It is further argued, on the part of the complainant, that the Statute of Limitations does not apply, because the title is in the United States, and such statutes do not run against the government; and Gibson v. Chouteau, 13 Wal. 92, is cited to sustain the position. Bat this case can have no application, for, as we have seen, the party who is the owner of the mining claim as against everybody but the United States, under the laws of the State or Territory, and the rules and regulations of the locality embracing the mine, irrespective of the act of Congress, is the party entitled to a patent; and the Statutes of Limitations of the State or Territory applicable to the subject themselves constitute a part of the laws by which the right to a mining claim is to be determined, for the purpose of ascertaining who is the party upon whom the right to purchase is conferred by the act of Congress. Such statutes, as we have seen, are expressly recognized by section 13 of the act of Congress as a part of the laws by which the right to a patent is to be determined.

So, again, it is urged that there was a trust, or confidence, reposed in the defendant and its grantors by complainant and its grantors, as tenants in common, which precluded the defendant from acquiring the title except for the benefit of all. This proposition is also untenable. According to the allegations of the bill there was a valid parol partition and segregation of the interests of the parties executed and followed by exclusive possession in pursuance of such partition. Such fartitions are doubtless, valid. (Long v. Dollarhide, 24 Cal. 218.) Thus the parties by this partition ceased to be tenants in common, and forever after dealt at arm's length. Besides, the taking possession of the whole under conveyance from the former locators, claiming to own the whole, and excluding the complainant and its grantors, was a hostile act, which constituted an ouster, and set the Statute of Limitations in motion. It certainly will not be claimed that one tenant in common can not oust his co-tenant and by long-continued adverse possession bar his right. But, as we have seen, the parties had ceased to be tenants in common.

After a careful consideration of the case, I am satisfied that the right of the defendant as against the complainant was conclusively adjudicated in the former action, and that the

patent properly and rightfully issued to the defendant in its own right. It is, therefore, unnecessary to consider the question as to the conclusiveness of the patent upon the other grounds argued. If, however, the procuring of a patent in a proceeding in all respects regular in its forms in the mode pointed out by this statute, where no fraud has intervened in the course of the proceedings, can not be regarded as a proceeding in rem, or in the nature of a proceeding in rem, and be conclusive upon all the world, then, in my judgment, the statute ought to be speedily so amended as to make it such a proceeding and conclusive. So, also, if there is any care wherein the doctrine of res adjudicata should be carried to its utmost limit, or where the Statute of Limitations should be rigorously applied, it is this class of cases. There certainly

can be no class of cases wherein it is more to the interest of the public that there be an end of litigation. Happily, in this case, as I view it, the question of title appears to have been adjudicated within the most limited scope of the rule of law invoked. I can not close this opinion without expressing my obligations to the counsel on both sides for the very able, thorough and exhaustive printed arguments furnished-arguments every way wor hy the importance of the questions involved and the very large pecuniary interests at stake.

Let the demurrer be sustained and the bill dismissed.

FREMONT ET AL. V. SEALS ET AL.

(18 California, 433. Supreme Court, 1861.)

Admissions in answer which negative denials. In case the admissions ot an answer contradict its general denials the latter may be disregarded. Possessory claim can not defeat patented title. Title resting upon mining rules and regulations can not avail against a title held by patent from the United States, confirming a Mexican grant, which patent carries with it the ownership of the minerals which the premises contain.

Miners not actual settlers. The eleventh section of the act, "For the protection of actual settlers," etc., can not be invoked by miners engaged simply in extracting gold from a quartz vein.

Admissions in plea of limitation. The defendants in an action of ejectment pleaded occupation and possession by themselves for more than five years last past and for more than two years from the date of the issuance of the patent" to plaintiff. Held, that this was an admission that plaintiff was seized of the premises within five years.

Appeal from the thirteenth district.

The facts appear in the opinion of the court. Defendants appeal.

E. Cook, for appellants.

C. T. BOTTS, for respondents.

FIELD, C J., delivered the opinion of the court, BALDWIN, J., and COPE, J., concurring.

