33 P. 807 | Or. | 1893
delivered the opinion of the court:
The contention for the defendants is that the party who discovers a mineral-bearing vein or lode in place upon the public lands, marks out and locates the same on the
Sections 2175, 2183, Hill’s Code, show that a justice’s court has jurisdiction of an action to recover the possession of a mining claim, prescribe the facts that must be set out in the pleadings constituting the plaintiff’s right of possession, the answer of the defendant, the substance of the judgment to be entered, the evidence that may be given, and provide for the right of appeal and the enforcement of the judgment. The action for which these sections provide is purely possessory, and does not contemplate the trial of questions which involve the legal title to realty. Its object is to furnish a speedy remedy for the recovery of a mining claim to one ousted from the actual possession, but in whom is the fight of possession. It is not intended to take the place of an action of ejectment. The action of ejectment can only be used as a remedy to determine the right of possession where the plaintiff has a legal interest or title to the property the possession of which is sought to be recovered. Section 316, Hill’s Code, provides that “ Any person who has a legal estate in real property, and a right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law.” It is said in Chapman v. Dougherty, 87 Mo. 617, that “in our statutory ejectment all the constituent elements of title are involved: possession, right of possession, and right of property ”: Joy v. Stump, 14 Or. 362. But a question as to actual possession is not one involving title, neither is the question as to the right of possession, independently of any claim of title. When the plaintiff is denied or deprived of the possession of his mining claim, it is the “facts constituting his right of possession” that furnish the basis of the justice’s courts’ jurisdiction, and the right to adjudge the recovery of its
The question then recurs whether the location of a quartz mine under the laws of the United States confers on the locator, before entire compliance with their requirements, such legal rights or title to it as precludes the right of a justice’s court to exercise jurisdiction in an action by him for the recovery of its possession. The answer to this question depends upon the nature of the interest which the locator has acquired in the claim. By section 2319, et seq., revised statutes of the United States, all valuable mineral deposits in lands of the United States and in lands on which they are found, are declared to be open to exploration, occupation, and purchase.' The mode of locating such lands as mining claims is fully provided for, and the locators are granted the exclusive right of possession and enjoyment of the surface included within the lines of their location. In Gwillim v. Donnellan, 115 U. S. 49, the court says that “a valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located.” “The statutes of the United States,” Mr. Justice Bkewek said, in Aspen Mining Co. v. Rucker, 28 Fed. Rep. 220, “provide that upon the performance of certain conditions, the discoverer of a mine becomes entitled to a patent. If all these conditions have been performed, the full equitable title is vested in the discoverer, and all that the government retains is the naked