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cannot be definitely framed and formed unless the facts constituting the action, as well as the defense, are pleaded.1 And although one in possession of public land is entitled to maintain an action to test the validity of a party's title who is out of the possession, it would not be sufficient, in such an action, for the defendant to set up an abandonment by the plaintiff, of his alleged title, and possession by the defendant after the commencement of the suit, for the defendant would have to go further and show subsequently acquired rights of his own in regard to the land in controversy, or his defense of the weakness of the plaintiff's title would be unavailing.3

abandonment

§ 428. Effect of abandonment. An cannot operate to vest the title or transfer the property abandoned to another, but wherever it takes effect it simply operates as a destruction of the title, or a loss of the rights of the party committing the act. If the owner of a mining claim abandons his claim before the legal title to the land has become vested in such claimant, this will operate as an utter extinguishment of any rights he may have acquired while in possession of the claim; and while there cannot be, technically speaking, an abandonment of a claim after the title has passed,5 the doctrine applies until the

1 Dutch Flat Water Co. v. Mooney, 12 Cal. 534; Blanch. & Weeks Ld. Cas., p. 225.

2 Pralus v. Pacific G. & S. M. Co., 35 Cal. 30; Merced Mining Co v. Fremont, 7 Cal. 319; Smith v. Brannan, 13 Cal. 107; Boggs v. Merced Mining Co., 14 Cal. 279; Curtis v. Sutter, 15 Cal. 259; Head v. Fordyce, 17 Cal. 149.

8 Blanchard & Weeks Ld. Cas., pp. 225-226, and cases cited.

♦ Tiedeman on R. P., § 739, p. 559. But see, contra, Dutch Flat Water Co. v. Mooney, 12 Cal. 534. Also see Gluckauf v. Reed, 22 Cal. 469; Dyson v. Bradshaw, 23 Cal. 528.

5 Wade's Amer. Min. Laws, p. 60. A grant of mineral with a covenant that grantee is to mine and pay royalty, on abandonment, is divested. Paine v. Griffith, 86 Fed. Rep. 452.

owner has acquired the legal title to the claim, and if he should abandon his claim at any time when he has but a possessory right thereto, he would afterwards, with respect to that claim, be upon the same footing as any other third party, who had never been in possession of the land.1 As in the case of a forfeiture for a failure to work, an abandonment must be clearly established by the party setting up such abandonment as a basis for his own rights. But while forfeiture for a failure to work may be cured by a resumption of work at any time before the rights of third parties have intervened, an abandonment operates as an actual divestment of the rights of the owner and the relocation of an abandoned claim is governed by the same rules that would apply in the original location of such claim.3

1 Davis v. Butler, 6 Cal. 510. As to water right see Dougherty v. Creary, 30 Cal. 290; Jones v. Jackson, 9 Id. 237.

2 Blanchard & Weeks Ld. Cas., pp. 222 and 223 et sub.

8 Dutch Flat Co. v. Mooney, 12 Cal. 534. A relocation dates only from the relocation, although designated as an amendment in the location certificate. Cheesman v. Shred, 40 Fed. Rep. 787.

CHAPTER XXVII.

ADVERSE POSSESSION, CLAIMS, AND CONTESTS.

SECTION 429. Mining rights, under limitation statutes.
430. What possession considered adverse.
431. Acts amounting to adverse possession.
432. Acts not amounting to adverse possession.
433. Same-With or without color of title.
434. Non-user alone not sufficient.

435. When possession stealthy or wrongful.
436. When possession of surface not adverse.
437. Approach to mineral immaterial.

438. As to running water.

439. Claims on U. S. land regulated by statute.

440. Same-Jurisdiction in cases of adverse claims.
441. Same-All conflicts not adverse claims.

442. Same-When and where claim must be filed.
As between lode and placer claimants.
- In cases of overlapping claims.

443. Same
444. Same

444a. Same-Appeals - Land officer's duties.

§ 429. Mining rights, under limitation statutes. -- A mine, or quarry, as a part of the solum, from the surface to the center of the earth, is as much subject to statutes of limitation as any other of the elements, going to make up the term, lands, tenements, and hereditaments,1 and a title by adverse possession may be acquired to mines and minerals, either by or against an individual or corporation. Before

1 Smith v. Stacks, 10 B. & S. 701; MacSwinney on Mines, etc., p. 524. Statute applicable to all corporeal hereditaments. Armstrong v. Caldwell, 13 M. M. R. 252.

