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BRANDT v. WHEATON.

(52 California, 430. Supreme Court, 1877.)

Bill in Equity-Verdict. In a suit under $ 738 of the Code of Civil Pro

cedure, the complaint is to be treated as bill in equity, and the general

verdict of a jury will be disregarded. Presumption arising from possession. As against a mere trespasser, one

in possession of a portion of public land will be presumed to be the

owner.

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Jurisdiction. But the person in possession will not be entitled to a decree,

which will prohibit a third person from obtaining title by purchase from the government, or which decides in advance that he has no right on which to base his application. The respective claims should be asserted in the appropriate tribunals.

The complaint, which was filed September 30th, 1875, averred that the plaintiff was, and had been since 1864, the owner and possessor of a mining claim in the Michigan Bluff District, County of Piacer, lying in Buchanan Gulch, and that the defendant wrongfully claimed to own it, and had applied to the United States, in the Land Office at Sacramento, to obtain a patent for it, and that his application was now pending, and that the claiin was a placer-mining claim, and a part of the public mineral lands of the United States. The plaintiff asked for judgment, decreeing that he was the owner and possessor of the claim, and that the defendant had no title to it, and that he be perpetually enjoined from asserting any title to it. There was no allegation that the plaintiff had filed an adverse claiın in the land office. The case was tried by a jury, and a general verdict rendered for the plaintiff. No special issues were submitted. Upon this verdict the conrt rendered judgment for the plaintiff, as prayed for. The defendant appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion.

M. A. WHEATON, in pro per.

HALE & CRAIG, for the respondent.

By the Court :

In the briefs of appellant and respondent this is called “an action to quiet title.” It is a suit under Sec. 738 of the Code of Civil Procedure, and the complaint is to be treated as a bill in equity. The general verdict of the jury, therefore, is to be disregarded. If this were the only question to be considered, the cause would be remanded to the court below to find the facts. But the case made by plaintiff simply shows that he is in possession.

As against a mere trespasser, one in possession of a portion of public land will be presumed to be the owner, notwithstanding the circumstance that the court has judicial notice that he is not the owner, but that the government is. This rule has been maintained from motives of public policy, and to secure the quiet enjoyment of possessions which are intrusions upon the United States alone.

But it would be carrying a presumption against the fact to an absurdity to say that one in possession who has not acquired the fee from the government-the true owner-is entitled to a decree, the practical effect of which is to prohibit a third person from obtaining title by purchase, or by appropriate proceedings under statutes of the United States. The respective claims of conflicting claimants may be asserted in the appropriate tribunals established by the Government for that purpose. A decree here in favor of plaintiff would have no effect by way of inducement to the officers of the Land Department of the United States to issue the patent to plaintiff ; and if we had the power, it would be an ill advised employment of equity jurisdiction to prevent the defendant from proceeding with his application, or, worse still, to decide in advance that he had no right on which to base his application.

Judgment and order reversed, and cause remanded for a new trial.

SHAFER V. CONSTANS.

(3 Montana, 369. Supreme Court, 1879.) Possession-Pleading—Burden of proof as to mineral character of

land. S. had been in possession of the land in dispute, claiming it as a mill-site, for ten years before this suit, and several years before C. located the same, but had failed to designate the boundaries by any monuments. The gulch had been returned to the U. S. Land Office as mineral land, and had been worked as such, both above and below the disputed premises, but there was no other testimony tending to show that the tract in controversy contained any minerals. C. applied for patent, and was adversed by S. Held, that S. had the right of possession to the lands in controversy, and was not called upon to prove that they were non-mineral. Held, that C. having failed to allege that he had complied with the mining rules of the district where the land

was situate, was not entitled to a patent. Mill-site against placer. An adverse claim may be filed and maintained

by the claimant of a mill-site against an application for patent on a mining claim.

E. W. & J. K. TOOLE, for appellant, who was defendant below.

CHUMASERO & CHADWICK, for respondent, who was plaintiff below.

Appeal from the District Court, Lewis and Clarke County, Third Judicial District.

