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sion, by himself or his agents and servants, as defendant. But the court in a proper case will not be deprived of its jurisdiction by the absence of parties in interest, so long as there are those within reach of process, who but for the restraining order would commit the mischief. Carrying out this view it was laid down in two very able opinions delivered in a case arising in the United States Circuit Court for the Ninth Circuit,63 that where non-resident owners of a mine were committing injuries upon the rights of the complaining party, and were consequently beyond the reach of process within the district, they were not necessary parties, and their absence would not prevent the court from effectually restraining the parties within its jurisdiction, whether they were co-owners or mere agents.

Actions to quiet title are brought by parties in possession against those who claim an interest adverse to them. As their own possession is a matter necessary to be proved, where constructive possession, according to rules and customs, is relied on, it devolves upon plaintiff to establish, (1) the existence of the local rules or customs within the district; (2) that by such rules or customs, particular acts are required to be performed in the location and working of claims, and (3) that plaintiff has substantially complied with such requirements.64 In support of the allegation that a record is, or was, required to be kept by the customs of the district, the book of records itself would be competent evidence.65 It would be no defence to such an action to allege prior abandonment or forfeiture by plaintiff, without setting up a subsequently acquired right by defendant.66

1 Hugunin vs. McCunniff, 2 Col. 367; Fitzgerald vs. Urton, 5 Cal. 308; Burdge vs. Underwood, 6 Cal. 45, McCarron vs. O'Connel, 7 Cal. 152; English vs. Johnson, 17 Cal. 107.

2 Rogers vs. Cooney, 7 Nev. 213.

3 Hugunin vs. Cunniff, supra.

4 Columbus Co. vs. Dayton Co., 18 Cal. 615.

5 Raffetto vs. Tiori, 50 Cal. 363.

6 Myers vs. Farquharson, 46 Cal. 190.

7 Bakley vs. Tielcke, 2 Mont. 59.

8 McCarron vs. O'Connell, 7 Cal. 152.

9 Mining Co. vs. Tarbet, 98 U. S. 463.

10 Campbell vs. Rankin, 99 U. S. 261; Grady vs. Early, 18 Cal, 108; Richardson vs. McNulty, 24 Cal. 339; Mallett vs. Uncle Sam M. Co., 1 Nev. 188.

11 Mining Co. vs. Taylor, 100 U. S. 37.

12 Richardson vs. McNulty, 24 Cal. 339.

13 Zollers vs. Evans, 1 Col. Law Rep. 217; opinion by HALLETT, J., Cir. Ct. U. S., Dist. Col., October Term, 1880.

14 Raffetto vs. Tiori, 50 Cal. 363; Dilley vs. Sherman, 2 Nev. 67. 15 Alford vs. Dewin, 1 Nev. 207; Sharon vs. Davidson, 4 Nev. 416. 16 Goller vs. Fett, 30 Cal. 481.

17 Waring vs. Crow, 11 Cal. 366; Dutch Flat, &c. Co. vs. Mooney, 12 Cal. 534.

18 Bullion M. Co. vs. Croesus M. Co., 2 Nev. 168.

19 Field vs. Columbet, 4 Sawyer, 524.

20 Phillpots vs. Blasdel, 8 Nev. 62.

21 Sankey vs. Noyes, 1 Nev. 68; McFarland vs. Cupertson, 2 id. 280; Staininger vs. Andrews, 4 id. 59; Robinson vs. Imperial, &c. Co.,5 id. 44; Lynch vs. Lawson, 8 id. 162; Kraft vs. Corlow, 9 id. 21; Eureka, &c. Co. vs. Way, 11 id. 171; Courtney vs. Turner, 12 id. 345. 22 Quicksilver M. Co. vs. Hicks, 4 Sawyer, 688.

