An action in ejectment may be maintained in a State court based on an adverse claim filed under this section. Wenner v. McNulty, 7 Mont. 30, p. 32. See Upton v. Larkin, 7 Mont. 449, p. 451. Flavin v. Mattingly, 8 Mont. 242, p. 244. An action in the State court under this section may be in ejectment or to quiet title according to the possession of the parties at the time suit is commenced. Murray v. Polglase, 23 Mont. 401, p. 413. The statute of Montana makes it immaterial which party is in possession in an action brought under this section, and a State court has jurisdiction if it appears from the pleadings that an application for patent has been made and an adverse claim filed. Hopkins v. Butte Copper Co., 29 Mont. 390, p. 394. Mares v. Dillon, 30 Mont. 117, p. 141. This section as well as the act of May 10, 1872 (17 Stat. 91), supplemented by the statute of Nevada passed February 10, 1873, gives the district courts of the State of Nevada jurisdiction to determine the right of possession as between adverse claimants; and any such claimant whether in or out of possession must commence his action to determine the right within 30 days after filing his adverse claim; but he is not required to prove his own right of possession affirmatively and also to disprove the claim of his adversary by negative testimony. Golden Fleece Gold, etc., Min. Co. v. Cable Consol. Gold, etc., Min. Co., 12 Nev. 312, p. 320. Rose v. Richmond Min. Co., 17 Nev. 25, p. 52. See Scorpion Silver Min. Co. v. Marsano, 10 Nev. 370, p. 379. When relief is afforded by the courts of a State, the rules of pleading and the methods of procedure of the State must be followed, yet the matters settled ought to be under the provisions of this section, or the relief will be wholly inadequate and the determination would be of no advantage to either the litigant or the Government. Iba v. Central Association, etc., 5 Wyo. 355, p. 363. In an action for the possession of a mining claim under this section the parties are entitled to a trial by jury. g. POWER OF CONGRESS TO REGULATE STATE COURT PROCEEDINGS. Congress while authorizing a suit upon an adverse claim has no power to regulate the practice or to prescribe the form of the action in the State court. Upton v. Santa Rita Min. Co., 14 N. Mex. 96, p. 108. See Altoona Quicksilver Min. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100, p. 101. The jurisdiction of a State court to try and dispose of questions arising on an adverse claim is not derived from the act of Congress, and Congress can not prescribe the time within which an action may be brought to determine an adverse claim to mineral lands. Bernard v. Parmelee, 6 Cal. App. 537, p. 540. A State court does not concern itself with the question as to whether or not its judgment can be used in the Land Office. Nome-Sinook Co. v. Simpson, 1 Alaska 578, p. 590. Quigley v. Gillett, 101 Cal. 462. Altoona Quicksilver Min. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100. See Four Hundred Twenty Min. Co. v. Bullion Min. Co., 9 Fed. Cas. 592. Congress can not impose upon the State courts the duty and labor of determining for the Land Department who is entitled as between conflicting claimants to purchase from the Government; and the question of the right of possession to a mining claim may be determined by a State court, by a proceeding authorized by a State law and not by reason of the United States statute. Gruwell v. Rocca, 141 Cal. 417, p. 419. The laws of California authorize superior courts to determine adverse claims to land when the parties bring the issue before the court in a proper manner. Altoona Quicksilver Min. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100. Gruwell v. Rocca, 141 Cal. 417, p. 419. h. EQUITY JURISDICTION. A court of equity is a court of competent jurisdiction within the meaning of this section in which a suit in support of an adverse claim to an application for a patent for mining ground may be maintained where it appears that neither of the parties is in possession, but the jurisdiction of a Federal court is dependent in such case upon diversity of citizenship. Willitt v. Baker, 133 Fed. 937, p. 943. See Shoshone Min. Co. v. Rutter, 87 Fed. 801. Larned v. Jenkins, 109 Fed. 100. United States Min. Co. v. Lawson, 115 Fed. 1005, p. 1006. A proceeding under this section to determine the right of possession to a mining claim, though purely statutory, may be brought and maintained in a court of equity. Doe v. Waterloo Min. Co., 43 Fed. 219, p. 222. Shoshone Min. Co. v. Rutter, 87 Fed. 801, p. 804. Tonopah Fraction Min. Co. v. Douglas, 123 Fed. 936, p. 939. It is now a common practice in cases where irremedial mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extraction of ores from a mine, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. Erhardt v. Boaro, 113 U. S. 527, p. 539. Old Telegraph Min. Co. v. Central Smelting Co., 1 Utah 331. Equity will enjoin a trespass on a mining claim, but it will not under the guise of an injunction try title to such a claim