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been adjudged correctly that the respondent has the right to occupy the land on which his arastra is situated, as against any title which has been asserted by the appellants.

Judgment. affirmed.

THE FRANK G. & S. MINING Co. v. THE LARIMER M.

& S. Co.

(1 Colorado Law Reporter, 495. U. S. Circuit Court, 1881.) .

Jurisdiction of U.S. Courts. An action brought in support of an adverse

claim, filed against the issuing of a patent to mineral land, is a case which involves the construction of acts of Congress, and is therefore removable into the federal court, under act of March 3, 1875.

WELLS, Smith and Macon, for plaintiff.

T. A. GREEN, for defendant.

The action was ejectment, bronght under section 2326 of the Revised Statutes of the United States, in support of an adverse claim, filed against the application of the Larimer Company, for patent to a mining claim.

It had been brought in Lake County District Court, and was removed upon petition into the Circuit Court of the United States.

The following opinion was delivered upon motion to remand.

MILLER, A. J.

The defendant made application for patent for a mining claim in Lake county, to resist which plaintiff filed in the land office an adverse claim, and thereupon filed complaint in the district court for Lake county.

Defendant, after answer, filed a petition for a removal of the cause to the Circuit Court of the United States, on the ground that the subject-matter of the action arises under the laws of the United States, and the case was removed accordingly. This hearing is of a motion to remand the cause to the State

a court for trial. The act of Congress of March 3, 1875, provides that the “United States Circuit Courts shall have original jurisdiction of the subject-inatter of all cases arising under the constitution and laws of the United States." It is impossible that such an action as this can be determined without reference to, and involving a construction of the mining laws of Congress. The questions involved necessarily arise under the laws of the United States; and hence, this court has original jurisdiction of the subject-matter of the action, and the case was properly removable. The motion to remand must be denied.

1. Effect of failure to file adverse claim: Eureka Co. v. Richmond Co., 4 Saw. 302, Post LODE; 420 M. Co. v. Bullion Co., 3 Saw. 659, Post PatENT; Chapman v. Toy Long, 4 Saw. 28, Post Aliens.

2. Suit to sustain, under Utah Code: Houtz v. Gisborn, 1 Utah, 173, Post

AIM. 3. Application for patent is a summons to all persons to file adverse claim: Wolfley v. Lebanon Co., 4 Colo. 117, Post Side LINES.

4. A patent issued for a mining location, while an adverse claim is pending against such application, is void: Rose v. Richmond Co., 2 Colo. Law, Rep. 7 (a nisi prius case from Nevada).

5. An adverse claim may be verified by agent in certain cases; and certain affidavits allowed to be made out of the land district: Amendment of R. S. $ 2326. Approved April 26, 1882.

WILSON v. HENRY ET AL.

(35 Wisconsin, 241. Supreme Court, 1874.)

a

Statute of limitations-Strict construction. Evidence of adverse poss

ession is always to be strictly construed, and every presumption is to be made in favor of the true owner. The party whose title is to be destroyed or remedy barred, may properly stand on the letter of the stat

ute, and insist upon a strict compliance with its conditions. Tax title defeated by. Between the tax title claimant and the original

owner, the latter will be regarded as the true owner, notwithstanding any technical defects which may be found to his title, and he may bar the right asserted by the tax title claimant by showing an actual occupation and use of the premises under his title for any considerable por

tion of the three years required to perfi ct a title. Mining during the mining season. In an action brought by one claiming

under a tax deed reco ded in 1858, to bar the title of the original owner, defendant offered to show that from 1858 to the commencement of the action during the mining season of each year, from two to ten miners had constantly worked and mined for lead ore upon said land, they being usually farmers, working their farms during the summer and mining during the winter, and working the land under verbal leases from defendants or their agent to whom they paid rent; also, that a custom exists where this land is situate, making it obligatory upon the land owner to hold mineral diggings for the miner operating them during the summer season, though the ininer does not work during such suimer season; also, that sa d mining “was mostly near the surface and in open cuts, so as to be plainly visible to all," etc. Held, that it was error to reject this evidence, as the facts stated would have shown the action to be barred by the statute.

Appeal from the Circuit Court of Iowa County.

