104 U. S. 279; 1 Mor. Min. Rep. 510; Gwillim | McKeon v. Bisbee, 9 Cal. 137; 2 Mor. Min. v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 217. Possessory rights to mining claims are property in the fullest sense of the word, and can be sold, transferred, mortgaged and inherited without infringing the title of the United States. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; Broder v. Natoma Water & M. Co., 101 U. S. 276; 50 Cal. 621; 4 Mor. Min. Rep. 670; 5 Mor. Min. Rep. 33; Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510. (See 3 Mont. 65.) Sullivan v. Iron Silver M. Co., 143 U. S. 431. Rep. 309. 224. Possessory title to a mining claim is not such a title as may be made the subject of a bill for partition, unless so provided by a State statute, in which case the bill should be filed in a State court. Strettell v. Ballou, 3 McCrary, 46. 225. The right to a mining claim held by a possessory title is such property as may be made the subject of partition. Gillett v. Gaffney, 3 Colo. 351; Sears v. Taylor, 4 Colo. 38; Filmore v. Reithman, 6 Colo. 124; McKeon v. Bisbee, 9 Cal. 137; 2 Mor. Min. Rep. 309; Watts v. White, 13 Cal. 324; Merritt v. Judd, 14 Cal. 59; Lowe v. Alexander, 15 Cal. 302; Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 241; Spencer v. Winselman, 42 Cal. 479; Dall v. Confidence S. M. Co., 3 Nev. 531; Aspen M. & Sm. Co., 28 Fed. Rep. 220 (Colo.). 226. Possessory title to a mining claim is property which may be shown to have sufficient value to entitle the claimant to appeal. Sparrow v. Strong, 3 Wall. 97; 2 Mor. Min. Rep. 320. 227. The same rules of law relating to estoppel in pais apply to mining ground as any other real estate claimed under a similar 218. In California claims to public min- kind of title. Kelley v. Taylor, 23 Cal 11 eral lands are recognized as titles-as legal estates of freehold for all practical purposes. Merritt v. Judd, 14 Cal. 59 (1859-60); Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 241. 219. The interest of a decedent in a mining claim held under possessory right descends to his heirs. Keeler v. Trueman, 15 Colo. 143; 25 Pac. Rep. 311. 220. The statutes of Montana which regulate the descent and distribution of real property are applicable to quartz lodes. Carhart v. Montana Mineral, etc., 1 Mont. 245. (1863). 18. Possession. 228. Mere possession of mineral land, not based on a location, is good title as against a mere intruder, but not against one who has made a location of the land in the manner prescribed by law, and the possession of such a locator may prevail over such prior possession. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; Sparks v. Pierce, 115 U. S. 408; Chapman v. Toy Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497; Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. 75; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217; Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53; Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341; Horswell v. Ruiz, 67 Cal. 111; 7 Pac. Rep. 197; 15 Mor. Min. Rep. 488; Garthe v. Hart, 73 Cal. 541; 15 Pac. Rep. 93; 15 Mor. Min. Rep. 492; Neuebaumer v. 223. Possessory title to a mining claim is Woodman, 89 Cal. 310; 26 Pac. Rep. 900; such property as may be sold on execution. | Golden Fleece G. & S. M. Co. v. Cable Cons. 221. Where all the rules, laws, regulations and customs with reference to a mining claim have been complied with, a property right. prior to the issuance of patent, has been acquired that can be transferred or inherited. Suessenbach v. First National Bank, 5 Dak. 477; 41 N. W. Rep. 662. 222. A mining claim is property and may be sold. Suessenbach v. First National Bank, 5 Dak. 477; 41 N. W. Rep. 662. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 229. Possession and occupancy of public lands for the purpose of working a stone quarry thereon confer no rights as against the United States or others having a valid claim under its laws. Keller v. Bullington, 11 L. D. 140. 235. Actual possession and occupation of mineral land for mining purposes, even though not under a valid location, will preserve the land so possessed and occupied from location by another. North Noonday M. Co. v. Orient Co., 6 Sawy. 299-503; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. 236. Mere possession of a mining claim, whether based on a valid location or not, will prevent a valid location thereof by other parties. Weise v. Barker, 7 Colo. 178; 2 Pac. Rep. 919; 2 West Coast Rep. 108. 237. Possession is not equivalent to location. Garfield M. & M. Co. v. Hammer, 130 U. S. 291. See S. C.. 6 Mont. 53; 8 Pac. Rep. 153. 238. Two kinds of possession of mining ground are recognized: 1st. That of mere actual occupation independent of a location, which is good as against one having no better title. 