a perfect title to the minerals. The possession of the minerals would not be aided, however, by possession of the surface, and in order to vest a title thereto in the occupant he must remain in actual and exclusive continued and hostile possession thereof for the statutory period."

§ 437. Approach to mineral immaterial. When there has been an actual holding of mineral for the statutory period the title would follow such possession, regardless of the occupancy of the surface, for the adverse possession is the fact essential to the title, and the manner of approach whether laterally or vertically is immaterial.3 And even though a mine or quarry is wholly surrounded by galleries, if there has been an actual, adverse possession, for the statute period, of a clearly defined portion of the ore, a title by limitation would result, regardless of the means by which the occupancy was exercised.

§ 438. As to running water. - There is no presumption of a grant of the use of water when the adverse use was hostile and without the acquiescence of the owner. But if one who has the prior right of usage of the water permits another to acquire and hold for the statutory period,

1 Armstrong v. Caldwell, 63 Pa. St. 284.

2 Ante, idem. See 420 Mining Company v. Bullion M. Co., where it is held that adverse possession for the statutory period not only bars the remedy, but extinguishes the right and vests title in the adverse holder (2 Sawyer, 450). Eminent authorities differ as to the effect of the statute in this regard, some holding it only takes away the remedy (-ee Tiedeman R. P., § 711), and others contending that it conveys the title. Bliss C. P., § 205 et sub.

3 Dartmouth v. Spittle, 19 W. R. 445; Low Moor Co. v. Stanley Coal Co., 34 L. T. 186; Ashton v. Stock, 6 Ch., p. 726; Seaman v. Vawbrey, 16 Ves. Jr. 392; Mawson v. Fletcher, 6 Ch. 94; 10 Eq. 219.

4 Ashton v. Stock, 6 Ch., p. 726.

5 Union Mining Co. v. Daughberg, 2 Sawyer, 450.

continuous adverse possession of the same, or any part thereof, he would lose his right to the same, or that part which was held and enjoyed by the adverse claimant.1 However, the party claiming the right to the use of water, by adverse possession for the statutory period, must plead the same as a special defense in his answer; and if he should fail to set forth such defense specifically, he would lose the right to introduce evidence in support of it, or to have it considered by the court, in the instructions to the jury.2

§ 439. Claims on U. S. land regulated by statute. Proceedings for the enforcement and adjustment of adverse claims upon the public mining land are regulated by United States statute, and an adverse claimant, in order to avail himself of the benefits of the statute, must comply with its provisions and follow the mode prescribed for the adjustment of such claims. The statute provides that the adverse claim must be filed during the period of publication of the notice, on the oath or affidavit of the adverse claimant, and that it must show the natural boundaries and extent of the adverse claim.4 The adverse

1 Davis v. Gale, 82 Cal. 26.

2 American Co. v. Bradford, 27 Cal. 360. "Where the answer sets up more than five years' continuous adverse possession in the defendant, if the plaintiff, before resting, introduces evidence tending to show his possession during the five years, and the defendant then introduces evidence to sustain the answer, the plaintiff, in rebuttal, may introduc evidence to show that defendant's possession had not been continued, or uninterrupted, or adverse, but he cannot claim the right to introduc evidence to prove the same facts that were proved in his opening." Yankee Jim's, U. S. Co. v. Crary, 25 Cal. 504.

3 Mining Co. v. Bullion M. Co., 3 Sawyer, 634; 9 Nev. 240.

4 420 Mining Co. v. Bullion Co., 1 M. M. R. 114. No one can sue on an adverse claim, until claim is filed in U. S. Land Office. R. S. U. S., Sec. 2326; Mont Blanc Gravel Co. v. Debour, 61 Cal. 364; Rose v. Richmond Min Co., 17 Nev. 25. The action, under the U. S. statute to determine who is entitled to the patent for the given claim, is purely a statu

claimant is also required to commence proceedings to determine the right of possession to the land claimed within thirty days after filing his claim, and to prosecute the same

