"There are two kinds of possessory rights recognized in this Territory, one based on the act of Nov. 9, 1864, Comp. Laws, 536; the other resting on mere prior occupation. To maintain a right under the first, plaintiff must show a compliance with the requirement of the statutes; to succeed under the second, he must show prior possession without alienation or abandonment, down to the time of the entry complained of."

Blake v. Thorne, 16 Pac. 270 (1888).

A person from whom title to a mining claim has been derived by conveyance is estopped from asserting that the claim was not legally located.

California.

Merced Mining Co. v. Fremont, 7, 317 (1857). A party in possession of a mining claim may, under section 254 of the Practice Act, maintain an action to determine the adverse claim of a party out of possession. That section provides that “an action may be brought by any person in possession of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest."

Waring v. Crow, 11, 366 (1858). In an action of ejectment to recover an undivided interest in a mining claim, it is not necessary to make parties defendants who are in possession of such claim holding other undivided interests, and who claim no right to the interest sued for.

Smith v. Doe, 15, 100 (1860). The mere allegation of possession is not sufficient to recover in ejectment against one who has in good faith located upon public mineral lands for the purpose of mining. All land is presumed to be public land until legal title is shown to have passed from the government to private parties.

Pennsylvania Mining Co. v. Owens, 15, 135 (1860). "The defendants were, and for a long time had been, in possession of the ground, and actually engaged in mining upon it, and until a prior and paramount right was shown to exist in the plaintiffs they could rest securely upon their possession, and were not required to show anything beyond it.'

The instructions that the jury should find for the plaintiffs if they located their claim before the defendants located theirs, or if they found that defendants had never located any claim adjoining plaintiff's claim, are erroneous, and are in conflict with the rule that plaintiff must recover upon the strength of his own title.

Coryell v. Cain, 16, 567 (1860). The rule that plaintiff in ejectment must recover on strength of his own title, and not on the weakness of his adversary's, is subject to an exception in the case of mineral lands. Although the larger portion of mineral lands belong to the United States, yet defendant cannot defeat an action for mining claims, privileges, and the like, by showing the paramount title of the government. The courts, in determining controversies of this character, presume a grant from the government to the first appropriator. This presumption, though of no avail against the government, is absolute in such controversies.

Lentz v. Victor, 17, 271 (1861). When a man enters upon land in the possession of another, claiming the right to enter for mining purposes, he must justify his entry by showing: 1st, that the land is public; 2d, that it contains mines or minerals; 3d, that the person

entering upon or against a prior possession enters for the bona fide purpose of mining. In ejectment these must appear affirmatively in the answer with the requisite averments to show a right under the statute or by law to enter.

Grady v. Early, 18, 108 (1861). A description in a complaint in ejectment is sufficient wherein the ground is described as being located upon a certain river at the mouth of a certain cañon in a certain township, and as known by a certain name, the length and width thereof being stated, and the name of the claims which bound it on either side. Antoine Co. v. Ridge Co., 23, 219 (1863). In an action to recover mining claims it is not necessary for plaintiffs to deraign title from the original locators, even though that title was alleged in the complaint. It is sufficient for them to show that they were owners, and in possession at the time of the defendant's entry. They need only prove a better title to the possession of the premises than the defendant.

Richardson v. McNulty, 24, 339 (1864). In ejectment for a mining claim it is not error to charge that the plaintiff must recover on the strength of his own title. "In other words, the plaintiff must show a right in himself, although there be none in the defendants." "If the plaintiff, however, has shown a right in himself in the property in dispute, then, however weak his title appear, he must recover if it be better than the defendant's title."

"Ejectments for mining claims, where neither party has, strictly speaking, any legal title, but both, in strict law, are intruders upon what belongs to another, are mere contests for possession, and their solution is only embarrassed by an attempt to adhere to language only adapted to cases where the strict legal title to land is involved. Such ejectments might be more properly called actions to determine the right to mine in a certain locality. 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. Generally the solution of this question depends in a great measure upon the rules and regulations of the mining district in which the ground is located, established by the miners themselves, and not infrequently its just solution is prevented rather than aided by an adherence on the part of counsel and courts to a phraseology hardly applicable when the character of the right involved is considered."

