2 Mont. 421 | Mont. | 1876
This action is brought to determine tbe right of possession to a tract of placer mining ground in Jefferson county, upon tbe surveyed subdivisions of tbe public lands of tbe United States. It is admitted, by tbe pleadings, that tbe respondents made their application to enter tbe premises in tbe United States land office at Helena, within tbe Territory, and that tbe appellants filed their protest and adverse claim. At the trial, tbe court excluded certain evidence offered by tbe appellants, and sustained tbe motion of tbe respondents for a nonsuit. We are asked to review this ruling.
Tbe appellants allege, in their amended complaint, that they bad and held their title and possession under tbe “ rules, customs and usages of tbe miners in the district where said land is situated, and of tbe laws of tbe United States and of tbe Territory of Montana applicable thereto.” Tbe respondents deny these allegations in their answers. Did tbe testimony produced by tbe appellants tend to establish their material averments ?
No evidence was offered tending to prove that tbe appellants bad or held tbe property in controversy by vh’tue of any rules, customs or usages of any miners. On tbe contrary, tbe appellants testify that tbe ground in dispute is not in any mining district, and that there are no mining laws or customs governing its use or possession.
In legislating upon these matters, congress has recognized the distinction between lodes or veins of quartz and placer claims. The '
There is no testimony showing that any “ valuable deposits ” have been discovered upon tbe ground in controversy, or that any persons worked, improved or possessed tbe premises as a mining claim before this action was commenced. It does not appear that this tract is not agricultural land. Tbe appellants offered to prove that they dug a ditch and made improvements, for tbe purpose of mining tbe ground, after tbe bringing of tbe suit. Tbe rights of tbe parties to tbe possession of the property at or prior to tbe time that tbe appellants filed their adverse claim in tbe land office, cannot be determined by tbe subsequent acts of tbe appellants. Tbe court did not err in refusing to allow testimony concerning these facts to be introduced.
It is claimed that tbe court erred in excluding tbe evidence of one of tbe appellants, showing that be bad upon tbe premises a bouse, in which be lived, and a blacksmith shop. These improvements appear to have been made for tbe purpose of carrying on a trade. Tbe character of tbe possession, which tbe appellants seek to prove by this testimony, is not consistent with tbe title which they are trying to maintain in this proceeding. Tbe construction of tbe bouse and shop does not tend to show that this appellant possessed tbe land as a miner, or that it is mineral ground.. Conceding tbe facts to be stated correctly by the appellants, we do not think that they impair tbe rights of tbe respondents, or any persons claiming tbe property for mining purposes.
Tbe appellants failed to prove tbe material allegations of their complaint, that their possession is under tbe rules and customs of
Judgment affirmed.