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tion, denied the allegations of the defendant and damages done by reason of the defendin relation to the location or appropriation of ant's acts. This was more than enough, unthe property by defendant or his predecessors, der the decision in Payne v. Treadwell, 16 and averred that, if there was any such loca- Cal. 221, where Judge Field reviewed the tion, there was an abandonment of the same earlier decisions of that state, and distinctly immediately thereafter, and that in 1877, the overruled those cases which recognized that land was public domain when appropriated some of the technical averments peculiar to by plaintiff and his predecessors. Plaintiff the old form of ejectment were still necesdenied all averments of abandonment and any sary under the Codes. It was said in that entry without authority. The cause came on case as follows: “Now, what facts must be for trial. When the plaintiff offered evidence proved to recover in ejectment? These onunder the causes of action set forth in his ly: That the plaintiff. is seised of the premcomplaint, the defendant objected, and the ises, or some estate therein in fee, or for life, objection was sustained, whereupon the plain- or for years, and that defendant was in their tiff's complaint was dismissed, and judgment possession at the commencement of the acentered in favor of defendant for costs. The tion. The seisin is the fact to be alleged. It plaintiff having elected to stand upon his com- is a pleadable and issuable fact, to be estabplaint, he appeals from the judgment entered lished by conveyances from a paramount against him.

source of title, or by evidence of prior pos

session. It is the ultimate fact upon which Smith & Word and J. E. Calloway, for ap

the claim to recover depends, and it is facts pellant. W. A. Clark, for respondent.

of this character which must be alleged, and

not the prior or probative facts which go to HUNT, J. (after stating the facts). The establish them. It is the ultimate facts,plaintiff has set forth in his complaint that which could not be struck out of a pleading he is now, and has been for some time, the without leaving it insufficient,-and not the owner of, and entitled to the possession of, evidence of those facts, which must be statand in the possession of, until interfered with ed. It is sufficient, therefore, in a complaint by the defendant, a certain piece of placer in ejectment, for the plaintiff to aver, in remining ground, more fully described in the spect to his title, that he is seised of the complaint. He then sets forth that the de- premises, or of some estate therein in fee or fendant claims the property by virtue of a for life, or for years, according to the fact. pretended placer location, but that such lo- | The right to the possession follows as a concation is without right, and casts a cloud up- clusion of law from the seisin, and need not on plaintiff's title. The suit is brought for be alleged.” The form of pleading has been damages for trespass, and by separate state- expressly approved by this court in McCaument to quiet plaintiff's title, and for further ley v. Gilmer, 2 Mont. 202, and in the opinion relief. The defendant denied the ownership on a rehearing in Davis v. Clark, Id. 394, and possession and right of possession of which was an action to try title and recover plaintiff, and pleaded a title to the premises possession of a quartz lode claim, wherein under the location of the same as the Hum- it was held that in actions of ejectment it is bug claim, and possession for a long time sufficient for the plaintiff to aver that he is back. The replication denied the new mat- seised of the premises, or some estate thereter in the answer. The district court held in; and the right of possession follows as a that the plaintiff's complaint was fatally de legal conclusion from the seisin. See, also, fective. The only question before us now, Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409; Biltherefore, is that of the sufficiency of plain- lings v. Sanderson, 8 Mont. 201, 19 Pac. 307; tiff's pleading. Does it state a cause of ac- Bank v. Roberts, 9 Mont. 328, 23 Pac. 718. tion? We think it does. The allegations of where Payne v. Treadwell, supra, is cited the first part of the complaint state a cause with approval. But it has been thought by of action in the nature of trespass to try many members of the profession that in suits title. The essential principles of pleading to try the title to mining property, as well and forms of procedure governing this action as in those to determine the right of possesare like those in actions in ejectment. Sedg. sion of such property by adverse claim, to & W. Tr. Title Land, $ 92; Greenl. Ev. $ state a cause of action it is necessary for the 303. If, therefore, the complaint under in- plaintiff to do much more than in ordinary vestigation was in its essential averments suits to try title, and to allege that he had good in ejectment, it should be held sufficient located the claim according to law, marked in this action, unless in suits involving title the boundaries, made discovery, made notice to placer mining premises different rules of of location under oath, and recorded the pleading control. The respondent cannot same. Relying on the accuracy of this proposeriously controvert the sufficiency of the sition, the respondent's counsel herein bases complaint herein under ordinary rules appli- his argument; and we presume it was upon cable to ejectment suits. It avers ownership, a like view that the district court founded right of possession, and the fact of posses- its order dismissing the plaintiff's complaint. sion of the placer ground, an entry by de- Doubtless this embarrassment as to forms fendant without consent of plaintiff, his min- of pleading has arisen largely because of the ing thereon, and threat to continue to mine, | opinion of the court by Judge Liddell in the case of Ducie v. Ford, 8 Mont. 233, 19 Pac. not necessary to aver the prior or probative 414. That was a suit to ensorce specific per- facts which go to establish them in order to formance of a verbal agreement, under which state the facts which constitute the cause of plaintiff's contended that defendant had action "in ordinary and concise language" as agreed to deed to plaintiffs a certain interest pertaining to real property generally, why in a mining claim, upon defendant's obtain- should a different rule govern in actions to ing patent therefor from the United States, try the title to mining property? We are not in consideration of plaintiffs abstaining from dealing with questions of proof on the trial, filing an adverse claim to defendant's appli- but are confining ourselves solely to those of


