MALONE et al. v. JACKSON, 137 F. 878

MORROW, Circuit Judge (after stating the facts). The defendant in error objects that the assignments of' error do not comply with rule 11 of this court, requiring that assignments of error “shall set up separately and particularly each error asserted and. intended to be urged.” The purpose of this rule and of rule 24 is to secure a clear, but brief, statement of the precise question to be reviewed, and enable the court to understand the subject-of the controversy without laborious search. If this appears clearly and distinctly in the record as pointed out by the assignments of error, it is all that is required.

In this case there is no difficulty in understanding the question as presented by the record, and further particularity in the assignments of error is therefore unnecessary. Plaintiff’s action is in the nature of a suit in ejectment against the defendants to recover the possession of a mining claim. His right of action, is based upon an alleged possession under claim of ownership, supported by a location made in accordance with the procedure prescribed by the laws of the United States. ■ The first defense set up by the defendants is a prior location made for and on behalf of one H. M. Baker on December 6, 1898.

The defendants do not connect themselves with any right or title under this location, but it is set up for the purpose of establishing the fact that the ground was not free and open, unappropriated and unexplored, mining land of the United States, subject to appropriation and location, when the plaintiff made his location, on July 10, 1899. It is provided in

section 2322 [U. S. Comp. St. 19,01, p. 1425] of the Revised Statutes that locators of mining claims shall have .the exclusive right of possession, and enjoyment of all. the surface included within the' lines of their locations.

Section 2324 [U. S.1 Gomp. St. 1901, -p. 1426] provides, as a -condition upon which a mining claim may-be held, that the locator shall perform labor or make improvements in a designated amount each year. The act of January 22, 1880, c. 9, 21 Stat. 61 [U. S. Comp. St. 1901, p. 1427], provides that the period within which the work to be done annually on unpatented claims located since May 10, 1872, shall com- . menee on the 1st day of January next succeeding the date of the location of -the claim.

Under this act the period for the annual work required to protect the Baker location commenced January 1, 1899, ■ and continued- during the entire year éxpiring on December 31, 1899-. The claim was therefore not open to relocation- when plain- ' tiff made his location, on July 10, 1899. The law upon this subject was declared by the Supreme Court, in Belk v. Meagher, 104 U. S. 279, 284, 26 L. Ed. 735, as-follows: . “Mining claims are not open to relocation until the rights of a former locator haye come' to an end.

A relocator seeks to -avail himself of mineral in the public lands which another has discovered. .This he cannot dp until the discoverer has, in law, abandoned his.claim, and.left.,the property, ppen for another to take up. The right of location upon the mineral lands of the United States is a privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. A location can only be made where the law allows it to be done. Any attempt to go beyond that will be of no avail.

Hence a relocation on lands actually covered at the time by another valid and subsisting location is void, and this not only against the prior locator, but all the world, because the law allows no such thing to be done.” But plaintiff contends that he is entitled to recover on the strength of his prior actual possession of the premises under claim of ownership as against defendants, who, it is said, are mere trespassers on the land, or, at most, claiming possession under a later location. This' claim has also been determined adversely by the Supreme Court in the case just cited.

In that case, as in this, the defendant was a subsequent locator, but entered into possession of the premises peaceably and without force. As against this possession, the plaintiff, in Belk v. Meagher, claimed the right 'to recover. But the court said: “Under the provisions of the Revised Statutes relied on, Belk could not get a patent for the claim he attempted to locate unless he secured what is here made the equivalent of a valid location by actually holding and working for the requisite time.

If he actually held possession and worked the claim long enough, and kept all others out, his right to a patent would be complete. He had no grant of any right of possession. His ultimate right to a patent depended entirely on his keeping himself in, and all others out; and, if he was not actually in, he was, in law, out. A peaceable adverse entry, coupled with the right to hold the possession which was thereby acquired, operated as an ouster, which broke the continuity of his holding, and deprived him of the title he might have got if he had kept in for the requisite length of time.

He had made no such location as prevented the lands from being, in law, vacant. Others had the right to enter for the purpose of taking them up, if it could be done peaceably and without force. * * * No one contends that the defendants effected their entry and secured their relocation by force. They knew what Belk had done, and what he was doing. He had no right to the possession, and was only on the land at intervals. There was no inclosure, and he had made no improvements.

He apparently exercised no other acts of ownership after January 1st than every explorer of the mineral lands of the United States does when he goes on them and uses his pick to-search for and examine lodes and veins. As his attempted relocation was invalid, his rights were no more than those of a simple explorer. In two months he had done, as he himself says, ‘no hard work on the claim,’ and he ‘probably put two days’ work on the ground.’ This was the extent of his possession. He was not an original discoverer, but he. sought to avail himself of what others had found.

His possession might have been such as-would have enabled him to bring an action of trespass against one who entered without any color of right, but it was not enough, as we think, to prevent an entry peaceably and in good faith for the purpose of securing a right under the act of Congress to the exclusive possession and enjoyment of the-property. The defendants, having got into, possession and perfected a relocation, have secured the better right. When this suit was begun they had not only possession, but a right granted by the United • States to continue their possession against all adverse claimants.

The possession by Belk was that of a mere intruder, while that of'the defendants was accompanied by color of title.” The defendant in error contends, however, that the location made by Baker in 1898 was as effectual to preclude Malone from making a location in'1902 as it was Jackson in 1899, for the reáson that the evidence does not show that the Baker location was ever terminated, either by forfeiture or abandonment. The Baker location was suffi■cien't' to' give' to the ldcator.an exclusive right to the possession-and enjoyment of the property until January 1, 1900.

The location of Jackson on July 10, 1899, was therefore void, and gave him no right of possession.- But Jackson appears to have been in the actual possession of the claim in the years 1900, 1901, and 1902. He testified that he was on the claim in 1900; that he had two men on it for two weeks—one person besides himself. In the year 1901 he ran a 40-foot drain and two little cuts into the side. The value of the work done, he says, was $200. He found deposits of gold on the claim-in-the year 1901. .. He worked on the claim in August of the year 1902. -He had a tent on the property.

This evidence, was sufficient to show that Baker had abandoned the claim, and that it was open to relocation after January 1, 1900. But Jackson did not relocate the claim after that date. He was merely in possession as an explorer. He did not add to his possession the right of exclusive possession which he would have obtained by a valid relocation.

This was done by Malone on January 1,1902, and this relocation .by, Malone gave him the right of exclusive possession until January 1, 1903. • Had Jackson- relocated the claim on January 1, 1900, he would have added to his possession the exclusive right of possession; and, had he then made the expenditures and improvements required by the statute during the year 1901, the claim would not have been open to relocation on January 1, 1902, and Malone’s relocation on that date would have been void.

But as it was, Malone’s relocation was valid, and his ouster of Jackson left the latter without the right of possession which it-was necessary for him to have' in order to maintain this suit. The -court should therefore have instructed the jury to return a verdict for the defendant, instead of for the plaintiff. The judgment of the court below is reversed, with instructions to grant a new trial.