claim to the remainder, for as to such claims he has no adverse interest.1

§ 644. When plaintiff must be in possession. Where the plaintiff holds the legal title, or one which would enable him to recover possession in the legal action of ejectment, he is not permitted to maintain a suit to quiet his title, unless in possession, for he has an adequate remedy at law.2 When in possession, however, he would not have an adequate legal remedy to test his title, and hence could maintain the action. And where he does not hold a title sufficient to enable him to recover in ejectment, he can sue to remove a cloud from his title, although not in possession, as he would also be without an adequate legal remedy. The court will, therefore, assume jurisdiction, where the plain

1 Onderdonk v. Mott, 34 Barb. (N. Y.) 106; 17 Enc. Pl. & Pr. 321. See, also, Cashman & Cashman, 123 Mo. 647. The action can be maintained against a party claiming a lien upon the property. Head v. Fordyce, 17 Cal. 149; 12 Mor. Min. Rep. 470. But see, contra, Iowa Code, 1897, Sec. 4223. Fejervong v. Longer, 9 Iowa, 159; Eldridge v. Kuehl, 27 Iowa, 176; 17 Enc. Pl. & Pr. 321. But see Blair v. Hemphill (Iowa, 1900), 82 N. W. 501. An option to purchase, after placed of record, if sufficient cause exists, can be canceled as a cloud on title. Reilly v. Tygard, 28 Pitts. L. J. (N. s.) 313.

2 Elk Fork Oil Co. v. Jennings, 84 Fed. Rep. 839; Robertson v. Wheeler, 162 Ill. 566; Weaver v. Bates (Ky.), 33 S. W. Rep. 1118; Kelly v. Martin, 107 Ala. 479; 17 Enc. Pl. & Pr. 305; Bedford v. Sykes, 67 S. W. Rep. 569.

3 Mason v. Black, 87 Mo. 329; McRea v. Gardner, 131 Mo. 599; Rutz v. Kohn, 143 Ill., 558; Sutcliff v. Smith, 58 Kan. 560; Brown v. Boquis, 57 Ark. 97; Wakefield v. Sunday Lake Mining Co., 85 Mich. 605; Packard v. Beaver V. & L. Co., 96 Ky. 249; Scorpion Sil. Min. Co. v. Morsano, 10 Nev. 370; Lovelady v. Burgess, 32 Oregon, 418; Virginia Coal Co. v. Kelly, 93 Va. 332; Burns v. Mearus, 44 West Va. 744; 17 Enc. Pl. & Pr. 308. In West Virginia, it is held plaintiff must be in possession. Virginia & Iron Coal Co. v. Kelly, 93 Va. 332.

4 Mason v. Black, 87 Mo. 329; Kerr v. Martin, 90 Ky. 377; Holden v. Holden, 24 Ill. App. 106; Conn. Ins. Co. v. Smith, 117 Mo. 261; Smith v. Orton, 21 How. (U. S.) 241; 17 Enc. Pl. & Pr. 311.

tiff is not in possession, if he has but an equitable title,1 or one depending upon oral evidence,' for in such case an adequate legal remedy would be impossible. In these cases, or where, from any cause, there is some independent ground for equitable interference, the action would lie, although the plaintiff was not in possession, and once jurisdiction attached, the court would grant complete relief and restore the successful plaintiff to possession."

6

§ 645. Possession alone of mining claim sufficient. Mere possession has been held sufficient to maintain a suit to quiet title to a mining claim upon the land of the United States, for a possessory title, as to all except the government, is a good estate in real property, although held on condition, which is subject to conveyance and the laws of descent, the same as other real property. It is even held, under the Nevada practice act, that the action can be maintained by one in possession, whether the possession be rightful or wrongful, and that the question of how the possession was acquired cannot be inquired.

1 Mason v. Black, supra; Branch v. Mitchell, 24 Ark. 431; Brown v. Wilson, 21 Colo. 309. But see Frost v. Spitley, 121 U. S. 556.