tory proceeding. Jackson v. Roby, 109 U. S. 440; Gwillin v. Donnellan, 115 U. S. 45; Wolverton v. Nichols, 119 U. S. 485; Smith v. Newell, 86 Fed. Rep. 56; Jordan v. Duke (Ariz.), 53 Pac. Rep. 197; Rough v. Simmons, 65 Cal. 227; Seymore v. Fisher, 16 Colo. 188; Steele v. G. L. Min. Co., 18 Nev. 80; McCarthy v. Speed, 11 S. Dak. 362; Silver City G. M Co. v. Lowry, 19 Utah, 334; 20 Am. & Eng. Enc. Law (2 Ed.), 758. In some States ejectment has been held a proper action. Becker v. Pugh, 9 Colo. 589; Marshall S. M. Co. v. Kirtley, 12 Colo. 410; Darger v. LeSeuer, 8 Utah, 160; Burke v. McDonald, 2 Idaho, 310; Gwillin v. Donnellan, 115 U. S. 45; 20 Am. & Eng. Enc. Law, supra. And in others, a suit to quiet title is held proper. Perigo v. Dodge, 163 U. S. 160; Altoona Min. Co. v. Integral Min. Co., 114 Cal. 100; Mattingly v. Lewisohn, 13 Mont. 508; Hulst v. Doerstler, 11 S. Dak. 14; 20 Am. & Eng. Enc. Law, supra. "§ 2326. Where an adverse claim is filed during the period of publication, it shall be upon the oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the commissioner of the general land office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description

with reasonable diligence to a final judgment.1 What would constitute reasonable diligence in each individual case, would, of course, depend upon the facts and circumstances of the case to be considered, and should necessarily be decided by the court. But, according to the provision of the statute, if the claimant fails to commence his action in a court of competent jurisdiction within thirty days after having filed his claim, the question of reasonableness would not enter into a determination of the case, for such failure would amount to a waiver of the adverse claim, and an answer setting up that the claim was not filed within the proper time, or that proceedings were not instituted, would be a complete defense.2

by the surveyor-general, whereupon the register shall certify the proceedings and judgment roll to the commissioner of the general land office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever." (Act of Congress May 10, 1872, Ch. 152, § 7.) “§ 2351. In case of conflicting claims upon coal lands, where the improvements shall be commenced, after the third day of March, eighteen hundred and seventy-three, priority of possession and improvement, followed by proper filing and continued good faith, shall determine the preference-right to purchase. And also when improvements have already been made prior to the third day of March, eighteen hundred and seventy-three, division of the land claimed may be made by legal subdivisions, to include, as near as may be, the valuable improvements of the respective parties. The commissioner of the general land office is authorized to issue all needful rules and regulations for carrying into effect the provisions of this and the four preceding sections." (Act of Congress March 3, 1873, Ch. 279, § 5.)

1 Wade's Am. M. Laws, p. 186. Possession determines rights, irrespective of government title. R. S. U. S., Sec. 910.

2 Deno v. Griffin, 20 Nev. 249; Marshall Silver Company v. Kirtley, 12 Colo. 410; Denver Legal News, 186; 21 Pac. Rep. 492. Tunnel claimant acquires no right to blind lodes as against surface lode claimant, under Sec. 2323, R. S. U. S. Calhoun G. M. Co. v. Ajax Min. Co., 27 Colo. 1; 50 L. R. A. 209. Where a tunnel claimant fund the vein of a mining claimant, in his tunnel, within 1500 feet of the mining claimant's point

§ 440. Same-Jurisdiction in cases of adverse claims. The only provision of the statute in regard to what courts will have jurisdiction in questions between adverse claimants, is the requirement that such proceedings shall be commenced in a court of competent jurisdiction to determine the question of the right of possession."1 In accordance with this provision any court which could enter into the determination of the question of the right of possession, would seem to be a court of competent jurisdiction to determine the rights of the conflicting claimants, unless the construction of the laws of Congress applicable to the matter in dispute would prevent the courts having original jurisdiction," for while the State courts would have original jurisdiction in cases where the main question to be determined is whether or not there has been a compliance with the local laws; 3 where the subject-matter of the action arises under laws of the United States, since such action can only be determined by reference to the mining laws of Congress, it has been held the United States courts would have original jurisdiction.4 The claimant is the only per

of discovery, the tunnel claimant's location was held to prevail, although no "adverse claim" had been filed. Enterprise Co. v. Rico-Aspen Co., 167 U. S. 108; Campbell v. Ellet, 167 U. S. 116. "The prior discovery which excludes the rights of the tunnel owners has ref. erence to lodes and not to claims; so that the first clause, or half of the section would seem to give them the right to locate, possess, and enjoy any newly discovered blind leads, even on claims already located." Wade, p. 67.

1 U. S. R. S., § 2325. Brandt v. Wheaton, 1 M. M. R. 145.

2 The jurisdiction of the State courts is not increased by acts of Congress. 420 Mining Company v. Bullion Co., 1 M. M. R. 114. Alienage cannot be set up in a collateral proceeding, but only by the government. Tornanses v. Melsing, 109 Fed. Rep. 710.

3 Wade Am. Min. Law, p. 106; Trafton v. Noyes, 4 Sawyer, 178. 4 Frank &c. Co. v. Lorimer, 1 Colo. Law Rep. 495. And such action in a State court would accordingly be removable to U. S. court. Idem.

1 M. M. R. 150.