South End Mining Co. v. Tinney

By the Court, Murphy, C. J.: This case came before this court on appeal from an order of the district court sustaining a demurrer to the answer. The judgment was reversed, and cause remanded. (22 Nev. 91.) Upon the trial in the court below, the plaintiff prevailed, and the defendants appeal. The appellants contend that the court erred in permitting the plaintiff to introduce its patent in evidence over their objection, because the same was immaterial, and contradicted the averments of the complaint and admissions of the answer. The action was commenced to recover the; possession of a mining claim. The complaint alleged that the plaintiff “ is now, and ever since the 29th day of March, 1888, has been, the owner in fee simple of the ground in dispute.” The defendants admitted that the plaintiff had purchased the ground in controversy from the government of the United States, but set up as a defense that the patent had been procured by fraud. They also pleaded the statute of limitation and title by prescription, alleging that they and their grantors had been in possession of the premises since .January, *226 1887. On the trial the plaintiff gave in evidence a patent of the United States for the ground in controversy, bearing date of the 7th day of February, 1891. The object of the action of ejectment is the recovery of the possession of real property; and the variance between the date of the alleged seisin and right of possession as set forth in the complaint, to wit, the 29th day of March, 1888, and the date of its patent, February 7, 1891, is immaterial, the latter date being previous to the commencement of the action. (Yount v. Howell, 14 Cal. 468; Stark v. Barrett, 15 Cal. 364.) The appellants contend that the court erred in deciding that the statute of limitations did not commence to run against the plaintiff’s cause of action until the issuance of the patent. They argue that the statute was set in motion on the payment of the purchase price of the land, and hence the plaintiff’s right of action is barred. A glance at the decided cases by the supreme court of the United States will show that this contention is unsustainable in law. It has been held by the secretary of1 the interior and numerous decided cases that, by the mining laws of the United States, three classes of title are created: (1) Title in fee simple; (2) title by possession; (3) the complete equitable title. The first vests in the grantee of the government an indefeasible title, while the second vests a, title in the nature of an easement only. The first, being an absolute grant by purchase and patent without condition, is not defeasible, while the second, being a mere right of possession and enjoyment of profits without purchase and upon conditions, may be defeated at any time by the failure of the party in possession to comply with the condition. The equitable title accrues immediately upon purchase, for the entry entitles the purchaser to a patent. The inquiry then is as to who holds the legal title to the mining ground in question. There can be but one answer to this question, and that answer must be that the title remains in the original owner, the government of the United States, and there remains until it is vested by the government in its grantee. This results from the laws, rules, and regulations for the sale and disposal of the public lands, and is the rule of decisions affirmed by the courts of last resort all over the United States; and they universally hold “that congress has the *227 sole power to declare the dignity and effect of titles emanating from the United States, and the whole legislation of the government in reference to the public lands declares the patent to be superior and conclusive evidence of the legal title.” Until it issues, the fee is in the government, which by the patent passes to the grantee; and until it is issued, the statute of limitations does not run against the legal title. The judgment and order appealed from are affirmed. Belknap, J.: I concur.