23 HALLETT, J., in Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63. (U.S. Cir. Ct.).

24 Raffetto vs. Tiori, supra.

25 Brown vs. State, 1 Col. Law Rep. 394 (Sup. Ct., Col., April 22, 1881); Code of Col. § 248.

26 Code Col., § 250.

27 Felger vs. Coward, 35 Cal. 650.

28 Hoopes vs. Myer, 1 Nev. 433; Peacock vs. Leonard, 8 Nev. 84.

29 Lorimer vs. Lewis, 1 Morris (Ia.), 253.

30 Depuy vs. Williams, 26 Cal. 309.

31 Mitchell vs. Hogood, 6 Cal. 148.

32 Small vs. Gwinn, 6 Cal. 447.

33 Laird vs. Waterford, 50 Cal. 315.

34 Scarlett vs. Lamarque, 5 Cal. 63; Fogarty vs. Kelly, 24 id. 319. 35 Fremont vs. Crippen (sheriff), 10 Cal. 211.

36 Merced M. Co. vs. Fremont, 7 Cal. 317; United States vs. Par

rott, 1 McAll. (Cir. Ct. U. S.), 271; Hess vs. Winder, 34 Cal. 270; United States vs. Gear, 3 How. 132; McLaughlin vs. Kelly, 22 Cal. 211.

37 Henshaw vs. Clark, 14 Cal. 460.

58 Esmond vs. Chew, 15 Cal. 137.

39 Ensminger vs. McIntire, 23 Cal. 593; Daubenspeck vs. Grear, 18 Cal. 443.

40 Gregory vs. Nelson, 41 Cal. 278; Tuolumne, &c. Co. vs. Chapman, 8 Cal. 392.

41 Bliss vs. Kingdom, 46 Cal. 651; but see Consolidated Channel Co. vs. Cent. Pacific R. Co., 51 Cal. 269; Loan Assn. vs. The City of Topeka. 20 Wall. 655, as to constitutionality of statute.

42 Gold Hill, &c. Co. vs. Ish, 5 Oregon, 104.

43 Chapman vs. Toy Long, 4 Sawyer 28.

44 Little Pittsburgh, &c. Co. vs. Stanley, 2 Col. Law Rep. 81; supra, § 157, Taxation; Huntington vs. C. P., &c. Co., 2 Sawyer, 504; Tilton vs. Oregon &c. Co., 3 Sawyer 22.

45 Merced Co. vs. Fremont, 7 Cal. 317; Hall vs. Equator, &c. Co., Morrison's Min. Rts. Col. 282; HALLETT, J. (U. S. Cir. Ct. Dist. Col.); Thorn vs. Sweeney, 12 Nev. 251; Hess vs. Winder, 34 Cal. 270.

46 Old Telegraph M. Co. vs. Central Smelting Co., 1 Utah, 331; United States vs. Parrot, 1 McAll. (Cir. Ct. U. S. 271); see Code Col. §§ 123, 135.

47 Lyon vs. Woodman, 3 Leg. Gaz. 81.

48 Atchison vs. Peterson, 20 Wall. 507; s. c. 1 Mont. 561; Burnett vs. Whitesides, 13 Cal. 156; Waldron vs. Marsh, 5 Cal. 119.

49 Merced M. Co. vs. Fremont, 7 Cal. 317; Moore vs. Ferrell, 1 Ga. 7; Sierra Nevada, &c. Co. vs. Sears, 10 Nev. 346; More vs. Mossini, 32 Cal. 190.

50 Ramsey vs. Chandler, 3 Cal. 90.

51 Cole S. M. Co. vs. Virginia, &c. Co., 1 Sawyer, 470, 686; Code Col. § 121.

52 Brennan vs. Gaston, 17 Cal. 375.

53 Code Col., § 137; see post, LAWS OF COL. Code provisions. 54 Code Col. § 126.

55 Moore vs. Massini, 32 Cal. 590.

56 Atchison vs. Peterson, 1 Mont. 561; Slade vs. Sullivan, 17 Cal. 103.

57 Nelson vs. O'Neal, 1 Mont. 284.

58 Clark vs. Willett, 35 Cal. 534.

59 Nevada Co. vs. Kidd, 37 Cal. 283.

60 Perley vs. Forman, 7 Nev. 309; Magnet, &c. Co. vs. Page &c.

Co., 9 Nev. 346; Lady Bryan, &c. Co. vs. Lady Bryan M. Co., 4 Nev. 414; Johnson vs. Wide West M. Co., 22 Cal. 479.

