real distinction between the forms of action is in the trial, equitable cases being before the court without a jury, and legal actions before a jury; and this is always determined from the pleadings after they are framed.

716. Right to a jury trial - When waived - Commonlaw jury. The courts are widely at variance on the question as to whether either of the parties to an adverse suit is entitled to a jury trial as matter of right. The courts of Colorado and Idaho go to the extreme in holding that the question being one to determine which party, if either, is entitled to the possession of the premises in dispute, the parties are entitled to a jury trial as a matter of right, regardless of the form of the pleadings or which party is in possession.1 But this position is opposed to the better reasoning, which is to the effect that this is a purely equitable proceeding, and that at most the verdict of the jury is only advisory to the court. The supreme court of Arizona pursues this question a little further and holds that, where a case is tried before a jury, the parties are not entitled to a common-law jury, but only to such as is provided by the laws of the particular jurisdiction; and in that case a verdict by nine of the twelve jurors was upheld.

Of course here, as in all cases where the parties voluntarily proceed to trial without demanding a jury, they are deemed to have waived it.4

1 Manning v. Strehlow, 11 Colo. 451, 18 Pac. Rep. 625; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. Rep. 652; Becker v. Pugh, 9 Colo. 589, 13 Pac. Rep. 906; Burke v. McDonald, 2 Idaho, 310, 13 Pac. Rep. 351.

2 Hammer v. Garfield M. & M. Co., 130 U. S. 291; Perego v. Dodge, 163 U. S. 160, affirming 9 Utah, 3; Doe v. Waterloo M. Co., 43 Fed. Rep. 219; S. C., 70 Fed. Rep. 458, 17 C. C. A. 190; Preston v. Hunter, 67 Fed. Rep. 996, 15 C. C. A. 148; Shoshone M. Co. v.

Rutter, 87 Fed. Rep. 801, 31 C. C. A. 223; Smith v. Richardson. 2 Utah, 424; Mantle v. Noyes, 5 Mont. 274, 5 Pac. Rep. 866; Gallagher v. Basey, 1 Mont. 461; affirmed, Basey v. Gallagher, 20 Wall. 679; Noyes v. Mantle, 127 U. S. 348.

3 Providence G. M. Co. v. Burke (Ariz.), 57 Pac. Rep. 641.

4 Perego v. Dodge, supra; Kerney v. Case, 79 U. S. 12; Bond v. Dustin, 112 U. S. 604.

ARTICLE B.

Form and Character of the Action - Pleadings and Proof.

717. Pleadings-The complaint.

718. Same-The answer - The reply.

719. Necessity of pleading citizenship.

720. Same-Corporations.

721. Facts necessary to show appropriation and ownership - Right to strengthen title after suit is filed.

722. Complaint must show previously filed adverse claim. 723. Joinder of actions - Parties.

The complaint in

§ 717. Pleadings-The complaint. adverse suits should set forth generally the citizenship of the plaintiff or plaintiffs, or, if it be a corporation, its corporate character and that it was incorporated under the laws of a state or territory of the United States; also facts showing a valid location of the mining claim, and compliance with the law, by the plaintiff and his predecessors, sufficient to entitle plaintiff to present possession of the premises in question; of the survey of the ground and application for patent by the defendant; the fact that such survey conflicts with plaintiff's ground, setting forth such conflict specifically; also the fact that the plaintiff filed an adverse claim in the land office during the period of publication and within sixty days after the first publication, and the commencement of the action in court within thirty days thereafter. It should further set forth such additional facts as shall be necessary, in each particular case, to entitle the plaintiff to the area in conflict.1

The supreme court of California, in a nine-line opinion, announced the extreme doctrine that a complaint stating that plaintiff is the owner and in possession of the area in conflict, and that defendant claims an interest therein ad

1 Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. Rep. 97, 7 id. 619; Keeler v. Trueman, 15 Colo. 143, 25 Pac. Rep. 310; Becker v. Pugh, 9 Colo. 589, 13 Pac. Rep. 906; McCaig v. Bryan, 10 Colo. 309, 15 Pac. Rep. 413; Mat

tingly v. Lewisohn, 8 Mont. 259, 19 Pac. Rep. 310; Cronin v. Bear Creek M. Co. (Idaho), 32 Pac. Rep. 204; Anthony v. Jillson, 83 Cal. 296, 23 Pac. Rep. 419; Cadierque v. Duran, 49 Cal. 356.

verse to plaintiff, which claim is without right, and that defendant has no estate, right, title or interest in said area in conflict, states a cause of action.' The syllabus is somewhat stronger in statement than the opinion. But the soundness of this decision may well be questioned; and it is contrary to the other decisions of that court.?

The reply. The answer,

§ 718. Same- The answer in addition to denying all the allegations in the complaint controverted by the defendant, should set forth facts sufficient to show the defendant to be entitled to recover as against the United States as well as against the plaintiff. These should consist of substantially the same allegations as are required to be made on the part of the plaintiff.3 This is necessary for the reason, previously stated, that either party in order to recover is required not only to establish a better title to the area in conflict than his adversary, but also his right to his claim as against the government; that is to say, his right to a patent. To this extent each party is practically plaintiff in the case." It is in this particular that adverse suits differ from ordinary actions to determine the ownership and right of possession of real estate. And because of this distinction the plaintiff is not obliged to reply to any of the affirmative allegations in the answer necessary to establish the right of the defendant to the area in conflict, whether pleaded merely as affirmative

1 Rough v. Simmons, 65 Cal. 227, 23 Pac. Rep. 419; Cadierque v. 3 Pac. Rep. 804. Duran, 49 Cal. 356; Burke v. McDonald, 2 Idaho, 310, 33 Pac. Rep. 49; Cronin v. Bear Creek G. M. Co. (Idaho), 32 Pac. Rep. 204; Manning v. Strehlow, 11 Colo. 351, 18 Pac. Rep. 625.