where the remedy is legal. Chapman v. Toy Long, 8 Fed. Cas. 497, 4 Sawy. 28, p. 33. i. WAIVER OF OBJECTIONS TO JURISDICTION. Where a defendant to a suit on an adverse claim appears and proceeds to try without raising the objection that the suit was not commenced in time, he thereby waives it and can not insist on the objection upon appeal. Richmond Min. Co. v. Rose, 114 U. S. 576, p. 583. Where an adverse claimant has filed his complaint in the proper court within 30 days and the parties have gone to trial, the defendants can not be permitted to raise the question of the lack of jurisdiction in the court because of the nonpayment of fees within the 30-day period, after pleading to the merits, as such an objection is purely a matter of State concern and the decision of the State court thereon is controlling. Richmond Min. Co. v. Rose, 114 U. S. 576, p. 582. See Gypsum Placer Claims, In re, 37 L. D. 484, p. 488. 7. QUESTIONS FOR DETERMINATION BY COURTS. a. POSSESSORY RIGHTS ONLY DETERMINED. The subject of judicial determination is the disputed possessory right to ground embraced in conflicts in different claims only. Grand Canyon R. Co. v. Cameron, 35 L. D. 495, p. 496. See Richmond Min. Co. v. Rose, 114 U. S. 576, p. 584. Iron Silver Min. Co. v. Campbell, 135 U. S. 286, p. 300. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 Powell v. Ferguson, 23 L. D. 173. Snyder v. Waller, 25 L. D. 7. Wright v. Town of Hartville, 13 Wyo. 497. A suit by an adverse claimant determines only the right of possession between the rival claimants. Higgins v. John Gold Min. Co., 14 C. L. O. 238. See Branagan v. Dulaney, 2 L. D. 744, p. 750. The determination of the right of possession as between claimants, is, upon the filing of such adverse claims, referred to a court of competent jurisdiction in aid of the Land Office, but the form of the action is not provided for by the statute. Gwillim v. Donnellan, 115 U. S. 45, p. 50. Perego v. Dodge, 163 U. S. 160, p. 165. Woods v. Holden, 27 L. D. 375 (on review). North Star Lode, In re, 28 L. D. 41, p. 43. Cain v. Addenda Min. Co., 29 L. D. 62, p. 64. Gillis v. Downey, 29 L. D. 83, p. 85. Conway, In re, 29 L. D. 388, p. 390. Ryan v. Granite Hill Min. & Dev. Co., 29 L. D. 522, p. 524. Ritter, In re, 37 L. D. 715, p. 717. Burke v. McDonald, 2 Idaho (310, p. 313) 339. Mares v. Dillon, 30 Mont. 117, p. 139. Deeney v. Mineral Creek Mill. Co., 11 N. Mex. 279, p. 288. Iba v. Central Association, etc., 5 Wyo. 355, p. 360. The object of a suit on an adverse claim is to establish the right to the possession of the premises in controversy and to stay proceedings upon an application for a patent until such right is adjudicated. Providence Gold Min. Co. v. Burke, 6 Ariz. 323, p. 331. This section authorizes an adverse claimant to file his claim and bring suit in a proper court, and relegates to such court the jurisdiction to determine the right of possession between the adverse claimants. Duffield v. San Francisco Chemical Co., 205 Fed. 480, p. 482. An action pursuant to an adverse claim has for one of its objects the determination whether either party has divested the United States of the possessory title to the mining claim in dispute. Strasburger v. Beecher, 44 Fed. 209, p. 214. See Jackson v. Roby, 109 U. S. 440. The intention is that suits upon adverse claims shall be directed to establishing the equitable rights of possession between the parties and the right to apply for a patent for the premises, and that the Government is not estopped by the decisions following the suit from inquiring into the validity or legality of the claim. Becharts v. Sizer, In re, 12 C. L. O. 166, p. 167. Parties may under this section litigate for determining the question of right of possession of a mining claim on public land in order that the proper officers may patent the claim to the party establishing the right thereto. Giberson v. Wilson, 79 Ark. 581, p. 583. This section requires a suit to be brought in a court of competent jurisdiction, but contains no direct limitation as to the parties and is for the purpose of determining the question of the right of possession; and there is nothing to prevent a court from determining this right under the law of the locality or denying to either party a favorable judgment, unless one or the other establishes a valid and legal title under the mining laws and the local rules and customs of miners. Nome-Sinook Co. v. Simpson, 1 Alaska 578, pp. 581, 582. See Mason v. Washington-Butte Min. Co., 214 Fed. 32, p. 36. Only controversies between adverse claimants under conflicting mining locations of the same land, which relate solely to the right of possession are committed exclusively to the court. Bunker Hill, etc., Co. v. Shoshone Min. Co., 33 L. D. 142, p. 147. See Turner v. Sawyer, 150 U. S. 578, p. 587. A location must be one which entitles the locator to possession against the United States as well as against all other persons. Gwillim v. Donnellan, 115 U. S. 45, p. 50. b. DETERMINATION BY COURT-PROOF BEFORE LAND DEPARTMENT. This