leged. A demurrer to the complaint was sus- fact of ownership, if at issue, then plaintiff tained upon two grounds; that the contract

must support his pleading by claim from a was void under the statute of frauds, and paramount source of title, or by evidence of that the plaintiffs had not alleged "every compliance with the mining laws of the Unitl'act which it was necessary for them to prove ed States and of the state. But in Ducie v. in order to have succeeded in their adverse Ford, supra, the court evidently overlooked claim had they filed one.” In discussing the the distinction between issuable facts neces. latter ground of demurrer, Judge Liddell sary to be alleged and those that are probasaid: “It is not enough for the complaint to tive, but which need not be alleged. This is allege that the mining laws had been com- also made apparent by the particular lanplied with, for such an averment is merely guage of the sentence supported by reference a legal conclusion; and so, also, is the al- to Payne v. Treadwell, supra. It was said, legation of the right of possession and own- for instance, upon the authority of Payne v. ership of the claim in dispute. Meyendorf v. Treadwell, that the allegation of the right of Frohner, 3 Mont. 323; Payne v. Treadwell, possession and ownership of the claim in dis16 Cal. 221. It is for the court to say, from pute is merely a legal conclusion, whereas the facts stated and proven, whether or not Judge Field's exact language is as follows: the law has been complied with to that ex- "It seems to us that the substance of a comtent which would have entitled the complain- plaint in ejectment under our practice is this: ants to the patent. In other words, it was *A. owns certain real property, or some innot only necessary for the complaint to show terest in it. The defendant has obtained that the plaintiffs made the discovery and lo- possession of it, and withholds the posses(ation, marked the boundaries of the mine, sion from him.' If the defendant's holding filed their notice and declaratory statement, rests upon any existing right, he should be with proper description with reference to compelled to show it affirmatively, in desome natural object or permanent monument, fense. The right of possession accompanies and that they were in possession as owners the ownership, and from the allegation of from the time of discovery; but it was indis- the fact of ownership, which is the allegation pensable and material for them also to set of seisin in ordinary language-the right of forth in their complaint that they were ei- present possession is presumed as a matter ther citizens of the United States, or had of law." filed their intention or declaration of becom- The allegation of ownership of a claim in ing so; and that up to the time of the appli- dispute is, therefore, not a mere conclusion of cation of the defendant for a patent for the law, and the language of the opinion in Ducie Olin claim they had complied with the law, V. Ford must be modified to harmonize with which required them to expend a hundred its misapplied authority,--Payne v. Treadwell, dollars a year in improving the mine.

