Original Consol Mining Co. v. Abbott

HUNT, District Judge (after stating the facts as above). My opinion is that the court has jurisdiction of the suit, and can determine the merits. Such a ruling can safely be put upon the ground that the defendant, having filed a cross-bill alleging possession in himself, and praying for equitable relief, has waived the question of jurisdiction. Small v. Peters (C. C.) 104 Fed. 401; Mining Company v. Mining Company (C. C.) 139 Fed. 838; Radcliffe v. Scrubbs, 46 Ark. 96; [683] Bates on Fed. Equity Procedure, § 386; Lowenstein v. Glidewell, Fed. Cas. No. 8,575; Daniell’s Ch. Plead. & Prac. § 1553; Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. Ed. 1021; Story’s Equity Pleadings, § 399. Upon the merits, complainant should prevail. The title in fee, as does the title of record, stands in the name of the Original Consolidated 'Mining Company. This title rests upon the patent of the United States, issued to complainant’s predecessors in interest on May 29, 1879, and also upon use and occupation of the ground under the surface for mining purposes. The presumptions in favor of the holder of a patent for a lode mining claim ate in favor of the right of possession and enjoyment of all the surface included within the lines of the location, and of all veins, lodes, or ledges throughout their entire depth, the tops or apexes of which lie inside of such surface lines extended downward vertically. Section 2322, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1425) ; Maloney v. King, 27 Mont. 428, 71 Pac. 469; Lindley on Mines, '§ 780. See, also, section 486, Code Civ. Proc. Mont. 1895 (Rev. Codes, § 6435). The burden of proof is upon defendant and cross-complainant, who claims by adverse possession. Section 486, Code Civ. Proc. Mont.; McConnell v. Day, 61 Ark. 464, 33 S. W. 731. A defendant and cross-complainant, claiming by adverse possession, must prove that his possession was notorious, exclusive, continuous, open, and adverse. Holtzman v. Douglas, 168 U. S. 280, 18 Sup. Ct. 65, 42 L. Ed. 466. The evidence sustains the finding by the master that J. E. Sandbergoccupied part of the surface of the mining claim as a tenant at will, recognizing the title of complainant’s predecessors in interest. Sand-berg never claimed any rights whatsoever, except as a tenant at will in subordination of his lessors. Defendant bought and took possession of the surface, and initiated any further rights that lie claims, in 1900. Under such a condition of facts, he cannot set up title even to the surface by adverse possession, unless he vacated and then retook possession, or did some act necessarily evincing his intention to put an end to the presumed relationship of a continued tenancy at will, and unless he held adversely for the period of 10 years. Section 487, Code Civ. Proc. Mont. 1895 (Rev. Codes, § 6436). The authorities sustain the principle that, in a case like this, where it is shown that possession at a certain time was held in subordination to the title of another, it will be presumed so to continue, and it cannot afterwards become adverse as against the latter without proof that it was held in hostility to such other’s title. It must also be shown that the possessor repudiated the permissive or subordinate character of the possession as it previously existed, and that the full period of limitation has expired since such repudiation. Warville on Ejectment, § 431. In Handlan v. McManus, 100 Mo. 124, 13 S. W. 207, 18 Am. St. Rep. 533, the Supreme Court óf Missouri said: “There is no doubt that possession, to be of any avail as a defense under the statute of limitations, nrast lie adverse, anil not subordinate to the true title. The possession cannot lie adverse so long as It is held under a lease or license. * * * ” Bond v. O’Gara, 177 Mass. 139, 58 N. E. 275, 83 Am. St. [684] Rep. 265; Anderson v. McCormick, 18 Or. 301, 22 Pac. 1062; Deputron v. Young, 134 U. S. 241, 10 Sup. Ct. 539, 33 L. Ed. 923. Defendant cannot tack the possession of Sandberg, which was not adverse, but permissive, to his own possession so as to let him acquire adverse title. Daveis v. Collins (C. C.) 43 Fed. 31; Sawyer v. Kendall, 10 Cush. (Mass.) 241. Believing these principles are applicable, complainant is entitled to a decree as prayed for in its complaint. So ordered.