11 S.D. 14 | S.D. | 1898
This is a proceeding commenced in the circuit court under Section 2326, Rey. St. U. S., to determine the right of possession to certain mineral land in Lawrence county. The action was tried by the court, and resulted in a judgment for defendant, from which, .and an order denying a new trial, plaintiffs appealed.
The complaint contains two causes of action. In the first count it is alleged that in 1892 the ground in dispute was part of the public mineral domain, free and open to exploration, occupancy and purchase, and was located by one Thomas B. Hart as the “Ballard Lode Claim,” who, for a valuable consideration, conveyed the same to plaintiffs and one Abner D. Stewart, who subsequently conveyed his interest therein to plaintiffs; that since discovery, location, and appropriation Stewart and plaintiffs performed more than $300 in improving and developing the property in 1892 and 1893, and are still improving and developing the same; that plaintiffs and their grantors have in all things complied with the rules, regulations customs and laws for the purpose of holding their possession thereof; that defendant claims an interest in such lode, or
So far as necessary to an understanding of 'the questions involved, they are, in substance, as follows: That the Freemont lode was located by McKenna and defendant in June, 1887; that thereafter said locators and their grantees performed, or caused to be performed, the required assessment work each year until the commencement of this action; that during the years 1892, 1893 and 1894 the annual assessment work was
Plaintiffs’ pleadings present a remarkable combination of contradictions. It is alleged in one part of the complaint that defendant and McKenna located the Freemont lode, that plaintiffs own three-fourths of it by mesne conveyances from the locators; and in another part, that the pretended claim known as the Freemont lode is false, fraudulent, fictitious and unfounded. They allege in the complaint that defendant made application for patent, which was adversed, and this action commenced; all of which they deny in the reply. They claim to be owners of three-fourths of the Freemont lode in one breath and in the next assert that in January, 1892, the ground included therein was part of the public mineral domain, free and open to exploration, occupancy, and purchase. It is alleged in the counterclaim that plaintiffs are estopped from asserting any right, title or interest in or to the premises because of their claim of title to the same ground under the pretended