2 Mason v. Black, supra; Echols v. Hubbard, 90 Ala. 309.

3 Tuffree v. Polhemus, 108 Cal. 670; 17 Enc. Pl. & Pr. 304; Morris v. Bank, 17 Colo. 231.

4 Gilbreath v. Dillday, 152 Ill. 207; Branch v. Mitchell, 24 Ark. 439; Sharon v. Tucker, 144 U. S. 533; Corberry v. West Va. Co., 44 W. Va. 260. Statutes have been passed in many States dispensing with the necessity of possession, on the part of the plaintiff.

5 Graves v. Ewart, 99 Mo. 13; Conn. Ins. Co. v. Smith, 117 Mo. 261; Branch v. Mitchell, 24 Ark. 439; Trainor v. Greenough, 145 Ill. 543; Gore v. Dickinson, 98 Ala. 363; 17 Enc. Pl. & Pr., pp. 319, 311.

Pralus v. Pac. Gold & Sil. Min. Co., 35 Cal. 30; 12 Mor. Min. Rep. 478.

7 Harris v. Equator Min. Co., 3 McCreary (U. S.), 14; 12 Mor. Min. Rep. 178; Honixhurst v. Louder, 28 Cal. 331; 12 M. M. R. 214; Lentz v. Victor, 17 Cal. 271; 12 M. M. R. 211.

into.1 This is an extreme doctrine, however, which might permit one occupying a wrongful position to profit by his own wrong in an equitable proceeding, and the better doctrine would seem to be that the possession, sufficient to maintain the action, must be a rightful possession,2 and that a petition which fails to show a rightful possession in the plaintiff is subject to demurrer.3

§ 646. Same - Ditch and water rights. Any claim to real estate, or interests therein, which might result in loss or litigation to the owner or party in possession, is held to be the subject of a suit to quiet title. Accordingly, a bill will lie to quiet the title of the possessor of a ditch, for drainage purposes, upon a mining claim, and, likewise, the remedy will be extended to the protection of a water right, to which an adverse claim is made, but, in either case, possession of the property, in which the right is claimed, is essential to the maintenance of the action.6

1 Scorpion Silver Min. Co. v. Morsano, 10 Nev. 370; 12 M. M. R. 502; overruling Blasdell v. Williams, 9 Nev. 161. Where plaintiff had been in possession several years a defense that a prior location of the mining claim was never abandoned cannot be urged by defendant unless he claims under such prior claimant. Ramus v. Humphreys, 133 Cal. 340; 65 Pac. Rep. 875.

2 Pralus v. Jefferson Gold and Silver Mining Co., 34 Cal. 558; 12 Mor. Min. Rep. 473; Kitts v. Austin, 83 Cal. 167; Wood v. R. R., 11 Kan. 323; Frost v. Spitley, 121 U. S. 556; Walker v. Pogue, 2 Colo. App. 152. 3 Ante, idem. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202. One not in possession cannot maintain a suit to quiet title to a claim upon the public land. Nevada Min. &c. Co. v. Kidd, 37 Cal. 283. A placer claimant in possession of his claim upon the public mining land of the United States can maintain an action to quiet title, although he has not paid his purchase money or obtained patent. Gillis v. Downey, 85 Fed. Rep. 483; citing and distinguishing Frost v. Spitley, 121 U. S. 552; L. Ed. 1010.

4 Head v. Fordyce, 17 Cal. 149; 12 Mor. Min. Rep. 470; Goldsmith v. Gilliland, 22 Fed. Rep. 758; Milligan v. Laveny, 9 Pac. Rep. 894.

5 Falmouth v. Innis, Mosley, 87.

6 Nevada Co. v. Kidd, 37 Cal. 283. A right to the continuous flow of

§ 647. What petition should contain. The necessary averments of the petition, in a suit to quiet title, would depend largely upon the code, or statute of the State where the suit is filed. Generally, however, the title or claim of the plaintiff; 1 an averment as to possession; 2 a description of the property; an allegation as to defendant's claim; the facts showing the cloud; 5 the inadequacy of a legal remedy and the prayer for relief,' are the essential facts to be alleged in the petition.