supra,-and to our views herein. We obWhen, therefore, the complainants failed to serve, also, that while Chief Justice McConmake the allegations of their capacity to take nell concurred in the decision of Ducie v title, and of having done the necessary Ford, he limited his agreement to the single amount of work each year to represent the ground of the statute of frauds, thus expressmine, along with the other facts stated in ing no opinion upon the question of pleading. the complaint, they failed to set forth a cause The error into which the court fell in extendof action. The omissions were fatal to their ing the rule of pleading in Ducie v. Ford arose, suit. Indeed, it is impossible to tell from the evidently, from the earlier discussions by this complaint whether the plaintiffs have the court, of what constitutes the right of possesrequisite capacity to accept a title to the sion of a mining claim. We recognize that mine, even if decreed them by the court. To such right of possession comes only from a decide the case without this allegation, which valid location, and that, if there is no location, we cannot supply, would be doing a vain and there can be no possession under it. Nor do useless thing.” To a great extent, since that we lose sight of the rule laid down in Belk v. decision, pleadings in actions in the nature Meagher, 104 U. S. 284, that location does not of ejectment to try title to mining claims necessarily follow from possession, but poshave been incumbered with allegations con- session from location, and that a location is forming to the several matters held essential not made by taking possession alone, but “by to be pleaded in that opinion. Yet, if the working on the ground, recording, and doing principle is correct that seisin and possession wbatever else is required for that purpose by are the ultimate facts to be alleged, and it is the acts of congress and the local rules and

