tice of intention to apply for a patent, the register of the land office shall publish a notice of the same in a newspaper published nearest the location of said claim, and shall also post such notice in his office for the period of ninety days; and after the expiration of such period, if no adverse claim shall have been filed, it shall be the duty of the surveyor general upon application of the party, to survey the premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed; and upon the payment to the proper officer of five dollars per acre, together with the cost of such survey, plat and notice, and giving satisfactory evidence that said diagram and notice have been posted on the claim during said period of ninety days, the register of the land office shali transmit to the general land office said plat, survey and description, and a patent shall issue for the same therefor."

Section six provides as follows: "That whenever any adverse claimant to any mine located and claimed as aforesaid, shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until final settlement and adjudication, in the courts of competent jurisdiction, of the rights of possession to such claim, when a patent may issue as in other cases."

Section nine makes similar provision for confirming water rights under like circumstances; that is to say, "whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing and other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected therein." On July 9, 1870, six sections were added to the act and were thenceforth to form a part of it. Similar rights under section twelve (section 1 of the new act) were extended to the possessors of placer claims; and section thirteen provided that "where said person or association, they and their grantors, shall have held and worked their said 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 may be situated, evidence of such posession

and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this act, in the absence of any adverse claim."

In 1872 a new act was passed as a substitute for much of the former acts, making still more specific provisions as to the mode of proceedings, etc., but providing that the repeal of portions of former acts should not affect rights already vested thereunder, and that proceedings to perfect such vested rights might be had in pursuance of the provisions of the new act.

C. J. HILLYER, DELOS LAKE and R. S. MESICK, for complainant.

M. N. STONE, JOHN GARBER and R. H. LLOYD, for defend

ants.

SAWYER, Circuit Judge, after stating the facts:

Upon the facts shown by the bill of complaint, the defendant insists that the right to the four hundred and twenty feet of the Comstock lode in question, and, consequently, the right to the patent, appears in the bill to have been o::ce directly put in issue, in an action between the same parties fully litigated and determined in favor of the defendant; and that the matter is res adjudicata, and a bar to further litigation. On this ground it is claimed that the bill shows no equity. After a careful consideration of the acts of Congress set out in the statement of the case, it is clear to my mind that it was the intention of Congress to give the right of purchase of a mining claim to a silver or gold bearing lode or vein, to the person or association of persons who, in pursuance of the laws of the State or Territory and the local mining customs, rules and regulations of the place where located, recognized by the laws and enforced by the courts, is the owner and entitled to the possession as against everybody except the government of the United States. It will be seen that the act expressly refers to, and recognizes, the laws of the State or Territory, the local customs, rules and regulations not in conflict with the laws of the United States, the decisions of the courts, and even, in express terms, the State and Territorial Statutes of Limitation applicable to the subject. The act requires the party seeking

a patent to file a diagram of the claim, and post a copy in a conspicuous place on the claim, together with a notice of intention to apply for a patent, and requires the register of the land office, also, to publish a notice of the same in a newspaper published at the nearest place, for ninety days. It then authorizes the adverse claimant, before approval of the survey, to file a protest, upon which all proceedings are stayed "until final settlement and adjudication in the courts of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases." That adjudication is to be had in the ordinary courts, and to be determined under the ordinary rules, regulations, customs and laws of the locality. It seems impossible to come to any other conclusion, than that the party, who at the time can maintain his right to the claim in the courts of the country as against any person but the United States, under the local laws, customs, rules and regulations, is the party upon whom Congress intended to confer the right to purchase, no matter how that right originated, if under such laws and customs and decisions of the courts he has the present right. And this is simply a right to purchase-a privilege given to the party, of which he may avail himself or not, exactly like a pre-emption law, and founded upon similar reasons and policy. And what this privilege is, is stated in the case of Hutton v. Frisbie, 37 Cal. 479, and Frisbie v. Whitney, 9 Wall. 191. The case is in no wise like the case of an inchoate, imperfect Sani-h grant, but is in all respects like a case under the pre-emption laws. The object of a determination of the right by litigation where there is an adverse claim, is simply to ascertain the party who has the right to the claim under the 'aws of the State and local rules and customs; for that person, when found, is the party upon whom the law confers the privilege-the right to purchase. There is no bounty about it, for the party must pay for the land five dollars per acre and the cost of survey, which is more than double the price of ordinary public lands. Undoubtedly the price is often far less than the real value, and so it often is in ordinary pre-emption cases; but this fact in no way affects the principle upon which the law proceeds. Doubtless the object of conferring the privilege is to encourage exploration of hidden mines, as the privilege in ordinary