The facts are stated in the opinion.

BLAKE, J.

The respondent brings this action to determine his right to the possession of a certain tract of the public domain of the

United States. The issues were tried by the court without a jury, and the following facts appear in the find

ings:

Tlae respondent had enjoyed the possession of the land for the period of ten years before the commencement of this action, and had and used an arastra thereon. Oro Fino gulch was discovered and portions thereof were mined for the precious metals before the occupancy of the respondent. It was impossible to decide whether the channel of this gulch was within or outside of the land in dispute, although the arastra appeared to be in the bed of the gulch. The appellants located a part of the gulch, including the premises of the respondent, several years after the occupation thereof by the respondent, but before the mill-site had been designated by any marks or monuments. The gulch was returned to the United States land office as mineral land, and has been mined to one point one thousand feet above, and also to another point two thousand feet below the arastra. The intermediate space of three thousand feet has not been mined or worked on account of the obstacles in finding the bed rock. There was no other testimony tending to show that the tract in controversy contained any minerals.

The court rendered judgınent that the respondent was entitled, as against the appellants, to the possession of the mill-site.

It appears from the pleadings that the appellants filed their application in the United States land office in Helena, in this Territory, to enter a parcel of placer mineral land in said gulch. The respondent filed his adverse claim to the part, which has been mentioned, and then commenced this action.

The appellant contends that the only right of the respondent to the premises is under his claim to a mill-site, which can not be maintained on mineral land; and that therefore the respondent must prove that the same is non-mineral. We must determine, in the first place, whether the respondent can be treated as an adverse claimant according to the statutes of the United States respecting placer mining claims.

In the 420 M. Co. v. Bullion M. Co., 3 Saw. 634, Mr. Justice SAWYER says: “The party who at the time can maintain his right to the claim in the courts of the country as against any person but the United States, under the local laws, customs, rules and regulations, is the party upon whom Congress intended to confer the right to purchase, no matter how that right originated, if, under such laws and customs and decisions of the courts, he has the present right. And this is simply a right to purchase--a privilege given to the party, of which he may avail himself or not, exactly like a pre-emption law, and founded upon similar reasons and policy.” In Chapman v. Toy Long, 4 Saw. 28, it is held that the locator of a

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mining claim “need not take any steps to purchase the land or obtain a patent for it.”

The assistant attorney-general of the United States, in his opinion in Becker v. Central City, a subject of controversy arising in Colorado, says: “ Possession is one of the elements of title, and is made by this statute a necessary subject of inquiry. If found to be in any one other than the claimant, it is a bar to the issuance of a patent, at least until adjudged wrongful in the manner pointed out in the sixth section.

In the present case the application for a patent includes the surface and soil, as well as the mineral. I am of the opinion that the persons in possession of this surface are adverse claimants, and have an adverse claim within the meaning of this law, and are entitled to be heard in the local courts before patent is issued.” Weeks on Mineral Lands, & 148.

Under the laws of the United States the proprietor of a lode may obtain a patent to non-mineral land, which is used for mining or milling purposes; and the owner of a quartz mill or reduction works, who does not possess a mine in connection therewith, “may also receive a patent for his millsite” in the same manner as said proprietor: U.S. Rev. Sts. $ 2337. The adverse claimant is required to show " tiie nature, boundaries, and extent of such adverse claim," and "commence proceedings in a court of competent jurisdiction, to deterinine the question of the right of possession.” U. S. Rev. Sts. S 2326.

The respondent is not seeking to obtain a patent to his mill-site from the United States, and can not be compelled to be a purchaser thereof. He has stated the “nature” of his adverse claim, and we are satisfied that he had the “right of possession" to the lands in controversy upon the trial in the court below. In this inquiry, the character of the premises does not affect the rights of the respondent, and he was not called upon to prove that they were non-mineral.

The appellants do not allege in their answer that they have coinplied with the mining rules, customs and regulations, of the mining district in which Oro Fino gulch is situate. They are not entitled to receive a patent to the tract, which has been claimed by then, if this fact is not established. It has

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