Opinion of the Court.

open to a defendant in the Circuit Court of the United States, under any form of plea, answer or demurrer, which would have been open to him under like pleading in the courts of the State within which the Circuit Court is held. Act of June 1, 1872, c. 255, § 5; 17 Stat. 197; Rev. Stat. § 914; Chemung Canal Bank v. Lowery, 93 U. S. 72; Glenn v. Sumner, 132 U. S. 152; Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, 39, 40.

By the Nebraska Code of Civil Procedure, § 62, every civil action is commenced by petition; and by § 92, the petition must contain "the name of the court and county in which the action is brought, and the names of the parties, plaintiff and defendant," "a statement of the facts constituting the cause of action," and "a demand of the relief to which the party supposes himself entitled." By § 94, the defendant may demur to the petition for certain matters appearing on its face, among which are "that the court has no jurisdiction of the person of the defendant, or the subject of the action," and "that the petition does not state facts sufficient to constitute a cause of action;" and by § 95, the demurrer must specify the grounds of objection, or else be regarded as limited to the latter ground only. By § 96, "when any of the defects enumerated in § 94 do not appear upon the face of the petition, the objection may be taken by answer;" and in every case, by 99, the answer must contain "a general or specific denial of each material allegation of the petition controverted by the defendant," and "a statement of any new matter constituting a defence."

Under this code, as under the code of New York, upon which it was modelled, the answer takes the place of all pleas at common law, whether general or special, in abatement or to the merits; and a positive denial in the answer of "each and every allegation in the petition " puts in issue every material allegation therein, as fully as if it had been specifically and separately denied. Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 N. Y. 399; Donovan v. Fowler, 17 Nebraska, 247; Hassett v. Curtis, 20 Nebraska, 162; Maxwell's Practice (4th ed.) 127, 128; Bliss on Code Pleading (2d ed.) § 345.

VOL. CXLIV-42

Syllabus.

And by the express terms of §§ 94, 96, above cited, an objection that the court has no jurisdiction, either of the person of the defendant or of the subject of the action, may be taken by demurrer, if it appears on the face of the petition, and by answer, if it does not sc appear.

The necessary consequence is that the allegation of the citizenship of the parties, being a material allegation properly made in the petition, was put in issue by the answer, and, like other affirmative and material allegations made by the plaintiff and denied by the defendant, must be proved by the plaintiff. The record showing no proof or finding upon this essential point, on which the jurisdiction of the Circuit Court depended, the judgment must be reversed, with costs, for want of jurisdiction in the Circuit Court, and the case remanded to that court, which may, in its discretion, either dismiss the action for want of jurisdiction, or set aside the verdict and permit the plaintiff to offer evidence of the citizenship of the parties. Continental Ins. Co. v. Rhoads, 119 U. S. 237.

Judgment reversed, and case remanded to the Circuit Court for further proceedings in accordance with the opinion of this court.

KENDALL v. SAN JUAN SILVER MINING COM

PANY.

ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.

No. 294. Submitted April 13, 1892.- - Decided April 25, 1892.

Intrusion upon and location of a mining claim within the territory set apart by the treaty proclaimed November 4, 1868, for the exclusive use and occupancy of the confederated bands of Ute Indians, was forbidden thereby, and was inoperative to confer any rights upon the plaintiffs. Location of the same premises by others after extinguishment of the Indian title, and prior to relocation of the former prohibited claim, gave the right of possession.

The failure of the plaintiffs to record their location after extinguishment of such Indian title within the period prescribed by the laws of Colorado,

Statement of the Case.

and until long after the premises had been properly located by others, forbids their claim of priority based upon a wrongful entry during the existence of the Indian Reservation.

Noonan v. Caledonia Mining Co., 121 U. S. 393, cited and distinguished.

THIS action was brought in a District Court of Colorado to recover possession of a tract of mineral land, a part of what was known as the "Bear Lode." The plaintiffs claimed under a location made September 3, 1872. The land so located was at that time within the territory reserved for the use and occupancy of the Ute Indians. The Indian title was extinguished in March, 1874, and the defendant claimed under a location made August 29, 1874. The case was submitted on the pleadings and the following stipulation.

"The following stipulation is agreed upon by and between the parties, and testimony relating to the matters herein referred to is waived and may be dispensed with upon the hearing and trial.

