held that it only extends to the actual workings, unless a lode, which extends to the ground in dispute, be discovered, prior to the commencement of the action.13 This is the proper remedy, when the party entitled to possession has been disseized, and the wrongdoer is in adverse possession. It does not depend, as in case of trespass, upon actual or constructive possession at the time of ouster.14 It may be by one of several cotenants against the others,15 or by all the tenants in common jointly.16 And the only necessary parties defendant to the action are those whose possession, or claim of right, conflicts with that of plaintiff.17 And where, pending the suit against several defendants, plaintiff sells out to one of the defendants, the controversy as to him is ended.18 In California the action may

be for possession and for damages, or mesne profits, or distinct actions may be brought for possession and for damages.19 The holder of the legal title to the possessory right, as distinguished from the equitable owner, or person for whose use and benefit the property was purchased, has been held in Nevada the proper party plaintiff.20 Where mere possession of public land is relied upon by one who has been ousted after the lapse of a reasonable time for location and improvement, he can only recover against the person in possession by showing an actual, open, and notorious prior possession.21 But subjection of the land to the party's use is sufficient evidence of possession. Occupation in person or by agent is not absolutely necessary.22 Ejectment may be maintained for an entire claim by a purchaser, on the strength of his continued and recognized possession to the boundaries described in a defective certificate of location referred to in his deed.23 Although, as we have seen, that this, or its equivalent, is the proper remedy in case of actual disseizin,24 yet under the code of Colorado, in the possessory action, there substituted for ejectment, this element is not necessary. The defendant need not be in actual adverse possession. It is sufficient if he exercise acts of ownership over the property, or “claims title" thereto, or "some interest" therein, at the time of the commencement of the action.25 Indeed, under the provisions of that code the possession of defendant is not in issue. He can only deny plaintiff's right, set up his own, or disclaim any interest in the premises, which is equivalent to a confession of judgment, except that he would in the case of disclaimer be entitled to his costs.26 This remedy cannot be resorted to for breach of contract, as a means of enforcing its terms. tion should be for specific performance.27 Forcible entry and unlawful detainer, or forcible entry and

The

detainer, is a remedy which almost explains its own limitations, as applied to mining claims. The gist of the action is that possession was taken by force.28 In general, it does not involve either a question of title or right of possession, except the right to be restored to possession of which the party has been forcibly deprived. This remedy may lie where the plaintiff is a trespasser against the legal owner.29 Whereas a party, who has the right of entry, cannot be dispossessed by an action of ejectment, because he enters forcibly.30 As a judgment in this kind of action does not determine either the right of property or the right of possession, it constitutes no defence to an action of ejectment.31 The value of a mining claim was held immaterial to affect the question of jurisdiction in an action of this kind.32 Possession by plaintiff, and force by defendants are necessary elements of an action of this character, except where it is merely for unlawful detainer by a tenant. Hence it would not lie in favor of a prospector, who had not been in possession for several months, prior to defendant's entry, and such entry was peaceable.33 But where plaintiff's employes were sleeping in a quartz mill, which he was working, under a lease, and the product of the day's work was still in the amalgamating pans, when defendants entered and took possession and retained it against plaintiff's protest, it was held that the facts made out a case of forcible entry.34 And where the verdict in an action against several individuals and a corporation in possession was guilty, as to the individuals, and not guilty as to the corporation, it was held that the verdict established plaintiff's possession, which was incompatible with the lawful possession of the corporation, and therefore mandamus would issue to compel the sheriff to execute the writ restoring plaintiff to possession.35

Injunction is a remedy frequently and almost necessarily

resorted to in mining controversies, and except where the relief is peculiar to some of the state codes, is governed by the general rules of equity jurisprudence. This mode of relief may be resorted to to prevent the removal of ore or mineral from a mining claim, without showing other irreparable injury, for the reason that such removal is taking away the substance of the estate.36 Or to prevent a miner from extracting gold from patented land.37 So, injunction and an action for damages was held to lie to prevent a party from depositing refuse matter on plaintiff's claim in such a manner as to render it useless, and prevent plaintiffs from working and enjoying their property.38 And a miner may be enjoined from damaging trees and other improvements, on land in the lawful possession of another prior to the location for mining purposes.39 So may this extraordinary remedy be invoked to protect a water ditch from injury or destruction, and where the allegations in the bill are sufficient to warrant the relief asked, and are not denied in the answer, the judgment will be as prayed for.40 Injunction has been held to lie, to prevent interference with the right to condemn a right of way over other claims, in cases where such right of condemnation existed under the statute or local customs, or both.41 So it has been employed against the patentee of a tract as agricultural land containing a mine, restraining such patentee from the assertion of title to the mine, or interference with the owner of the mine.42 So also to restrain the working of a placer claim by aliens, though such aliens had possession prior to complainant.43 And to restrain the collection of taxes illegally levied on mining property, where the levy and seizure interrupted the working of the mine.44 Where the ordinary injunction is prayed to restrain the working of a mine, the object is to prerve the property pending the litigation to try the right