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regulations." But in pleading in actions of the “Welcome Stranger Lode." Then folthe nature of this it is not necessary to allege lowed averments to the effect that the adverse all those matters which are evidentiary, and claim of defendants was without right, and go to sustain the possessory title or ownership. fraudulent, and that in consequence of said It may be that the reasoning of Judge Lid- claim plaintiffs' placer ground was much dedell's opinion was based upon the attempt to preciated in value. It will be seen at once deraign title, and upon failure to do so in a that there is great similarity between the sufficient manner; but, whether or not the pleading in that case and the one in the case discussion proceeded on that theory, the case at bar. But the court there seemed to conhas been generally applied in all suits to try sider the location of defendants as a valid one, the title to mining property. The later de- although the complaint averred that it was cisions of California have followed Payne v. pretended. This assumption by the court raust Treadwell, supra, and it has been consistently have been warranted by the developments on held for many years that in actions to quiet the trial of that case, for, where the plaintiff title to mining claims and for injunctions own- alleges ownership and possession until ousted ership is the ultimate fact, and, as a general by the defendant, and alleges that the defendrule, it is sufficient to allege that in terms. See ant claims by virtue of a pretended location Souter v. Maguire, 78 Cal. 543, 21 Pac. 183, of the property, it cannot be assumed on the and cases cited; Johnson v. Vance, 86 Cal. 128, pleadings that the case is one of actual pos24 Pac. 863. It was also decided in Camp- session against a valid location. Tibbitts v. bell v. Rankin, 99 U. S. 261, that in an action Ah Tong, 4 Mont. 536, 2 Pac. 759, also disof trespass quare clausum fregit actual pos- cussed the right to occupy the mineral lands session of the land by the plaintiff is sufficient of the United States, but did not say to what evidence of the title to authorize a recovery extent the allegations of a pleading to try the against a mere trespasser. It is well to no- title must go. In Hopkins v. Noyes, 4 Mont. tice our own decisions cited by respondent as 550, 2 Pac. 280, which was a suit growing out bearing upon the question. In McKinstry v. of a conflict between a placer and quartz loClark, 4 Mont. 390, 1 Pac. 759, plaintiff cation, where plaintiff sued to have determined brought ejectment to recover possession of a the right of possession of ground in dispute, mining claim. We have examined the original the court merely reiterated its previously extranscript, and find that the complaint simply pressed views upon what possession is necesaverred that plaintiff "was the owner of and sary to give vitality to a title within a mining seised of an estate in fee as against all per- district, and said that such title must be in sons but the government of the United States, pursuance of the law and local rules and reg. and possessed and entitled to the possession ulations, and must be properly supported. of the real property hereinafter set forth, and "Possessory titles,” said Wade, C. J., "do not that, while plaintiff was so the owner, and so live upon possession alone. They must be seised, defendants entered," etc. Noyes V. supported by proof of a compliance with the Black, 4 Mont. 527, 2 Pac. 769, was an action law that gives the right to and sustains the to quiet title to the premises described in the possessions.” But it was not decided that, in plaintiffs' complaint. The court considered the order to permit such proof of a compliance with attitude of one claiming by actual possession the law, the complaint must contain allegaagainst a valid location. It was decided that tions of the facts upon which such possessory the plaintiffs by virtue of possession alone title is based. In Garfield M. & M. Co. v. could not hold mining ground as against a Hammer, 6 Mont. 54, 8 Pac. 153, which was valid location of the same ground, and, after an action to quiet title, the court said that, laying this rule down, the court proceeded to where respondent's claim of ownership and sustain the doctrine of Belk v. Meagher, here- right of possession were put in issue by antofore cited. But, although the court in Noyes v. swer, it devolved upon the respondent plaintif Black said the plaintiffs must prove they made to show affirmatively on the trial that it had à valid location by taking possession and by à valid location of a mining claim by comply. working on the ground, recording, and doing ing with all the requirements of the act of conwhatever else was required for that purpose gress and the local rules and regulations relby the acts of congress and local rules and ative to mining claims. The sufficiency of regulations, it did not say that such matters the pleading was not discussed. Renshaw v. of proof, or any of them, must be specifically Switzer, 6 Mont. 464, 13 Pac. 127, was an acalleged in the plaintiffs' complaint. We have tion in the nature of ejectment to recover postaken the pains to examine the original tran- session of a lode mining claim. The court descript in the case of Noyes y. Black, and find cided that it was enough for the claimant to that that complaint likewise simply alleged show a valid location, and that the plaintiff that the plaintiffs, as tenants in common, were need not show that his claim had been repre. the owners of, in the actual possession of, and sented, but that his title was good after showentitled to the possession of, a piece of placer | ing a valid location, and he was entitled to the ground described in the complaint, and that possession of the claim unless the appellant the defendants claimed an estate in the said | defeated such title, which he might have done ground adverse to the plaintiffs', but that said if he had alleged and could have proved a foradverse claim of the defendants was based feiture by showing that the necessary work to upon a pretended location of a lode claim called i represent the claim had not been done. We have examined the original complalnt in this discussion by affirming the California doctrine, case also, and it does not sustain the conten- believing it to be in accord with the principle tion of respondent's counsel herein to the ef- which should control the form of pleadings unfect that, if it is necessary to show a valid der the Codes, and hold that the ultimate facts location in order to show a possessory title and alone need be pleaded. Pom. Code Rem. § 107. ownership, it is necessary to allege the prior The defendant makes a point on the alleged facts upon which such valid location may be insufficiency of the description of the placer predicated. The complaint in Renshawy. Switze claim involved. But, without setting forth in er simply alleged that plaintiffs were, and for full the description given, we do not think it a long time prior to the commencement of the was so indefinite as to render the complaint suit had been, the owners and entitled to the fatally bad, or void for uncertainty, upon a possession of the mining claim described in the motion of the character interposed by defendcomplaint; that while they were the owners

