Harris v. Kellogg

Harrison, J. The plaintiffs brought this action to recover from the defendants the possession of a mining claim, and to restrain them from committing waste [487]thereon. The cause was tried by the court, and findings were made sustaining the allegations of the complaint, and judgment was rendered in favor of the plaintiffs. Upon motion of the defendants a new trial was afterward granted, and from this order the plaintiffs have appealed.

In the statement upon motion for a new trial the only errors assigned are the insufficiency of the evidence to justify the decision, and the particular specifications of this insufficiency are:

1. The evidence fails to show that plaintiffs or any of them were or are citizens of the United States, or had bona fide declared their intention to become such citizens, or that they are or were ever at any time qualified or entitled to locate any public land as a mining claim.

2. The evidence shows that the plaintiffs have not filed or caused to be filed in the office of the county recorder of Madera county, or with the recorder of Fresno mining district, an affidavit or statement showing the amount or value of work done on the claim in controversy at any time.

The respondents urge upon this appeal, that, in order to enable the plaintiffs to show title to the mining ground, it was necessary for them to aver in their complaint, as well as to prove, that they were citizens of the United States, or had declared their intention to become such, at the time of making their location. In support of this latter proposition they have cited Iba v. Central Assn. (Wyo. 1895), 40 Pac. Rep. 527; on rehearing, 42 Pac. Rep. 20; Rosenthal v. Ives, 2 Idaho, 243; North Noonday Min. Co. v. Orient Min. Co., 1 Fed. Rep. 522; Le Doon v. Tesh, 68 Cal. 43; Golden Fleece etc. Co. v. Cable etc. Min. Co., 12 Nev. 312. These were cases, however, brought by virtue of the provisions of section 2326 of the Revised Statutes of the United States, under which, after an application has been made for a patent to mineral lands, an adverse claimant is required to commence proceedings to determine the question between him and the applicant, of the right of possession [488]