2 Ante, idem. Thew v. Wingate, 10 B. & S. 714. Statute does not run against government. Vansickle v. Haines, 15 M. M. R. 201; Mining Co. v. Ferris, 8 M. M. R. 91. The U. S. statute is as follows: § 2332. Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or territory where the same

a severance of the title to mineral in place from the title to the surface, a title to mines or minerals could also be acquired by limitation, on the part of one having the exclusive right and possession of the surface,1 and even though one had neither right nor possession of the surface, if possession of mines or minerals is held, in the statutory manner, and for the requisite period, a title would be acquired as to them, as a separate subject-matter." But a title to mineral, by adverse possession, is not aided by surface rights or occupancy; it must be actual, as distinguished from constructive possession and separate and distinct from the occupancy of the surface.3

§ 430. What possession considered adverse. The rule of law is well settled that mere naked possession of land will enable the person holding such possession to retain the land as against all the world, except the true owner, but before the possession of the party in possession will vest in him a title to the land, it must be adverse to

may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent. (Act of Congress July 9, 1870, Ch. 235, § 13.)

1 Thew v. Wingate, 10 B. & S. 714, 721; MacSwinney, p. 526.

2 Ante, idem. Fleming v. Howden, 6 Sess. Cas. 783. "Occupation of land under paper title, by mining operations, continuous, notorious and visible, may constitute actual adverse possession. Mining, though a less general industry, is entitled to protection as well as agriculture." Wilson v. Henry, 40 Wis. 594; s. c. 35 Id. 241; M. M. D. 345.

3 Armstrong v. Caldwell, 13 Mor. Min. Rep. 252. Non-user alone will not bar the rightful owner's title to mineral. House v. Palmer, 9 Ga. 497; Perkins v. Stockwell, 131 Mass. 529; Monroe v. Bowen, 26 Mich. 523; 20 Am. & Eng. Enc. Law (2 Ed.), 753. Secret mining will not put statute in op ration. Bonomi v. Backhouse, 96 E. C. L. 622; Lewey v. Coal Co., 166 Pa. St. 536; Plummer v. Hillside Coal Co., 104 Fed. Rep. 208.

and independent of the real owner.1 The possession of the lessee, or agent of the true owner, is never considered as adverse to such owner's possession but, on the contrary, the possession of the agent or lessee is deemed in law the possession of the owner.2 As to within what time action must be brought to oust a person in adverse possession of a mining claim, reference must be had to the local statute, as the different States have adopted different periods of limitation in regard to actions for possession of mining claims.3 Parties in joint possession of a claim are governed by the general rule that obtains in the case of tenants in common, and before the possession of one such tenant will be considered as adverse to his cotenants, there must have been acts on his part sufficient to indicate his intention to exclude his cotenants; there must be evidence that he was in actual possession of the claim, and that he held the claim adversely to his cotenants for the entire statutory period.'

1 Ege v. Medlar, 82 Pa. St. 86. A deed fraudulently obtained cannot be foundation for an adverse possession, nor will a subsequent working under such deed make the possession adverse. Livingston v. Peru Iron Co., 9 Wend. 513; s. c. 2 Paige Ch. 390. But generally an entry under an adverse claim of title and a subsequent digging of ore, or operation of the mines, will, in law, constitute an adverse possession of the land so held. West v. Lonier, 9 Humph. (Tenn.) 762; Aikin v. Buck, 1 Wend. 467; Calvin v. McCune, 39 Iowa, 502; Jackson v. Olitz, 8 Wend. 440; McDonnell v. McGinty, 10 Irish L. R. 514; Ewing v. Burnet, 11 Peters, 41. 2 Possession is never adverse when with the consent of true owner. Gould v. Martyn, 19 C. B. (N. s.) 732. Where there has been no severance of titles, adverse possession of surface for statutory period bars title to coal beneath. Delaware Canal Co. v. Hughes, 2 Lack. L. News, 21. Adverse possession for the statutory period will not confer title to minerals previously severed from the surface by deed. Catlin Coal Co. v. Lloyd, 176 Ill. 275; 180 Idem, 398; 54 N. E. Rep. 214. As to when possession by cotenant is adverse see Thompson v. Ferry (Ariz.), 56 Pac. Rep. 741; Susquehanna Co. v. Quick, 61 Pa. St. 32.

3 See different statutes; 420 Mining Co. v. Bullion Co., 11 M. M. R. 608; Mining Co. v. Bullion M. Co., 9 Nev. 240; 3 Sawyer, 659.

4 Mining Co. v. Taylor, 100 U. S. 37; Wade, p. 20; Coleman v. Clemens, 23 Cal. 245.

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