2 Lee Doon v. Tesh, supra; Anthony v. Jillson, supra; Thompson v. Spray, 72 Cal. 534; Hall v. Arnott, 80 Cal. 348; Dutch Flat Water, etc. Co. v. Mooney, 12 Cal. 534. See also Gorman v. Alexander, 2 S. D. 557, 51 N. W. Rep. 346; Jackson v. Dines, 13 Colo. 90, 21 Pac. Rep. 918; Thomas v. Chisholm, 13 Colo. 105, 21 Pac. Rep. 1019.

4 Ante, § 715.

5 Jackson v. Roby, 109 U. S. 440; Rosenthall v. Ives (Idaho), 12 Pac. Rep. 904; Burke v. Bunker Hill & S. M. Co., 46 Fed. Rep. 644; Stras

3 Anthony v. Jillson, 83 Cal. 296, burger v. Beecher, 44 Fed. Rep. 213.

allegations or affirmatively in the nature of a cross-complaint or petition. If either party bases his right to recover upon the statute of limitations he must plead it.3

2

§ 719. Necessity of pleading citizenship.- While it is not necessary, in ordinary possessory actions involving the title to mining claims, for the parties to allege or prove citizenship, this being a question to be raised by or on behalf of. the government alone, and an alien being permitted to hold until office found, this rule does not apply to adverse suits. Here the government being, as it were, a party, and one of the principal issues being to determine which of the parties has the better right to a patent from it, the question of citizenship of the parties is directly involved, since patent will not issue to any one except a citizen, and it is only here that such question may properly be raised. Both parties should therefore allege and prove citizenship or declaration of intention to become such.5

6

The supreme courts of South Dakota and California7

1Iba v. Central Ass'n of Wyoming, 5 Wyo. 355, 40 Pac. Rep. 527, 42 Pac. Rep. 20, 23. One of the reasons given by the court in this case for holding a reply unnecessary is that the defendant would be permitted to prove his title and right of possession, as against the plaintiff and the government under the general issue. We doubt the soundness of this ruling on this point, which is contrary to the weight of authority (see notes 3 and 5, ante, p. 616), but the other conclusions are based upon sound principles of law. 2 Ante, § 672; R. S. U. S., § 2332. Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. Rep. 1029.

4 Ante, § 261, Part V, ch. III. 5 O'Reilly v. Campbell, 116 U. S. 418; Manuel v. Wulff, 152 U. S. 504; Doe v. Waterloo M. Co., 70 Fed. Rep.

455, 17 C. C. A. 100; Lee Doon v. Tesh, 68 Cal. 43; 6 Pac. Rep. 97, Anthony v. Jillson, 83 Cal. 296. 23 Pac. Rep. 419; McFeters v. Pierson, 15 Colo. 201, 24 Pac. Rep. 1076; Thomas v. Chisholm, 13 Colo. 105, 21 Pac. Rep. 1019; Keeler v. Trueman, 15 Colo. 143, 25 Pac. Rep. 311; Schultz v. Allyn (Ariz.), 48 Pac. Rep. 960; Rosenthali v. Ives, 2 Idaho, 244. 12 Pac. Rep. 904; Wulff v. Manuel, 9 Mont. 279, 23 Pac. Rep. 723; Burke v. McDonald, 2 Idaho, 646, 33 Pac. Rep. 49, 50; Bohanon v. Howe, 2 Idaho, 417, 17 Pac. Rep. 483; ante, $717. See McKinley Creek M. Co. v. Alaska M. Co., 183 U. S. 563.

6 McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. Rep. 590.

7 Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100, 45 Pac. Rep. 1047.

have held to the contrary on this point. In the former case the court, without stating the reasons for its position, holds that the question of citizenship may not properly be raised in adverse suits, citing the supreme court of the United States as authority. A careful examination of the opinion in the last mentioned case, however, will show that it does not so decide. In that case the claim was originally located, by a citizen and by him conveyed to an alien, who became naturalized before the judgment was rendered. After discussing these facts, the court, speaking through Mr. Justice Brewer, said:

"The incapacity of the latter to take and hold by reason of alienage was, under the circumstances, open to question by the government only. Inasmuch as this proceeding was based upon the adverse claim of Wulff to the application of Moses Manuel for a patent, the objection of alienage was properly made, but this was as in right and on behalf of the government, and naturalization removed the infirmity before the judgment was rendered."2

In the California case the court insists strenuously throughout the opinion that the action is not an adverse suit. But it is difficult to see upon what they base this statement. The action was brought to determine the rights of the respective parties to the ground in controversy, pending the application in the land office for patent and the publication of notice thereon, and after the filing of an adverse claim. The position of the court as to the nature of the action is doubtless its reason for deciding that an allegation of citizenship is unnecessary, for it is clearly opposed to the rulings of that court in adverse suits both before and after.3

§ 720. Same-Corporations.-There is good authority to the effect that a corporation, in order to maintain an adverse suit, must, in addition to alleging its due incorporation

1 Manuel v. Wulff, 152 U. S. 504. 5, ante, p. 627; Harris v. Kellogg, 2 Manuel v. Wulff, supra. 117 Cal. 484, 40 Pac. Rep. 708.

3 See California cases cited in note