absence of mining laws, the miner locating a claim holds only by actual occupancy and by such working for the development of the mine as would under all the circumstances be deemed reasonable, and his right of possession can only be continued by occupancy and use.

Rogers v. Cooney, 7, 213 (1872). A party who enters upon vacant public land, makes a survey and record, marks the boundaries of his claim, builds a cabin thereon for storing of tools, and continuously thereafter engages in digging and milling the tailings which have been deposited on the land, thereby acquires such a possessory right to the land as will enable him to maintain trespass against an intruder who enters upon the land and begins to remove such tailings. Possession taken of a mining claim without reference to mining rules is sufficient to maintain an action against one entering by no better title. Such possession need not be evidenced by actual enclosure; but if the claim be included within distinct, visible, and notorious boundaries, and if a portion of it is worked within such boundaries, it is sufficient against one entering without title.

Patchen v. Keeley, 19, 404 (1887). In trespass q. c. f. for digging and removing ore, the evidence for the plaintiff tended to show that he had discovered and located his mining claim under the laws of the United States and the Ely mining district, and was in actual possession at the date of defendants' alleged wrongful entry. Defendants did not attempt on cross-examination to inquire into the nature of plaintiff's possession or to show title in themselves. Held, nonsuit improperly granted. Plaintiff was not bound to prove discovery of a lode. As against a stranger, possession is sufficient to maintain trespass, the same possession as if the land were farming or timber land. The location of a claim need not be proved.

Utah.

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Roberts v. Wilson, 1, 292 (1876). A party claiming ground not actually possessed and worked, ground beyond the possessio pedis, - must show his rights thereto by constructive possession; and he can show such constructive possession only by distinct physical marks or monuments, or by local rules and his compliance therewith.

Blake v. Butte Min. Co., 2, 54 (1877). One who makes a valid location of a mineral lode, complying with all mining laws, local and national, obtains a vested right to such property of which he cannot be divested.

Eilers v. Boatman, 3, 159 (1881). "It is sufficient to give a right to the occupants of mining ground on the government domain which the courts will protect, to establish by evidence its appropriation by means which are a substantial compliance with the law upon that subject, and which in view of the surrounding circumstances will give notice to those who have a right to know, that the particular mining ground is subject to the dominion and control of some private claimant."

Donahue v. Johnson, 37 Pac. 322 (1894). A general

Washington. allegation of ownership of a mining claim is substantiated by proof of location and possession thereunder.

"A mining claim is a license extended by the United States to

individuals to take minerals from certain areas of public lands, the possession of which is secured to the licensee by complying with the laws and mining rules. One who locates and takes possession of and works a claim of this kind is the owner of it, although the legal title to the land may remain in the United States.

II. ACTION FOR THE POSSESSION OF MINING CLAIMS.

Mining claims being real estate, their possession is restored to the rightful owner, or preserved in him, by means of the usual actions for enforcing the title to real property. The owner out of possession may maintain ejectment for his claim, or whatever action is provided by the law of the State as a substitute therefor.1 If he is in possession, he may maintain an action to quiet the title, where such an action is recognized.

These actions are of course governed by the peculiar remedial law of each of the States, but those principles of the remedial law that are of general application are subject in this instance to certain modifications, of equally general recognition.

The rule that the plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, has been to an extent qualified and limited by reason of the character and nature of the title of the owner of a mining claim. In ejectment for such a claim, it is not a sufficient answer to show that the legal title is in the United States. If the plaintiff shows a valid possessory title, either by compliance with the statutory requirements as to location and the rules and regulations of the district, or by appropriation and actual possession, either pedis possessione, or by marking of boundaries, as described above, he may recover, unless the defendants can establish a better title. Thus the rule has been stated to be that the better title prevails, the general rule in ejectment having no application. The original position was to assume a grant from the government to the first proprietor, and to treat that as the basis of title. Mr. Justice Miller does not admit this to be an exception. to the general rule. In Reynolds v. Iron Silver Min. Co. he says: "Even when the plaintiff recovers on proof of priority of

1 See Colorado, M. A. S. 3613; New Mexico, Comp. Laws 1884, sec. 1570; Act Feb. 1, 1887, p. 204; Act Feb. 28, 1889, p. 276. Oregon holds out against this

view on the ground that the possessory interest is not real estate. Duffy v. Mix, 24 Oreg. 265, post.

possession, it is because in the absence of any title in any one else, this is evidence of a title in the plaintiff." This seems to be a sound view. That proof of prior possession is sufficient to justify a recovery against a trespasser has never been considered inconsistent with the principal rule, where the right of recovery depends on the strict legal title in the plaintiff; and there seems to be no reason why a possessory title of a higher order should not give its holder an equal advantage as against an intruder upon his possession without contravening the general rule.

It is, however, on the other hand contended in Colorado and California that adherence to language adapted only to cases where the strict legal title is involved, merely serves to embarrass the solution of the question. "Practically, the real question involved in all such cases is which, as against the other, has the better right to mine the land in question." Thus the real question involved in an action for the possession of a mining claim is not whether the plaintiff has a strict legal title, indefeasible as against the whole world, but whether he has a better right to possession than the defendant. The title which enables him to recover in one action may not be available to him in another against another adversary, or, if available, may not be sufficient. His possession is, therefore, essentially different from that of a plaintiff in ejectment, as generally regarded. This view, it will be noted, was first put forth before the United States had given a legal recognition to the title of the miner on the public domain. After the mining acts were passed, he may be said to have a legal title. It is such a title as may be enforced by a possessory action on the law side of the court.

