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specified or the mode of collection established, does not release the owner from liability for the tax. The provision in the Nevada constitution for the taxation of the proceeds of mines, contemplates the taxation of the entire proceeds and not a fractional part thereof. But there was nothing in the constitution, or in subsequent sections of the statute,9 providing for equality of taxation, or uniformity of manner in enforcing collection, which is contrary to the provision requiring quarterly assessments and payments.10 Flumes have been held subject to taxation, though necessary to give value to a claim which was exempt by state law.11 Where mining claims are exempt from taxation, the exemption cannot be avoided by levying a tax on the money invested in them, under the provisions of a statute taxing "all capital loaned, invested, or employed in any trade, commerce, or business whatsoever." The true basis of valuation in taxing the possessory right to mining claims, is the amount which can be realized by a sale of the right.12 Where the statute 13 provided "that an additional exemption of fifteen dollars per ton, may be allowed on all ores worked by Freiburg or dry process," it was held not to authorize an exemption of fifteen dollars per ton on all ores so worked, in addition to the actual cost of working them, but only when such actual cost exceeded sixty per cent. of the gross yield. The object of the statute was to tax the gross yield less the actual cost, provided the actual cost did not exceed sixty per cent. in case of ores worked by wet process, with an additional fifteen dollars per ton in case of ores worked by dry process.14

1 Forbes vs. Gracey, 94 U. S. 762; City of Virginia vs. Chollar Potosi M. Co., 2 Nev. 86; State vs. Eastabrook, 3 Nev. 173; State vs. Kruttschnitt, 4 Nev. 178; State vs. Manhattan, &c. Co., id. 319.

2 State vs. Moore, 12 Cal. 56; Hale & Norcross, &c. Co. vs. Story County, 1 Nev. 104; People vs. Taylor, 1 Nev. 109; People vs.

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Black Diamond, &c. Co., 37 Cal. 54; People vs. Shearer, 30 Cal.

3 Forbes vs. Gracey, 94 U. S. 762.

4 Constitution Nev., Art. X; Constitution Col., Art. X., § 3.

5 People vs. Black Diamond, &c. Co., 37 Cal. 54; People vs. Taylor, 1 Nev. 109.

6 State vs. Earl, 1 Nev. 394; State vs. Eastabrook, 3 Nev. 173; State vs. Kruttschnitt, 4 Nev. 178.

7 City of Virginia vs. Chollar Potosi M. Co., supra; State vs. Eastabrook; State vs. Kruttschnitt, supra.

8 State vs. Eastabrook, supra; Little Pittsburgh, &c. Co. vs. Stanley, 2 Col. Law Rep. 81. [The latter case was one rising under the laws of Colorado, and was decided by Judge HELM of the district court on demurrer to an answer in an injunction proceeding to restrain the collection of taxes. In an able opinion the learned judge decided the following points: (1) That the net proceeds of mines were taxable (citing Art. 10, § 3, Const. and Gen. Laws, § 2244). (2) That it was not within the power of the legislature to exempt such property from taxation (citing Const, Art. 10, § 6). (3) That the language of the constitution-"All taxes shall be uniform * * * * and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation. * * * Provided that mines and mining claims bearing gold, silver and other precious metals (except the net proceeds and the surface improvements thereof) shall be exempt from taxation," clearly indicated that taxes on this property should be levied and collected under general laws, hence the constitution was not self-enforcing. (4) That the only general law for taxing personal property, provided that all personal property should be listed in the county "where it shall be on the first day of May of the then current year" (citing Gen. Laws, § 2248). (5) That this section was manifestly inapplicable to the taxation of the net proceeds of mines, if not unconstitutional, for the reason that it did not provide for taxation of the entire net proceeds of mines. (6) That the statute providing for the assessment of the average value of stocks of merchandise would not apply. (7) That the legislature had provided no machinery for the assessment and levy of taxes on the net proceeds of mines, and hence, such property was not taxable in the present state of the revenue law.] 9 Nev. Stat. 1865, p. 271; Nev. Stat. 1871, § 10, p. 87.