The court below rendered judgment for the plaintiffs upon the pleadings in the case, and the only question presented for consideration relates to the correctness of its ruling in this respect. The action is ejectment for the possession of certain premises in Mariposa county, title to which the plaintiffs assert under a patent of the United States, issued to Fremont, bearing date on the nineteenth o February, 1856. The defendants in their answer deny, generally, the allegations of the complaint, and at the same time admit the issuance of the patent, and that it embraces the premises in controversy. They disclaim all interest in the premises except in a certain quartz vein which the premises contain, and this vein they allege was taken up by them, or by parties through whom they claim, and is now held, in accordance with the mining laws, customs and regulations respecting claims to quartz veins, established and in force in Mariposa county. They also allege that they, or the parties through whom they claim, have occupied and held their respective interests in the vein for more than five years "last past," and for more than "two years from the date of the issuance of the patent;" that they entered upon the same without "actual force or fraud," and that their "interests" were not then and have not been since inclosed by any other parties. They also allege fraud

and misrepresentation in the survey and location of the grant upon which the patent issued, which it is unnecessary to notice, as those matters were the subject of elaborate consideration in the case of Boggs v. Merced M. Co., 14 Cal. 279, and were there held inadmissible against the patent in an action of ejectment.

The admissions in the answer negative its general denials, and the latter in such case may be disregarded and judgment asked upon the former, the complaint being verified. The patent carries with it the ownership of the minerals which the premises contain. Title resting upon mining rules and regulations can not avail against the paramount proprietor-the United States-and as a consequence can not against parties who claim by conveyance from the United States. Moore v. Smaw, 17 Cal. 200; Boggs v. Merced M. Co., 14 Id. 280.

The eleventh section of the act "For the protection of actual settlers and to quiet land titles in this State,” of March, 1856, can not be invoked by the defendants. That act was passed, as its title indicates, for the protection of settlers, and the eleventh section applies only to "persons settled upon and occupying any part of the land patented." The defendants are miners, engaged simply in extracting gold from a quartz vein. They are not "settled upon" their vein in the sense in which the words of the statute are used. They have not the settlement which the law contemplates and intended to protect. From the whole tenor of the act it is apparent that it was passed for the benefit of those who are desirous to build up homes in the country, and for that purpose are seeking in good faith lands for settlement and occupation.

Nor will the act of April, 1855, aid the defendants. A)though they allege possession in themselves or the parties through whom they claim for five years "last past," and assuming for the purposes of this case that this is equivalen: to an allegation of possession for five years before the commencement of the action, they admit the issuance of the patent to Fremont on the nineteenth of February, 1856, and thus that he was seized of the premises within that period. Judgment affirmed.

THE GOLD HILL QUARTZ MINING Co., Appellant, v. Isi,

Respondent.

(5 Oregon, 104. Supreme Court, 1873.).

Recognition of miners' rights by the government before the enactment of any express statute, stated.

Title in U. S. It is a conceded doctrine that mines of precious metals "belong to the eminent domain of the political sovereignty."

By the mining act of 1866 the general government extended to all in possession of mining claims, and to all subsequently locating and denouncing mines containing the precious metals, a guaranty of protection in their occupancy so long as the mines are operated and worked.

1 Locator not compelled to patent. There is nothing in the mining act imposing an obligation on the locator of a claim to proceed and enforce a patent.

Facts of the case-Agricultural paʼent void as against pre-existing mining claim. The appellant held a lode mining claim located in 1865. In 1870, respondent procured an entry of the quarter section on which the farm was situated, upon which entry an agricultural patent issued to him in the same year. The application was unknown to the lode claimant who was at the time in possession working the claim. Held, that the patent was void as to such mining claim and passed no title thereto; Second, that as the patent was void as to such claim its holder could not be declared a trustee for the rightful occupant.

Mineral lands. The returns of the surveyor are not conclusive as to the mineral character of lands.

266 Known mineral deposits 99__3 3 Notice of possession. Open and notorious possession (by mining) is sufficient to charge an applicant for patent with notice of the mineral character of land and to bring such land within the description of "known mineral deposits."

Appeal from Jackson County.

This suit was instituted to quiet the title to and enjoin the respondent from asserting any rights in and to a certain goldbearing quartz lode situate in Jackson county. The complaint alleges that Henry Klippel, John McLaughlin, Charles S. Drew, N. C. Dean, Thomas Chavner and John E. Ross, on December 5, 1865, located six claims upon the said lode in accordance with the provisions of the State laws and the local

1 Chapman v. Toy Long, 1 M. R. 497.

2 Sullivan v. Iron Silver Co., 109 U. S. 550; Reynolds v. Iron Silver Co., 116 U. S. 687.

3 Lentz v. Victor, 12 M. R.