61 Hobart vs. Ford, 6 Nev. 77; Sierra Nevada M. Co. vs. Sears, 10 Nev. 346.

62 Lyon vs. Woodman, 3 Leg. Gaz. 81.

63 Cole &c. Co. vs. Virginia, &c. Co., 1 Saw. 470 (by SAWYER,J.), 686; (by FIELD, J.)

64 Pralus vs. Jefferson, &c. M. Co., 34 Cal. 558.

65 Pralus vs. Pacific, &c. Co., 35 Cal., 30; Atwood vs. Fricot, 17 Cal. 37; English vs. Johnson, id. 107.

66 Pralus vs. Pacific & C. Co., supra.

§ 159. Pleading.-Very little can be profitably inserted here, as to the manner in which parties to controversies concerning mines should make up their issues. What has already appeared in connection with the principal kinds of actions, and the peculiar rights affected, will be sufficiently suggestive without going over the same ground in order to present the same questions under this heading. There is one matter, however, that will form a feature in the complaint, in every action affecting the possessory right to the mining claim, and that is the description of the claim itself. This is important as a matter of identification, and too much care cannot be bestowed upon it to render it certain, definite and intelligible. However, as an evidence that the courts are not always unreasonably strict, the following is offered as an instance of description, approved of in a complaint in ejectment: "A certain tract or parcel of mining ground, located on the middle fork of the American River, at the mouth of Mad cañon, township number six, Placer county, state aforesaid, described as follows, to-wit: Lying on New York bar, at the mouth of said Mad cañon aforesaid, fronting on said American River, and bounded on the south by said river, at low-water mark. Said claim being in front 120 feet, more or less, and on the easterly by a tract of mining claims known as the Carr claims and on the westerly by a tract of mining claims known as the

New York bar claims and the Rich claims; and northerly by claims known as the Bank claims. Said claims of plaintiffs above described being 120 feet in width, more or less, and extending back across New York bar in length 300 feet, more or less, and further known as the Dutch claims."1

1 Grady vs. Early, 18 Cal. 108.

§ 160. Jurisdiction.-Courts in the states having general jurisdiction, or those whose special jurisdiction extends to actions involving the title to real estate, are entitled to try questions as to possessory rights to mining claims on the public domain.1 And where the matter at issue is nothing more than the question of compliance or non-compliance with the local law, their jurisdiction is exclusive between citizens of the state.2 It is otherwise, of course, where a federal question, or the construction of an act of Congress, is necessary to determine the rights of the parties. In the latter event the federal courts will have concurrent jurisdiction, and such cases may be removed to these tribunals from the state courts.3 But the petition for such removal should state the particular questions involved in the controversy which gives jurisdiction to the United States courts and renders the case removable. The jurisdiction of the subject-matter, or territorial jurisdiction, will be governed by the situation of the mining claim, according to counties, or districts, as the state law may determine. Jurisdiction of this character cannot be conferred on the court by consent of parties, as it may be where it is only a question of jurisdiction of the person.5

1 Hicks vs. Bell, 3 Cal. 219; Van Etten vs. Jilson, 6 Cal. 19.

2 Magee vs. U. P. R. R. Co., 2 Sawyer, 447.

3 Frank, &c. M. Co. vs. Larimer, &c. Co., 1 Col. Law. Rep. 495.

4 Trafton vs. Nougues, 4 Sawyer, 178.

5 Hastings vs. Burning Moscow, 2 Nev. 93; Perkins vs. Sierra Nev. &c. Co., 10 Nev. 413; Welch vs. Phillips, 11 Nev. 187.

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