BETSCH et al. v. UMPHREY et al., 252 F. 573

GIRBERT, Circuit Judge (after stating the facts as above). The appellees, by alleging that their claim was a relocation of the claim located by Blanker on July 4, 1914, admitted the validity of the original location. Zerres v. Vanina, 150 Fed. 564, 80 C. C. A. 366, and, cases there cited.

Although tire appellants do not allege in their answer that they claim title and possession under Blanker’s location, sufficient appears in the complaint to show that such is the case, for the complaint presents the affidavit filed on April 4, 1917, on behalf of the appellants to show that the assessment work was' done for the year 1916, and that they asserted ownership of the Blanker claim. The complaint alleges, however, that before the appellees made entry on the claim the appellants had abandoned and forfeited any interest which they might have had in the claim.

That allegation was denied in the answer, and thereby an issue was presented for trial. But, say the appellees, the appellants, instead of averring in their affirmative defense that they were the owners in fee at the time when the action was commenced, alleged their ownership in the present tense, and thus admitted that they were not the owners at any prior time.

If that had been the only allegation bearing upon that feature of the case, it would still have been error to enter judgment on the pleadings, for it was evidently the intention of the appellants to allege their tide as of the date of the commencement of the suit. The-granting of a judgment upon the pleadings on motion is not regarded with favor by the courts. “The pleading must be clearly bad, in order to justify a judgment in favor of the other party; and if there is any reasonable doubt as to its sufficiency, judgment on the pleadings will not be rendered.

So the defect must be substantial and not merely formal or technical.” 31 Cyc. 607. It sufficiently appears, however, from all the pleadings in the case, that the appellants were in possession during the year 1916 under a mining location which could only have been the Blanker location, for the relocation notice admits that location and its validity, and the .appellees, by setting forth .the affidavit of the assessment work done by the appellants in the year 1916, identified that assessment work and the possession of the appellants with the Blanker location, and admitted possession by the appellants in that year.

That possession, so admitted, must he deemed to have continued until shown to have been discontinued. It is true that the appellees allege its discontinuance hy their averment that the appellants abandoned and forfeited the mining claim, but that allegation was denied.

In short, upon the appellees’ own showing the appellants were in the quiet and undisputed possession of the premises in 1916, under a valid location, and those facts constitute a prima facie case, which can be overcome only by a proof of abandonment or forfeiture, or other divestiture, and the acquisition of a better right or title by the appellees. Hammer v. Garfield Mining Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964. It was error, therefore, to enter a judgment upon the pleadings.

The judgment is reversed, and the cause is remanded for further proceedings. other cases see samo topic & KBY-NUM15BR in all Key-Numbered Digests & Indexes