ant. In the second cause of action set up by defendants took possession, and ousted them, the plaintiff,-which was for the purpose of and still held possession, to the plaintiff's dam- quieting title and for an injunction,—the plain. age, etc. Mattingly v. Lewisohn, 8 Mont. 259, tiff, by reference, merely made the averments 19 Pac. 310, was a statutory action brought of ownership pleaded in the first cause of acunder section 2326 of the Revised Statutes of tion and the description of the premises part the United States. It was decided that in an of the second cause of action. Inasmuch as action brought under the Revised Statutes au- the cause must be remanded to the district thorizing steps to be taken by an applicant court, we advise the plaintiff to follow the gen. for a patent for mineral lands, and by an ad- eral rule that each separate division or count verse claimant who resists such application, of the complaint must be complete in itself, it was indispensable for the plaintiff to file his and that the pleader, by merely referring to claim within the 60 days allowed by law, or material facts properly set forth in a former he would bave no standing as an adverse claim- count, cannot incorporate them into and make ant in the land office; and that, if he failed to them part of a subsequent one. Pom. Code institute suit within 30 days allowed by law, Rem. § 575. This rule should not be extended he had no standing in court to contest the to the inclusion of a description of the propclaim of another to a patent for mineral lands; erty itself, nor to a point requiring exhibits to and that, inasmuch as the fact of the filing of be repeated, but it should be held to embrace the adverse claim and the institution of the those material and issuable facts of ownersuit within the time limited by law must be ship which constitute the plaintiff's action. conclusively established by proof to enable the The judgment of the district court is therefore adverse claimant to recover, it was necessary reversed, and the cause is remanded, with dito allege these facts, and that a complaint with- rections to overrule the objection of the deout such allegations was insufficient.

fendant, which was sustained by the district plied to actions of the class to which Matting. court, and to permit plaintiff's complaint to ly v. Lewisohn belongs, we believe that to be stand, granting him permission to amend his correct in order that it may appear that the pleadings so as to conform to the views herein court had jurisdiction to proceed with the case; expressed. Reversed and remanded. but such averments of fact have nothing directly to do with the title or right of possession

PEMBERTON, C. J., and BUCK, J., concur to the property involved, and are not probative facts of the ownership of the plaintiff.

(5 Kan. A to Therefore, whatever was said in that opinion

CANINE et ux. v. FINNUP.' by Judge De Wolfe for the court has no bear

(Court of Appeals of Kansas, Southern Depart ing upon the question immediately in band.

ment, W. D. May 20, 1897.) Milligan v. Savery, 6 Mont. 129, 9 Pac. 894, Sale Of Homestead FOR Taxes-REMEDY UNDEI. simply decided that in an action brought under

Tax DEED. section 2326, Rev. St. U. S., to determine the Where real estate occupied as a homestea.? right of possession of a mining claim, plain- has been sold for taxes, and a tax deed issued tiff must allege possession in himself, or a

and the holder thereof asserts his title by ejeci.

ment, and his tax deed is declared void, he maj valid representation, which is possession; and have judgment for the lawful amount due, thi an ouster by the defendant, if plaintiff is not same declared a lien, and the real estate sold to in possession, must always be shown, and to satisfy the same. that end must be averred. We find, there.

(Syllabus by the Court.) fore, that in so far as any of the foregoing

Error from district court, Finney county: cases do bear upon the case at bar, with the A. J. Abbott, Judge. exception of Ducie v. Ford, they not only do Action by George W. Finnup against WIInot conflict with Payne v. Treadwell, and the liam B. Canine and wife. Judgment for other California decisions since Payne v. plaintiff. Defendants bring error. Affirmed. Treadwell, in respect to pleading, but that the B. W. Lemert, for plaintiffs in error. H. original complaints therein substantially fol. F. Mason, for defendant in error. lowed that case, and that the prolix rule laid down in Ducie v. Ford was never before actu- SCHOONOVER, J. This is an action in ally observed by the profession in the cases ejectment, commenced by the defendant in brought before this court. We conclude this error, claiming title by tax deed, against plain

i Rehearing Dending.