The state of the law which had already been established by the courts of California was sanctioned by Congress in the act of Feb. 27, 1865, Rev. Stats. 910. "No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession."

It is not even necessary to deraign title from the original locator, if without doing so the plaintiff can establish a better right than the defendant, as, for instance, a possession at the time of the latter's entry. Where both parties derive title from the

original owner, the validity of his title is, of course, not in question. Where there is a recorded certificate of location, it is evidence of the date of location, the description of the claim, and of the fact that the requirements of making and recording a certificate have been complied with. The other steps necessary to a valid location must be proved by evidence outside of the certificate. Plaintiff is not obliged to negative the forfeiture of his right. That is matter of defence which must be pleaded and proved; but if plaintiff himself does show that his right was forfeited and the ground relocated by others, he will be nonsuited. And if he shows title in the defendant, he must show a title in himself derived therefrom, or that the land became. open to relocation. He may not deny the defendant's title,

which he has himself shown.

The possessory title to a mining claim, being real estate, may be made the subject of an action to quiet title. In such an action the defendant must either deny and disprove the validity of the plaintiff's location, or he must show an abandonment or forfeiture followed by the acquisition of rights in the claim by himself. The question for decision in such an action is, which party has complied with the requirements of the law and was prior in time. An action for the recovery of a mining claim raises a question of title to real property, within the meaning of an act prohibiting the submission of such questions to arbitration.1

Mining Co. v. Taylor, 100, 37 (1879). In ejectUnited States. ment for an undivided interest in a mining claim in Nevada, where both parties derive title from the original owner, the validity and regularity of his location are not in question.

Aurora Hill Con. M. Co. v. 85 M. Co., 34 Fed. 515 (1888), C. C. D. Nev. Under Rev. Stats. 910 it is not necessary for plaintiff in ejectment to establish legal title in himself. It is sufficient as a general rule to show right of immediate possession, and as against trespassers prior possession will support the action.

If the vein

Reynolds v. Iron S. M. Co., 116, 687 (1886). In an action to recover part of a lode or vein of mineral, plaintiff relied on a patent for a placer claim. Defendant asked the court to charge: The plaintiff must recover on the strength of his own title. is not conveyed to plaintiff by the placer patent under which they claim, then it makes no difference whether defendant has any title or not: the plaintiff cannot recover on the weakness of defendant's title." It was error to refuse to give this instruction.

Miller, J.: "This is the fundamental principle on which all actions

1 In addition to the following cases consult also cases under Div. I., this chapter.

of ejectment rest. Even where the plaintiff recovers on proof of priority of possession, it is because, in the absence of any title in any one else, this is evidence of a title in the plaintiff. If there is any exception to the rule that in an action to recover possession of land the plaintiff must recover on the strength of his own title, and that the defendant in possession can lawfully say until you show some title, you have no right to disturb me,' it has not been pointed out to us." Glacier Co. v. Willis, 127, 471 (1888). In ejectment for the possession of a mine in Colorado, the property claimed was described as follows: "Commencing at the base of said mountain east of Bear Creek, and running southeast and parallel with Coley tunnel through said mountain five thousand feet from the mouth or starting point of said tunnel at a stake marked and in or at the mouth of said S. G. tunnel, and two hundred and fifty feet northeast and two hundred and fifty feet southwest from said stake or tunnel to its termination." This is sufficient. It is not necessary to describe the property by its legal subdivisions or by metes and bounds. "The provisions of State statutes as to the description of the premises by metes and bounds, have been held to be only directory, and a description by name where the property is well known is often sufficient."

The complaint, after describing the land and tunnel therein, averred that the said tunnel claim so located embraces many valuable lodes or veins which have been discovered, worked, and mined by the plaintiff and its grantors." Held, this was a sufficient description of the lodes for which recovery was asked.

Hammer v. Garfield M. & M. Co., 130, 291 (1889). It being established, in an action to quiet a mining title in Montana, that the plaintiff was in quiet and undisputed possession of the premises, the validity of his location not being questioned in the pleadings, and that the boundaries of his claim were so marked on the surface as to be readily traced, this constitutes a prima facie case which can only be overcome by proof of abandonment, or forfeiture, or other divestiture, and the acquisition of a better right or title by the defendant.

Haws v. Victoria Copper M. Co., 160, 303 (1895). White, J.: "The elementary rule is that one must recover on the strength of his own, and not on the weakness of the title of his adversary; but this principle is subject to the qualification that possession alone is adequate as against a mere intruder or trespasser without even color of title, and especially so against one who has taken possession by force and violence."

Rush v. French, 1, 154 (1874). "In California and other Arizona. mining countries on the Pacific slope the general government refused for a long time to grant any title to the mineral lands, but tacitly acknowledged a license to work the mines, raising a kind of tenancy at will in the first occupier. The courts found it necessary to declare that this bona fide occupation should be sufficient to maintain an ejectment against any one not connecting himself with the paramount title, that the possessory title sufficient to maintain the action vested in the first possessor and flowed from him. The defendant was not prevented from showing that the possessory title was outstanding in another, but merely showing that the paramount title in fee was in the government was not sufficient."