10 State vs. Kruttschnitt, supra; State vs. Eureka, &c. Co., 8 Nov. 15; State vs. Manhattan, &c. Co., supra.

11 Hart vs. Plum, 14 Cal. 148.

12 State vs. Moore, 12 Cal. 56.

13 Nev. Stat. 1871, p. 87.

14 State vs. Eureka, &c. Co., 8 Nev. 15.

§ 158. Remedies and procedure-Trespass-Ejectment-Forcible entry, etc.-Injunction-Actions to quiet title. The modes of procedure herein mentioned are so designated without reference to the abolishing of forms of action by the civil codes. They do not embrace every species of litigation which may arise respecting mining property, for the reason that controversies may grow out of mining transactions as endless in variety as from any other kind of business. These are the most common and characteristic.

Trespass, or its equivalent under code procedure, will lie in favor of any one in actual or constructive possession against one entering with no better title at the date of such entry. It is only necessary for the party resorting to this remedy to prove an actual or constructive possession in himself, as against the trespasser.2 But in actions of trespass the constructive possession of the entire lode by plaintiff must yield to defendant's prior actual possession of a part thereof, and as to that part defendant would not be a trespasser. It has also been held that defendant in trespass may justify by showing title in a third party at date of entry, and a purchase by himself before suit.4 An action of this kind will not in general lie where plaintiff is totally ousted from the possession which is held adversely by defendant.5 But a trespass is not condoned by leaving the trespasser one month in undisturbed possession.6 A party in possession of a ditch and the water incident thereto, may maintain an action against a trespasser when the legal title is in a third person. Where a joint trespass was declared on in an action against several defendants, and on the trial it was proved that there were several dis







tinct trespasses committed by defendants, it was held
that plaintiff was nevertheless entitled to recover.s
Trespass will lie for underground encroachments on the
dip of plaintiff's vein.9

Ejectment, or a civil action under the code, intended
to serve the same purpose, lies to try the right of
possession. In such actions, every question respect-
ing compliance, with the conditions imposed by law
upon mining claimants, may be, and perhaps have
been, raised and decided. As in cases of trespass, posses-
sion is held prima facie proof of title.10 And where both
parties claim under the same grantor, the regularity of
the location is not in issue.11 Where the action is to re-
cover possession of a mining claim, located on the pub-
lic domain, the ordinary rule in ejectment, that plaintiff
must recover on the strength of his own title, and not
upon the weakness of his adversaries, does not apply,
for the reason that neither claims title, and therefore he,
who has the superior right, when the action is instituted,
must prevail.12 But though possession be sufficient, it
has been held that it only extends to the actual work-
ings, unless a lode, which extends to the ground in dis-
pute, be discovered, prior to the commencement of the
action.13 This is the proper remedy, when the party
entitled to possession has been disseized, and the wrong-
doer is in adverse possession. It does not depend, as in
case of trespass, upon actual or constructive possession
at the time of ouster.14 It may be by one of several co-
tenants against the others,15 or by all the tenants in
common jointly.16 And the only necessary parties de-
fendant to the action are those whose possession, or
claim of right, conflicts with that of plaintiff.17 And
where, pending the suit against several defendants,
plaintiff sells out to one of the defendants, the contro-
versy as to him is ended.18 In California the action may

be for possession and for damages, or mesne profits, or distinct actions may be brought for possession and for damages.19 The holder of the legal title to the possessory right, as distinguished from the equitable owner, or person for whose use and benefit the property was purchased, has been held in Nevada the proper party plaintiff.20 Where mere possession of public land is relied upon by one who has been ousted after the lapse of a reasonable time for location and improvement, he can only recover against the person in possession by showing an actual, open, and notorious prior possession.21 But subjection of the land to the party's use is sufficient evidence of possession. Occupation in person or by agent is not absolutely necessary.22 Ejectment may be maintained for an entire claim by a purchaser, on the strength of his continued and recognized possession to the boundaries described in a defective certificate of location referred to in his deed.23 Although, as we have seen, that this, or its equivalent, is the proper remedy in case of actual disseizin,24 yet under the code of Colorado, in the possessory action, there substituted for ejectment, this element is not necessary. The defendant need not be in actual adverse possession. It is sufficient if he exercise acts of ownership over the property, or “claims title" thereto, or "some interest" therein, at the time of the commencement of the action.25 Indeed, under the provisions of that code the possession of defendant is not in issue. He can only deny plaintiff's right, set up his own, or disclaim any interest in the premises, which is equivalent to a confession of judgment, except that he would in the case of disclaimer be entitled to his costs.26 This remedy cannot be resorted to for breach of contract, as a means of enforcing its terms. action should be for specific performance.27 Forcible entry and unlawful detainer, or forcible entry and


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