Pralus v. Pacific G. & S. M. Co., 35, 30 (1868). A mere possessory title to a claim on the public domain is sufficient to authorize an action by a party in possession to determine the adverse title or claim of a party out of possession. The allegation "that by means of the false representations and pretences aforesaid of the said defendant they are greatly embarrassed in the free enjoyment, use, and disposition of their said described mining claim. . . . And that the interest of these claimants in said mining claim is greatly depreciated by reason of the possibility of title in this defendant resulting from and growing out of said false and pretended claims," is sufficient averment of injury, under the statute, resulting from such adverse claim, to sustain the action. Where the defendant in such a case in a supplemental answer set up abandonment and forfeiture by plaintiff, but fails to set up any subsequently acquired rights in the claim by himself, these matters are unavailing as a defence.

Spencer v. Winselman, 42, 479 (1871). An action for the recovery of a mining claim on public lands raises a question of title to real property in fee, and therefore cannot be submitted to arbitration under section 380 of the Practice Act.

Funk v. Sterrett, 59, 613 (1881). An action to quiet title is not like an action of ejectment, where a plaintiff must recover on the strength of his own title. The true question for decision in such an action is, which party has complied with the requirements of the law and was prior in time, not which, on the whole, had the better right.

Belcher Consolidated G. M. Co. v. Deferrari, 62, 160 (1882). In ejectment for a mining claim, plaintiffs having shown title by deed from defendants and others, defendants are estopped from denying that they were owners at that time. They can only defeat this title by showing a subsequently acquired title in themselves.

Murphy v. Cobb, 5, 281 (1880). Where a plaintiff in an Colorado. action to recover mining ground, by his own testimony

shows that the ground belonged to the defendant, and fails to show that it was open to relocation, evidence of such location by plaintiff and his grantors is inadmissible.

Miller v. Taylor, 6, 41 (1881). In an action for restitution of mining property under sec. 10, chap. 48, Gen. Laws, the plaintiffs alleged that they had been ousted of their possession before the expiration of the time within which they had to comply with the statutory requirement of marking and recording their claims, and that they were prevented by the threats of the defendants from complying with these requirements. A demurrer, on the ground that the plaintiffs in their complaint did not show a compliance with the statutory requirements, will be overruled. One who prevents a thing being done may not avail himself of the non-performance.

Lebanon M. Co. of N. Y. v. Consolidated Republican M. Co., 6, 371 (1882). Proof of actual possession of mining claim under color of title at the time of defendant's entry is enough upon which to recover in ejectment. The strictly legal title being in the government is not involved. The doctrine that plaintiff must recover on the strength of his own title, and not on the weakness of his adversary's, does not apply.

Strepey v. Stark, 7, 614 (1884). The rule in ejectment that plaintiff must recover upon the strength of his own title, and not on the weakness of his adversary's, does not apply in possessory actions for mining claims. In these the better title prevails.

Four things are necessary in order to perfect the location: (1) Sinking of a discovery shaft; (2) posting a discovery notice; (3) marking the surface boundaries; (4) making and recording a location certificate. To establish a right of possession under an alleged location, the first three of these must be proved by evidence outside of the certificate. The certificate when recorded is evidence of the date of the location, the description of the premises, and of the compliance with the statutory requirements of making and recording the same.

Montana.

Herbert v. King, 1, 475 (1872). In ejectment for a mining claim, plaintiff's evidence showing that his right to the ground was forfeited, and the ground located by third parties, a non

suit was properly entered though defendants were shown to be in possession. It is necessary that plaintiff shows either title in himself or a right to immediate possession.

