24 Mont. 243 | Mont. | 1900
after stating the case, delivered the opinion of the Court.
The only question presented upon this appeal arises upon the correctness of the action of the district court upon the demurrer. It is conceded by the appellants that the proceedings of the land department of the United States in the disposition of the public lands are judicial in their character, and that the determinations therein by the proper officers, acting within their jurisdiction, upon questions of fact, or of mixed law and fact, are conclusive upon the courts, and cannot be revised or disturbed by them. The contention is made, however, that the courts, while recognizing the dignity of a patent from the government, may, nevertheless, through their equitable powers, control and limit its operation in accordance with the principles of common justice as between the grantee of the legal title under the patent and others who
It is well settled that under our system equitable defenses, like the one sought to be invoked here, as well as defenses at law, may be interposed in actions in ejectment. In such cases however, the answer is in the nature of an original bill in equity, and must contain all the allegations necessary to constitute the defense or warrant the relief sought. (Reece v.
The defendants, in order to show their right to a patent, attempt to allege a forfeiture by tbe plaintiffs during the years 1889, 1890, and 1891, and a relocation of the ground covered by the Clementh lode by Sla and Burridge in 1892 under the name of the “Minnehaha Lode.” Their averment in this connection is that ‘ ‘they (plaintiffs) failed and neglected to do and perform one hundred dollars’ worth of work or labor, or any work or labor, thereon during these years. ’ ’ The language of the statute (Rev. St. U. S. Sec. 2324) is: “On each claim * * * not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year. ” It is the well settled doctrine that the annual expenditure required by the foregoing provision may be made either in labor or improvements put upon the claim itself, or upon one of a group of contiguous claims to which the particular claim belongs, or, in some instances, upon adjoining ground not included in any claim. (2 Lindley on Mines, Sections 629-631; Smelting Co. v. Kemp, supra; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Book v. Justice Mining Co. (C. C.) 58 Fed. 106; Rev. St. U. S. Sec. 2324.) The outlay is to be regarded as made upon the claim, within the meaning of the statute, whenever it is made for the development of the claim, and to facilitate the extraction of the minerals it may contain. (Smelting Co. v. Kemp, supra.)
The plea, of forfeiture is in the nature of a confession and avoidance. It admits a prior right in the plaintiff, which would have continued but for the entry and location by the defendant, which, under the mining law, has terminated it. (Morenhaut v. Wilson, 52 Cal. 263.) One who relies upon such a plea, must set forth the facts upon which he relies to overturn the prior right of his adversary, and establish them by clear and convincing proof. (Renshaw v. Switzer, 6. Mont. 464, 13 Pac. 127; Wulf v. Manuel, 9 Mont. 286, 23 Pac. 723; Mattingly et al., v. Lewisohn, 18 Mont. 508, 35
The demurrer was also properly sustained on another ground; for not only was it incumbent upon the defendants to properly plead and prove a forfeiture on the part of the plain
Nor can counsel be sustained in the contention that the demurrer is insufficient in that it does not point out specific objections to the answer. Section 715, supra, provides that the demurrer to a counterclaim may specify the objections to it in the same way as when interposed to a complaint. Section 681 of the Code of Civil Procedure provides that, when the demurrer to a complaint is upon the ground mentioned in subdivision 6 of section 680, which enumerates the grounds of. demurrer to a complaint, the objection may be stated in the language of that subdivision.
The judgment of the district court is affirmed.
Affirmed.