2d. That given by compliance with the 230. Possession of a mining claim, to be of effect, must be that arising from a compliance with the law. Possession without location carries no title, nor does possession under a location which has not properly been maintained. "The mere naked possession of a mining claim upon the public lands is not sufficient to hold such claim as against a sub-law regarding location. In the first, the ocsequent location, made in pursuance of the law, and kept alive by compliance therewith." Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510. (See 3 Mont. 65.) Patterson v. Tarbell, 26 Oreg. 29; 37 Pac. Rep. 76; Sweet v. Webber, 7 Colo. 443; 4 Pac. Rep. 752; 4 West Coast Rep. 116. 231. The right to the exclusive possession of mineral land not actually held in possessio pedis may be acquired only by a legal location thereof. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) 232. Prior possession without location is good as against one subsequently taking possession in the same way. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202. 233. Entering upon premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amounts only to trespass, and cannot form the basis for the acquisition of title. Lebanon M. Co. v. Consolidated Republican Mtn. M. Co., 6 Colo. 380; Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496. 234. Occupancy of land for mining purposes will prevent a valid location thereof. Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 693; 15 Mor. Min. Rep. 631.) cupation must be an actual possessio pedis; in the second it may be constructive. Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 393; 15 Mor. Min. Rep. 458.) 239. Mere possession of mineral lands not based on a location is good as against one having no better title, but such possession must be actual and will not extend constructively to the full extent of a mining claim. Zollars & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 5 Fed. Rep. 172; 4 Mor. Min. Rep. 407. 240. In actions of ejectment or trespass, possession by plaintiff has always been held prima facie evidence of the legal title, and as against a mere trespasser it is sufficient. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. (Citing 2 Greenl. Ev., sec. 311; Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. 305; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217.) 241. Mere possession of a mining claim will be protected as against one having no better title. Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347; Crossman v. Pendery, 2 McCrary, 139; 8 Fed. Rep. 693; 1 Colo. Law Rep. 496; 4 Mor. Min. Rep. 431; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202. 242. One in the actual possession of real estate may rely on possession alone until his adversary shows a better title. Hawxhurst | 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 v. Lander, 28 Cal. 331; 12 Mor. Min. Rep. 214; Iron Silver M. Co. v. Cheesman, 116 U. S. 529. Mont. 65. 254. After a legal location, neither a continuous actual occupation, nor a possessio 243. Actual possession is good title as against one who has not made a valid loca-pedis, are necessary to obtain possessory title. tion. Gregory v. Pershbaker, 73 Cal. 109; 14 Pac. Rep. 401; 15 Mor. Min. Rep. 602. 244. Mere possession of mining ground without location is good as against an intruder who made no location. Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900. 245. One in the actual possession of land as a mining claim has good title as against one who does not show title acquired by compliance with the law and the mining rules of the district. Shafer v. Constans, 3 Mont. 369; 1 Mor. Min. Rep. 147. 246. Possession is sufficient to maintain trespass or ejectment against a stranger, but not against one who has the right of possession. Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769. 247. Possession of mineral lands is good against strangers except where held for grazing, and entered upon for mining purposes (prior to 1866). Lentz v. Victor, 17 Cal. 271; Rupley v. Welch, 23 Cal. 453. 248. In possessory actions proof of possession of a mining claim is prima facie evidence of title. Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347; Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 380; Sears v. Taylor, 4 Colo. 38; Funk v. Sterrett, 59 Cal. 613; Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769. 249. Possession constitutes of itself title. Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 188; 1 Mor. Min. Rep. 17. 250. Possession of itself is property. Brennan v. Gaston, 7 Mor. Min. Rep. 426. 251. Payment of taxes by the adverse possessor is essential to the obtaining of title by adverse possession. Tuffree v. Polhemus, 108 Cal. 670. 252. It is presumed in the absence of evidence that parties in possession of mining claims hold them according to the rules and customs of the miners in the district. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196. Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 111; 4 West Coast Rep. 663; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202. 