137 F. 878 | 9th Cir. | 1905
(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 (30 U.S.C.A. § 26) 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 (30 U.S.C.A. § 28 and note) 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, provides that the period within which the work to be done annually
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
The defendant in error contends, however, that the location made by Baker in 1898 was as effectual to preclude
The judgment of the court below is reversed, with instructions to grant a new trial.