Smith v. Doe

Cope, J. delivered the opinion of the Court. Baldwin, J. and Field, C. J. concurring.

This is an action to recover possession of certain mining ground situated in Butte county. The pleadings are verified. The plaintiffs aver that they acquired from one Larkin a title in fee simple to a tract of land, containing several hundred acres, and including the mining ground in controversy; and they claim under the title thus acquired, and their actual possession of the land at the time of the entry by the defendants. They aver also that the land was occupied by them for agricultural and mining purposes, but do not state that any use was made of the particular portion now held by the defendants. The averment is general, that the whole tract was possessed and occupied for these purposes. The case was tried by the Court without a jury, and after the introduction of evidence by both parties, a judgment for the plaintiffs was rendered upon the pleadings alone. No facts are found, the Court holding that the material allegations of the complaint were not denied by the answer, and that the plaintiffs were therefore entitled to recover. “The material averments of the complaint,” says the Court, in its decision, “ are not denied by the answer. Possession and ouster being sufficient to maintain the action, I do not deem it necessary to pass upon the plaintiffs’ title derived from Larkin.” The denial of this title was regarded as sufficient, but as the plaintiffs relied upon their possession as well as their title, and as the allegation of possession, and the subsequent allegations of the complaint were not denied, it was held that the answer presented no obstacle to a recovery. The pleader evidently intended to deny specifically each of these allegations, but it is clear that he has failed to do so, and that each and all of the denials are fatally defective. But while we agree thus far with the Court below, we do not concur in the conclusion that the plaintiffs were entitled to recover upon the pleadings. The defendants set up as affirmative matter in defense of the action, that at the time they entered upon the ground in dispute, it was a part of the public domain of the United States, and contained large and valuable deposits of gold, that they entered upon and took possession of it for mining purposes, and that they have since held and used it for such purposes only. These facts being proved, the plaintiffs could not recover without showing such an [105]actual and meritorious possession and occupancy as rendered the interference of the defendants unjust and inequitable. They were not entitled to recover upon the pleadings, for the reason that the character of their possession did not appear. It is not alleged, as we have already stated, that this particular ground was ever used by them in any manner whatever. The complaint contains only the broad general allegation, that they were in possession of the land purchased of Larkin, and occupied the same for agricultural and mining purposes. This is not such a possession as can be relied upon to defeat the rights of a person who has, in good faith, located upon public mineral land for the purpose of mining.