255. Actual possession of a portion of a mining claim, according to the custom of miners in a given locality, extends by construction to the limits of the claim held in accordance with such custom. Hicks v. Bell, 3 Hepburn, 220 (1853). 256. A mining claim on the public domain may be held by occupancy and exercising control by marking the boundaries by monulocal mining customs. Hess v. Winder, 30ments, or by occupancy in accordance with Cal. 349; 12 Mor. Min. Rep. 217 (1865). 257. One attempting to hold by prior possession without reference to local mining customs must give notice to others by actual physical marks or monuments. If this is not done, he can only hold to the extent of the land actually occupied and worked, as against others. Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217 (1865). 258. The physical marks sufficient to serve as notice of the possession of a mining claim must be sufficient to be found by one honestly concerned to discover whether the land has been previously appropriated for mining pur Min. Rep. 217 (1865). poses. Hess v. Winder, 30 Cal. 349; 12 Mor. 259. When a claim is distinctly marked, possession covers the whole claim thus marked. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202. 260. A party claiming mining ground not actually possessed, and beyond the possessio pedis, must show his right thereto by constructive possession, and he can show such constructive possession only by physical works and monuments, or by local mining laws and rules, and compliance therewith. Roberts v. Wilson, 1 Utah, 292; 4 Mor. Min. Rep. 498. 261. Posting a notice on a five-sided tract claimed for mining, and marking three of its corners, in the absence of any mining dis253. The law does not make actual posses-trict rule is not a valid or sufficient location sion necessary for the protection of the title or possession. Hess v. Winder, 30 Cal. 349; acquired by a valid location. Belk v. Meagher, | 12 Mor. Min. Rep. 217 (1865). 3 Mont. 65. 262. Actual occupation in person or by mains in the United States. Belk v. Meagher, agent is not essential to constitute possession. | 104 U. S. 279; 1 Mor. Min. Rep. 510. See S. C., Cultivating or working is sufficient. Quicksilver M. Co. v. Hicks, 4 Sawy. 688; 11 Mor. Min. Rep. 98. 263. Possession is sufficient to maintain title during the period necessary to perfect the location. Erhardt v. Boaro, 113 U. S. 527: 4 Mor. Min. Rep. 432; Crossman v. Pendery, 2 McCrary, 139: 8 Fed. Rep. 693; 1 Colo. Law Rep. 496; 4 Mor. Min. Rep. 431. 264. Mining claims are held by possession regulated by usage. Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. 305. 265. Where the title of the respective claimants to public land is based upon possession alone, the older possession gives the better right, whether for agricultural or mining purposes. Gibson v. Puchta, 33 Cal. 311 (1867). 266. As between two conflicting locations, both defective, the prior locator has the superior right of possession, and may enforce it in an action of trespass. Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900. 267. In questions involving the right of possession, proof of prior occupancy, and especially when accompanied by a deed showing color of right, should not be rejected by the court. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. 268. The actual possession of a miner is not restricted to his possessio pedis. Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. 305. 269. The acts required as evidence of possession of mining claims are those usually done. A miner may hold possession by his agents or servants. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 411; 4 West Coast Rep. 663. 270. Long-continued undisputed possession of a mining claim may raise the presumption that it was based upon a valid location. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178; Atwood v. Fricot, 17 Cal. 38; 2 Mor. Min. Rep. 305; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217. 271. The possession of mineral lands is separable from the fee. Congress provided for the existence of an exclusive right to the possession, while the paramount title re 272. Possession and right and power to purchase are inseparable. Tibbitts v. Ah Tong, 4 Mont. 536. 273. The owner of a mining claim may continue to hold his claim under possessory title, and need never make entry therefor if he does not wish to do so. Black v. Elkhorn M. Co., 52 Fed. Rep. 859. 274. Valid possession shown is presumed to continue. Gropper v. King, 1 Pac. Rep. 755. 275. A preference right to purchase coal land depends upon priority of possession and improvement, followed by proper filing and development. Bullard v. Flanagan, 11 L. D. 515; Walker v. Taylor, 23 L. D. 110. 276. An applicant to make entry of coal lands under section 2348 of the United States Revised Statutes must be in actual possession of the land, and it is not sufficient to show a forcible ouster therefrom. James D. Negus, 11 L. D. 32. 277. No one out of possession can make a mining application. Andrew M. Embry, 7 C. L. O. 5. 