Action for an alleged trespass committed by defendants October 21, 1871, upon land of which plaintiff claimed right of possession, with actual possession and title in fee simple. The answer of the defendant Henry denied plaintiff's title, and charged that one Stephenson was the owner in fee simple and entitled to the possession; that Stephenson had been the owner and in actual possession of the land since 1857, and the parties from whom he derived title had been the owners and in possession since 1847; that IIenry had acted as agent for Stephenson for many years in collecting rents from and paying taxes on the land, and as such agent had been in

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actual possession since 1856; that the tax deed under which plaintiff claimed title to the land was dated February 3, 1868, and executed to one Moffett, but that Moffett never obtained or attempted to obtain possession of the land under the deed, and that more than three years had expired from the date of the tax deed before the action was commenced; wheretore defendant claimed the benefit of the statute of limitations against such tax deed. Plaintiff replied alleging that the tax deed to Moffett was duly recorded February 3d, 1868, and that Moffett on the 15th of April, 1868, conveyed to plaintiff; that at the date of recording the tax deed the lands were unoccupied and unimproved; that neither Stephenson nor Henry had been in the actual, continued adverse possession of the premises for three years next succeeding the date of the tax deed; and that they had not paid the taxes for each of the three years since said date and had not held the premises adversely to plaintiff.

Upon the trial, plaintiff put in evidence the tax deed to Moffett, and Moffett's deed to himself, and testified that prior to October, 1871, the land in question had never been inclosed nor had it been actually occupied or worked in any manner, except that considerable mining had been done upon it; and that in 1870, he gave written leases to one Holmes and one Hildreth, “ giving them permission to dig on the land,” and in the winter of 1871–2, one West paid him rent for the use of the land in mining. Defendant put in evidence a patent of the land, from the United States to one Tuttle, and certain mesne conveyances terminating in a deed to one Collier, together with the will of Collier, and a deed of the land from his executors to Stephenson in 1857.

For certain irregularities, these instructions were ruled out as direct evidence of the transmission of the title from Tuttle to Stephenson, but were allowed to be read in connection with any evidence of possession by Stephenson, under claim of title founded upon such instruments, to establish his title by adverse possession. The defendants admitted that the land had never been fenced or cultivated; but they offered to prove that Henry had been the agent of Stephenson since 1858, to look after the land, and that as such agent, he was empowered by Stephenson to enter upon the land; that in 1858, he went upon, surveyed and it, and since that time had gone upon it

.

at least four times a year until the present time; and that for two or three years after 1858, he sold the grass growing along a stream running through one end of the land. They also offered to show constant possession of the land since 1858 by miners during the mining season of each year, under verbal leases from Henry, as Stephenson's agent. Their offer is set forth more fully in the opinion.

The evidence so offered was excluded as irrelevant and incompetent. Verdict and judgment for plaintiff, and defendants appealed.

HENRY Smith and P. A. Orton, for appellants.
ALEXANDER Wilson, respondent per se.

Dixon, C. J. The court sees no reason to doubt, qualify, or disturb the rules laid down in Sydnor v. Palmer,* 29 Wis. 226, 251-3, for the construction of statutes of limitation, nor to question the correctness of the construction which was given to the statute there under consideration. To determine precisely what was there decided, and the application and effect of the decision in a case like the present, it is necessary that the language of the opinion should be carefully read and observed. The language is: “Evidence of adverse possession is always to be strictly construed, and every presumption is to be made in favor of the true owner.” Again it is said: : “ The party whose title is to be destroyed, or remedy barred, may properly stand on the letter of the statute, and insist upon a strict compliance with its conditions."

It should also be borne in mind that the party seeking to take advantage of the statute in that case, and against whom the rules of strict construction were held, was the claimant under the tax deeds. In the application of the rules, the owner of the land at the time the taxes were assessed, and whose title was to be destroyed or remedy barred by operation of the statute, and of the alleged adverse possession, was regarded as the true owner; and it was in his favor and in support of his title that the strict construction was given. The construction favored the title of the original owner, who

* NOTE.-Sydnor v. Palmer is nevertheless completely overthrown as an anthority upon the question of adverse possession by mining, both by this opinion and by the judgment in this same case on second appeal. 'Post p. 157.

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