cases of pre-emption is to encourage settlement and cultivation of the public lands, for the purpose of developing the resources and contributing to the general prosperity of the country.

If I am right in this view-a d it really does not seem open to serious argument-then, in order to ascertain which party was entitled to a patent, it is only necessary to determine which party at the time of its issue was the rightful owner of the mining claim in question, as against everybody but the United States, under the laws, rules, customs and the decisions of the courts in force at the time in the locality embracing it without regard to the act of Congress; for the act of Congress remits the parties to these laws, rules and customs solely to determine their rights.

The next question is, whether it appears, upon the averments of the bill, that the title to the mining claim in dispute, under the local laws and customs upon which it depends, has been once directly put in issue between the parties, and tried and determined in such manner as to become res adjudicata. If so, it ends the case. If not, it will be necessary to consider the other questions raised by the demurrer. After a thorough consideration of the question, I am unable to resist the conclusion that the title has been so put in issue, tried and determined as to become res adjudicata and a bar to further litigation. That it was put in issue, and the facts found, there can be no doubt; and I do not understand that this proposition is controverted. But it is insisted that there was another issue, also found for defendants, upon which the judgment might have been rested, and still be correct; and that there was no occasion to pass upon the title, and no authority in the court to pass upon it; or if there was authority so to do, that it does not appear affirmatively that the judgment went upon that ground, and consequently there is no estoppel. The statute of Nevada, at the time of the commencement of the action, the record of which is made part of the bill, authorized a party in possession of land or of a mining claim to bring an action against any adverse claimant to determine his adverse claim. As that is the most favorable view for complainant, I shall assume, what the defendant denies, that the action in question was brought under, and depended upon, that provision of the statute, and that in case of a failure to prove pos

session at the time of the commencement of the action, the suit would necessarily fail on that ground, if on no other. The want of possession is not, strictly speaking, jurisdictional, for the court has jurisdiction to consider and determine the subject-matter. It is a technical dilatory objection in the nature of matter in abatement. It simply defeats the present action, without regard to the merits. The party out of possession, upon this view, must first bring his action to get into possession; but this would not be a complete remedy against a party claiming title adversely. A recovery of possession might be had and the defendant still set up his claim, and make it necessary for the successful party to bring another suit to determine his adverse claim, and enjoin his silence, even though the first judgment might be conclusive evidence of his right on the trial of the second action. Having recovered possession, he would then be in a position to maintain his further action to obtain a complete remedy. If he brings his action to determine an adverse claim while out of possession the most that can be said is, that his action is prematurely brought, and on this appearing it would be dismissed, as it would be one valid ground of defense to this particular action. The statute has since been amended, both in Nevada and California-and in Nevada the act passed pending this action-so that a party out of possession can now, at least, maintain the action. But conceding a want of possession at the commencement of the action to be one good defense, there may be several other good defenses, and section 1112 of the Compiled Laws of Nevada provides, that "The defendant may set forth by his answer as many defenses and counter-claims as he has. They shall each be separately stated," etc. Thus all defenses, whether dilatory or to the merits, may be set up in the same answer and tried together. If it is admissible to set up several defenses in one answer, it must be competent for the court to try and determine them all. The law neither enjoins nor permits a vain thing to be done. But it would be doing

a vain thing to set up a defense which could not be tried when

set up.

It may not be necessary to dispose of all the issues, and sometimes, doubtless, all are not determined; but it is certainly admissible to do so, and if properly tried and deter