9

6

3

A general allegation of ownership, however, is sufficient without setting up the facts showing the derivation or source of the title; an allegation of vacancy will excuse an allegation of possession; 10 a description would be sufficient which would identify the property; 11 it is not necessary to set up the nature, extent and circumstances of defendant's claim,12 and facts showing the apparent validity of the instrument sought to be canceled as a cloud, or which formed

water, being a real property right, is the subject of a suit to quiet title. Fudicker v. East Riverside Irr. Dist., 109 Cal. 29; 41 Pac. Rep. 1024. 1 Stratton v. Cal. Land &c. Co., 86 Cal. 353; Rogers v. Miller, 13 Wash. 82.

2 Grove v. Jennings, 46 Kan. 366; Wetherell v. Eberle, 123 Ill. 666. 3 Bulwer Con. Min. Co. v. Standard Co., 83 Cal. 589; Goldsmith v. Gilliland, 10 Law (N. s.), 606.

4 Goldsmith v. Gillilland supra; Zumwalt v. Madden, 23 Oregon, 185. 5 Gage v. Kaufman, 133 U. S. 471; Peacock v. State, 104 N. Car. 154.

6 South Pac. Co. v. Goodrich, 57 Fed. Rep. 882; Astiazaron v. Santo Rita Co. (Ariz.), 20 Pac. Rep. 189.

7 Lees v. Wetmore, 58 Iowa, 170; Kennedy v. Elliott, 85 Fed. Rep.

834.

8 17 Enc. Pl. & Pr. 326 to 345.

9 Parley's Park Sil. Min. Co. v. Kerr, 130 U. S. 256; Ely v. W. M. &c. Co., 129 U. S. 221.

10 Glos v. Randolph, 133 Ill. 197; Muller v. Nieman, 27 Ark. 234.

11 Miller v. Lucco, 80 Cal. 257.

object. Smith v. Prall, 133 Ill. 308.

And would be waived by failure to

12 Scorpion Sil. Min. Co. v. Morsano, 10 Nev. 370; 12 Mor. Min. Rep.

the basis of the adverse claim,1 would generally be held sufficient to constitute a good cause of action, together with the other necessary allegations.

2

§ 648. Evidence and burden of proof. The facts of title, possession, the adverse claim, etc., alleged by the plaintiff, should be proven at the trial, substantially as alleged, and where the answer of the defendant does not amount to a confession of the facts alleged in the petition, the burden of proving such facts is upon the plaintiff.3 But if, from the nature of the pleadings, the defendant assumes the burden of proof, or asks for affirmative relief, then the burden of proof would be assumed by him and he would be required to establish, by competent evidence, the validity of his claim or title; 4 and in adverse claims, upon the public mining land of the United States, in some jurisdictions, the defendant is always required to prove the validity of his claim, or is held to be the initial

1 Teal v. Collins, 9 Oregon, 89; Goldsmith v. Gilliland, 10 Saw. (U.S.) 606; 17 Enc. Pl. & Pr. 341.

2 Glas v. Goodrich, 175 Ill. 20; 51 N. E. Rep. 643; Winter v. McMillan, 87 Cal. 256.

3 The failure to do the necessary work to hold a claim upon the public land of the U. S. is on the party to establish who alleges such failure. Strasburger v. Beecher, 20 Mont. 143; 49 Pac. Rep. 740. "Where both plaintiff and defendant, in a suit to quiet title to a mining claim, ask to have their titles quieted, each have the burden of showing the validity of his location; plaintiff to take the lead in such proof." Shattuck v. Costello (Ariz.), 68 Pac. Rep. 529 (1902).

4 Hungarian Hill Gravel Min. Co. v. Moses, 58 Cal. 168; Periga v. Dodge, 9 Utah, 3; Bushnell v. Crooke Min. Co., 12 Colo. 247; Winter v. McMillan, 87 Cal. 257; Parley Park Silver Min. Co. v. Kerr, 130 U. S. 256. "The crossbill cannot be maintained after dismissal of the original bill, cross-complainants being out of possession, and having a remedy at law." Mayer v. Calera Land Co., 31 So. Rep. 938 (Ala. 1902). "A crossbill does not lie to quiet a title distinct from complainant's claim." Idem.