Renshaw v. Switzer, 6, 464 (1887). In ejectment for a mining claim, defendant is not entitled to a nonsuit on the ground that plaintiff did not show that he had done the necessary work to represent the claim. Having shown a valid location, plaintiff's title was good, and he was entitled to a possession unless the defendant defeated such title. The failure to do the necessary work would work a forfeiture, but this must be pleaded and proved by the defendant.

Nevada.

Abbott v. Primeaux, 16, 361 (1882). Plaintiff brought ejectment for a town lot, claiming title under a patent issued for a mining claim. A nonsuit was granted on the ground that the land in dispute was the surface of the mining claim, and it was not shown that plaintiff required or had any use for the same in working his claim. Held, error. The patent made out a prima facie case. The validity of the above objection depended upon the nature of defendant's claim of title. Wills v. Blain, 4, 378 (1889). In an action to New Mexico. recover possession of a mining claim, where the only

contention is as to the performance of the required annual work, it is sufficient to instruct the jury that plaintiff must prove some title and right to possession of the claim by a preponderance of the evidence, and that such right must be better than that of defendant.

Duffy v. Mix, 24, 265 (1893). The rights of one who has Oregon. located a mining claim under the United States statutes are possessory merely, and do not confer title to real estate. "This possessory right is declared by the statutes and decisions of some of the States to be real estate title, and as such passes to the heir, and is subject to seizure and sale. In this State we have no statute declaring such possessory rights or rights of possession to a mining claim to be real estate title."1 An action to recover such possessory right may therefore be maintained in a justice's court under Hill's Code, secs. 2175-2183.

It seems that ejectment will not lie for a mining claim in Oregon.

III. CONVEYANCE OF MINING CLAIMS BEFORE PATENT. STATUTE OF FRAUDS.

As was stated above, mining claims are property, and like other property they may be alienated in the various ways in which property may be alienated. The possessory title passes to the grantee, not by operation of law, but by virtue of the conveyance. The view originally taken in California was that as this property rested in possession, it might be conveyed by parol and delivery of possession. A written conveyance was unnecessary where 1 See, however, Hill's Code 1892, secs. 3830, 3835.

such actual transfer of possession took place, though of course it was equally effectual. The possessory title being a right or license to use the land, and not an interest in the land, was not within the Statute of Frauds. Thus a locator on leaving his claim. might designate a successor, who, upon taking possession, acquired a valid title to the claim. The designation acted as a gift (see page 295). Where, however, the grantor was not in actual possession, and did not deliver actual possession to the grantee, a written conveyance was necessary. The rule might, however, be negatived by a legislative provision requiring a written conveyance of mining claims. This was done in California by the act of 1860, which provides for the conveyance of claims by bills of sale or instruments in writing not under seal. This act excluded parol conveyances. Even in the absence of statutes, a written conveyance might be required by usage or custom, in which case parol conveyance would be insufficient.

This view of the nature of the possessory title and the manner of its transfer no longer prevails in California or elsewhere, and though it has the sanction of the dictum of Lamar, J., in Mining Co. v. Taylor, infra, and of the case of Omar v. Soper, 11 Colo. 380, it is believed to be no longer the law, and a parol conveyance is now insufficient to pass the title to a mining claim. In Montana and Nevada, and recently in California, a mining claim is held to be real estate, and as such to be within the provisions of the Statute of Frauds. This, it seems, is likewise the view taken in Utah.

The record book of a mining district is not evidence of a transfer, but if it has been put in evidence without objection, it makes out a prima facie case, and puts the defendant upon proof that plaintiff's title was divested.

The location of a claim by one acting as agent for an absent locator is not a conveyance, and is not within the Statute of Frauds, nor is an agreement of mining partnership.

The ordinary form of conveyance is sufficient and proper for the transfer of mining claims, when in writing. If the statute requires a bill of sale, no prescribed form of language is requisite. The mining deed differs from the ordinary deed only in the description of the property and its appurtenances. If a mining claim has a known descriptive name, it may be described in a deed by that name, and parol evidence is admissible to explain