As ap

tiffs in error, to recover certain real property sold, the successful claimant shall be adjudg. in Garden City, Finney county, Kan. The ed to pay to the holder of the tax deed, or case was tried by the court without a jury, the party claiming under him by virtue of and the court made special findings of fact such deed, before such claimant shall be let and of law; and thereupon the court found into possession, the full amount of all taxes that the plaintiff was not entitled to recover paid on such lands, with all interests and costs the possession of real property, but that he as allowed by law up to the date of said tax was entitled to a lien for the amount of deed, including the costs of such deed and the taxes, lawful charges, and interest.

recording of the same, with interest on such Several errors are assigned. From a care- amount at the rate of twenty per cent. per ful reading of the pleadings, and the court annum, and the further amount of taxes paid having found the tax deed void, we think no after the date of such deed, and interest error was committed in overruling the demur- thereon at the rate of twenty per cent. per rer, or in overruling defendants' objection to annum.” This paragraph and paragraph the introduction of testimony.

6991 were considered by the legislature at the The tax deed of plaintiff below having been same time. They are a part of the same act. declared void, did the court err in adjudging The intention of the law is "that the land the amount due him for taxes, interest, pen- shall be responsible for the tax." While this alties, and costs a lien upon the land, and in paragraph does not in express terms say that ordering the land sold to satisfy the lien the holder of a tax deed, plaintiff or defendwhen the land was owned and occupied by ant, when defeated in an action in ejectment, plaintiffs in error as their homestead? While shall have a lien on the land, it does provide our constitution provides that the homestead that, before the successful claimant shall be shall be exempt from forced sale under any let into possession, he must pay the full process of law, and shall not be alienated amount due. Our supreme court, in giving without the joint consent of husband and force to this paragraph, has declared the lawwife, it also provides that “no property shall ful amount due to be a lien; and the court be exempt from sale for taxes." Const. art. may order the land sold to satisfy the same. 15, § 9. It is clearly understood that the Russell v. Hudson, 28 Kan. 99; Arn v. Hophomestead shall be taxed as other real estate pin, 25 Kan. 108. of like value, and the laws applicable to the It is contended by plaintiff in error that taxation of real estate generally apply with while the homestead may be sold for taxes, equal force to the homestead. A lien for all and a tax deed issue which shall vest in the taxes attaches to real estate occupied as a grantee an absolute estate in fee simple, yet homestead on the 1st day of November in when he asserts his title by ejectment, and the year in which such taxes are levied, and his tax deed is declared void, he may have such lien continues until discharged by the judgment for the amount legally due him, but owner of the property or other person liable the court trying the case has no authority to pay the same. Gen. St. 1889, par. 6934. to declare the same a lien on the homestead, If not paid, the homestead may be sold as for the constitutional reason that the homeother real estate, to satisfy the taxes, pen- stead is exempt from forced sale under any alty, charges, and interest which may have process of law, and cannot be alienated withaccrued thereon; and, if not redeemed within out the joint consent of husband and wife. three years from the day of sale, a tax deed This is not correct. That the home of a citiis executed to the purchaser, his heirs and zen may be protected, that he may be proassigns, which shall vest in the grantee an tected, that the homestead may be protected, absolute estate in fee simple in the real es- a revenue is necessary, and for this purpose tate the homestead--thus sold.

the constitution has provided that no property 6991. A citizen of this state must pay the shall be exempt from sale for taxes. This taxes lawfully assessed against his homestead, includes the homestead, and the laws relator, by due process of law, an absolute estate ing to the sale of real estate for taxes apply in fee simple therein, by tax deed, will pass with equal force to real estate occupied as a to the person who will; and the holder of the homestead. Our supreme court having detax deed may maintain an action in eject- clared, in ejectment, under paragraph 6996, ment to recover the land. Should he fail in Gen. St. 1889, the lawful amount found due his action, our statutes provide (paragraph the holder of a void tax deed to be a lien on 6996, Gen. St. 1889): "If the holder of a tax the real estate sold, we conclude that real deed, or any one claiming under him by vir- estate occupied as a homestead is subject to tue of such tax deed, be defeated in an action the same law, and not exempt. The judg: by or against him for the recovery of land ment is affirmed. All the judges concurring.

48 P.-63

Id. par.

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