section relates only to the question of the right of possession of a mining claim as between the parties litigant and it remains in every case for the Land Department to determine all other questions touching the right to a patent. Clipper Min. Co. v. Eli Min. & Land Co., 33 L. D. 660, p. 667. The determination of the controversy by the court determines the right of possession, but the applicant still must make the proof required by law to entitle him to the patent. Alice Placer Mine, In re, 4 L. D. 314, p. 317. Powell v. Ferguson, 23 L. D. 173. The provisions of these sections relating to adverse claims contemplate proceedings to determine only the right of possession as between claimants of the same unpatented mineral lands and no authority of law exists for transferring the proceedings from the Land Department to a court for a decision on any other question. Helena, etc., Co. v. Dailey, 36 L. D. 144, p. 148. See Ryan v. Granite Hill Min. & Dev. Co., 29 L. D. 522, p. 524. The judgment of a court in proceedings on an adverse claim is to determine the question of the right of possession, and when it has determined this question its office is ended, but the right to a patent is not thereby established. Clipper Min. Co. v. Eli Min. & Land Co. 33 L. D. 660, p. 668. The validity of the title of an adverse claimant must be determined by a court of competent jurisdiction and not by the Land Office. Batterton v. Douglas Min. Co., 20 Idaho 760, p. 764. Whether an adverse claimant has the better legal right to the mining claim in controversy is a question for the determination of the court and can not be anticipated by the department. Bell v. Aitken, 4 C. L. O. 66. Ogg v. McDonald, 6 C. L. O. 188. C. TITLE OF UNITED STATES NOT AFFECTED BY COURT'S DECISION. An applicant for public lands can not have his right thereto as against the Government determined in an adverse suit. Last Chance Min. Co. v. Tyler, 157 U. S. 683, p. 694. Butte Land & Investment Co. v. Merriman, 32 Mont. 402, p. 411. See United States v. Jones, 131 U. S. 1. The decree of a court in an action authorized by this section determines simply as between the litigants which one has the superior right to the possession of the premises in dispute; and as the title to the land is in the Government such a decree does not affect the title, except in so far as the judgment of the court may be binding on or influence the Land Department. San Francisco Chemical Co. v. Duffield, 201 Fed. 830, p. 833. The title of the United States is not affected by the possessory action between the parties as contemplated in this section. Alice Placer v. Addie Stevens & Lazy Bill Lodes, 3 Brainard Leg. Prec. 242, p. 246. The question of the right of possession is to be determined by the courts, and the United States is not a party to the proceedings, but the only jurisdiction the court may have is of a controversy between individual claimants and the right of an applicant as against the Government can not be determined in such a suit. Perego v. Dodge, 163 U. S. 160, p. 168. See Last Chance Min. Co. v. Tyler, 157 U. S. 683, p. 694. Clipper Min. Co. v. Eli Min. & Land Co., 33 L. D. 660, p. 667. It is the question of the right of possession which is to be determined by the proceedings required to be had in a court of competent jurisdiction, and the United States is not required to be a party to the proceedings. Perego v. Dodge, 163 U. S. 160, p. 168. d. VALIDITY OF ORIGINAL LOCATION. All questions concerning the proper location and the maintenance of a prior location by the performance of the required labor must necessarily be left to the courts for adjudication; and a determination of this question by a court of competent jurisdiction is conclusive on the department as to the questions involved. Branagan v. Dulaney, 2 L. D. 744, p. 749. Alice Placer Mine, In re, 4 L. D. 314, p. 317. In a contest as to the ownership of a mining claim the regularity and validity of the location are not in question where both parties derive title from the original owners. Mining Co. v. Taylor, 100 U. S. 37, p. 40. It is not competent to show by proof outside the receiver's receipts or the patents that there had been no location of the patented claims or no discovery of the lodes or veins therein before they were entered for patent, as this is the issue between the parties before the Land Department, and its decision on such question is conclusive and not subject to collateral attack. Uinta Tunnel Min., etc., Co. v. Creede & Cripple Creek Min., etc., Co., 119 Fed. 164, p. 166. See Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, pp. 502, 503, 510. Where there is a third location made subsequent to a junior location, such third locator may adverse the application for patent by such junior locator and show that such junior location is void for the reason that at the time it was made the ground was not open to location under the mineral laws of the United States. Swanson v. Kettler, 17 Idaho 321, p. 338.. See Book v. Justice, Min. Co., 58 Fed. 106. |