Bohanon v. Howe

BRODERICK, J. This action was commenced in the district court in and for Lemhi county against the defendants for trespassing upon certain placer mining ground, for damages, and for equitable relief by injunction to restrain future trespasses. The case was tried by the court without a jury. [455] Judgment for the plaintiff, and defendants appealed. The plaintiff alleged, among other facts, that he was the owner, entitled to the possession, and had been in the actual possession, by himself and through his grantors, for more than fifteen years last past. The answer for the defendants denies the essential allegations of the complaint, and further alleges that the lands were, on the twenty-third day of March, 1885, vacant and unoccupied public lands of the United States, and subject to location under the laws thereof; and that said defendants then located all of said ground. Neither plaintiff nor defendants have alleged any facts as to citizenship. This seems to us to have been requisite. By the act of Congress of May 10, 1872, all valuable mineral deposits in lands belonging to the United States were declared to be free and open to exploration and purchase by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the laws, customs, and rules of miners in the several mining districts, so far as appli cable and not inconsistent with the laws of the United States. It is conceded that if this were an action in support of an adverse claim, and to determine the right of possession therein, it would have been necessary to , have pleaded and proved citizenship, or what is its equivalent, in such action. But it is contended that in an action for trespass upon mining ground and for damages by reason of such trespass it is unnecessary to show any fact in relation to citizenship. 'We cannot adopt this view. The record here shows that the legal title to the ground is in the United States. The right of possession is by the pleading made a material issue. Unless plaintiff can establish this right he cannot recover; and as a prerequisite he must show himself to be a citizen, or to have declared his intention to become such. (Rosenthal v. Ives, ante, p. 265, 12 Pac. 904; North Noonday Min. Co. v. Orient Min. Co., 1 Fed. 522; Hess v. Winder, 30 Cal. 355; Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. 97, 8 Pac. 621.) The objection was first raised in this court that the complaint herein does not state facts sufficient to constitute a cause of action. This objection may be taken at any time before final judgment. We think the point well taken, for the [456] reason hereinbefore given; but as the objection was not raised in the trial court, where the plaintiff would doubtless have been allowed to amend his pleading, we have concluded to reverse, with leave to either party to amend. The judgment is therefore reversed, and the cause remanded for a new trial, with direction to the court below to allow, on application, either party to amend generally. Hays, C. J., and Buck, J., concurring.