278. Occupation distinguished from possession. Dallas City v. Missionary Society, 6 Sawy. 126; Quicksilver M. Co. v. Hicks, 4 Sawy. 688; 11 Mor. Min. Rep. 98. 279. Proof of domestic occupation is not evidence of possession as mineral ground. Moxon v. Wilkinson, 2 Mont. 421; 12 Mor. Min. Rep. 602. 280. Where a mining claim is located upon an Indian reservation and the locator is in possession at the date the reservation is with the surface boundaries sufficiently thrown open, "with the requisite discovery, marked, with the notice of location posted, and with a disclosed vein of ore, he could, by adopting what had been done, causing a proper record to be made, and performing the amount of labor or making the improvement necessary to hold the claim, date his rights from that day; and that such location and labor and improvements would give him the right of possession." Noonan v. Caledonia M. Co., 121 U. S. 393. (Affirming 3 Dak. 189; 14 N. W. Rep. 426.) 281. Judgment for possession of a lode does not necessarily carry rights to the sur face ground. (Prior to 1866.) Bullion M. Co. v. Croesus G. & S. M. CO., 2 Nev. 168; 5 Mor. Min. Rep. 254. 282. The question of possession of mining claims under the California law, rules and customs discussed. Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. 305 (1860-61); English v. Johnson, 17 Cal 107; 12 Mor. Min. Rep. 202 (1860–61). 283. Actual possession of a mining claim defined, instanced or illustrated. Kelly v. Natoma Co., 1 Mor. Min. Rep. 592; Courtney v. Turner, 12 Nev. 345; Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 111; 4 West Coast Rep. 663. 284. What constitutes possession is a question of law for the court. Thistle v. Frostburg Co., 10 Md. 129. 19. Statute of Limitations. (See PATENT and STATUTE OF LIMITATIONS, pp. 275 and 333.) 285. Title to land under the Statute of Limitations must be based on possession for the prescribed period after issuance of patent. McTarnahan v. Pike, 91 Cal. 540. 286. Until patent issues, legal title to land entered is in the United States; therefore, a town lot owner claiming adversely to a mining claimant cannot set up the Statute of Limitations as having begun to run before the issuance of patent on the mining claim. King v. Thomas, 12 Pac. Rep. 865; Mayer v. Carrothers, 36 Pac. Rep. 182. 287. Plaintiff on adverse suit cannot recover if defendant proves possession of the claim during the period prescribed by the State Statute of Limitations. 420 Mining Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608. 288. Adverse possession for the time limited by the Statute of Limitations vests a perfect title in the adverse holder, which title may be quieted in his favor by a bill in equity. 420 Mining Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608. 289. No rights can be acquired by adverse possession under the Statute of Limitations by sinking on the dip of the vein, without the knowledge of the owner of the apex. Pardee v. Murray, 4 Mont. 234; 2 Pac. Rep. 16; 15 Mor. Min. Rep. 515. 290. Possession under color of title for the period prescribed by the Statute of Limitations presumed, and an adverse location made during such possession held invalid. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178. 291. The Statute of Limitations may give the possessor of a mining claim good title as against other claimants. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178. 292. When placer claims are applied for, and title is based on the Statute of Limitations, an expenditure of $500 is not required on the claims. J. P. Sears, 8 C. L. O. 152. 293. The Statute of Limitations does not obviate the necessity of publishing and posting notices of application for patent. Com'r to Smith Bros., Sept. 20, 1879, 7 C. L. O. 4. 20. Suit. (See ADVERSE and SUIT, pp. 284 and 445.) 294. In an action not under section 2326, United States Revised Statutes, a general allegation of ownership of the mining claim in the complaint is sufficient. Donahue v. Johnson, 9 Wash. St. 187; Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183. 295. An adverse claimant to a placer mine who has executed an instrument by which he agrees to convey the premises in dispute, at some future time, to a tenant in possession, may, under the code of Montana, and sections 2325 and 2326, United States Revised Statutes, maintain an action in the courts of Montana to determine the right of possession of the premises in dispute. Wolverton v. Nichols, 119 U. S. 485. See S. C., 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309. 296. Suit may be brought to quiet title on the ground of fraud after a mineral entry has been made. Lee v. Justice M. Co., 29 Pac. Rep. 1020. 297. In an action to recover possession of a mining claim, plaintiff must prove some title superior to that of defendant by a preponderance of evidence, but need not prove his right to a patent. Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795. 298. Plaintiff, who brings an action to recover possession of a mining claim, must show |