"I. It is admitted that the 'Bear' lode was located Sept. 3rd, 1872, and was duly recorded as stated in the complaint. It is admitted by the defendant that all the averments in paragraph II of the complaint are true, excepting the averment that the Bear Lode mining claim was at the date of its location 'a part of the public domain of the United States and unoccupied & unclaimed by any person and was open to entry as mineral lands;' and excepting, further, that if the locators of the Bear lode were entitled to make any such location whatever of said premises or any part thereof they were not entitled on Sept. 3rd, 1872, or any time prior to June 15th, 1874, to locate a claim exceeding fifty (50) feet in width, and defendant therefore denies that plaintiffs are entitled to more than 50 feet in width, if they are entitled to anything.

"It is further admitted that an additional certificate of location was filed, as stated in paragraph 5 of the complaint. "It is also admitted that the plaintiffs are the proper persons to maintain this suit, and proof of chain of title and production of conveyances and records is dispensed with.

"It is further admitted that the allegations contained in paragraph 9 of plaintiffs' complaint are true.

Argument for Plaintiffs in Error.

"II. It is further admitted that on the 29th day of August, A.D. 1874, A. H. Kallenberg, W. H. Wallace and J. G. Jackson located the 'Titusville' lode, and plaintiffs admit that all the matters and things stated in paragraph 1 of second defence and answer are true, excepting the statement that said 'premises was then (Aug. 29th, 1874) a part and parcel of the unoccupied and unappropriated public domain of the United States,' which last averment plaintiffs do not admit.

"It is further admitted that since the respective locations of said 'Bear' and 'Titusville' lodes each of the claimants and their grantors have duly done and performed the annual assessment work, and neither party shall be required to introduce testimony relating to the annual expenditures required by law.

"It is further agreed that the defendant named is the proper party defendant in this action, and that no proof of its chain of title to the Titusville' lode or the production of conveyances or records showing such title shall be required."

Judgment for the defendant, which was affirmed by the Supreme Court of the State. To the latter judgment this writ of error was sued out.

Mr. E. T. Wells, Mr. R. T. McNeal and Mr. John G. Taylor for plaintiffs in error.

The only question to be determined by this court is the one presented by the stipulation of counsel filed in the District Court, i.e. where citizens, having located or attempted to locate a mining claim on an Indian reservation, and in that connection performed all the acts requisite to a legal appropriation of the ground were the same unoccupied public domain, do their continued possession after the Indian title is extinguished, and their maintenance and adoption of such prior location validate the same as against others seeking to appropriate the premises? If the answer be in the affirmative, the plaintiffs in error are entitled to hold the ground in controversy against the defendants in error. They made the Bear location when it is conceded by every one that the ground was not open to entry or

Opinion of the Court.

occupation; still they posted the discovery notice as the law required, they marked the boundary of the claim by putting substantial posts and land marks at each corner, and in the centre of the side lines as the law required; they performed the annual expenditures as the law required, and filed the location certificate with the clerk and recorder of the county in which the claim was situated as the law required.

In June, 1874, when this land was ceded to the government, and by it thrown open to exploration, use and enjoyment by its citizens, these plaintiffs were in possession of the same, working upon it and developing it and enjoying its fruits, maintaining and adopting the boundaries they had previously established in every particular, occupying it with all the indicia intact to evidence a mining location. They subsequently filed the certificate required in case of an original location. This was sufficient to entitle them to hold this ground as against the defendants. The fact of their remaining in possession, and maintaining and operating this claim, and thereby adopting all that had been done, was just as efficacious as making a new location. The defendants knew just as well as any one could know that the plaintiffs were there in the enjoyment of this property, and they have sought by straining a technicality to defeat the rights of plaintiffs in this regard. But it is not worth while to pursue any lengthy discussion of this question, as this court has already passed upon it. Noonan v. Caledonia Mining Co., 121 U. S. 393.

The facts and circumstances in the case at bar are on all fours with that case, and it is respectfully submitted that error is manifest in the ruling below.

Mr. A. T. Britton and Mr. A. B. Browne for defendant in

error.

MR. JUSTICE FIELD delivered the opinion of the court.

The defendant, a corporation 'organized and existing under the laws of Colorado, in October, 1880, applied to the proper land office in that State for a mineral patent for a lode claim