Bay State Silver-Mining Co. v. Brown

• Decision Date: 11 August 1884
• Citation: 21 F. 167
• Parties: BAY STATE SILVER MINING CO. v. BROWN.
• Court: U.S. District Court — District of Nevada

21 F. 167

BAY STATE SILVER MINING CO. v. BROWN.

United States Circuit Court, D. Nevada.

August 11, 1884

Thompson Campbell and R. M. Clark, for complainant.

A. C Ellis, for defendant.

SABIN J.

This suit was brought under Rev. St. Sec. 2326, to determine the right of possession between plaintiff and defendant to certain mining ground situate in Bristol mining district Lincoln county, Nevada, described in the complaint. On the seventh of October, 1882, defendant filed in the proper land-office an application for a patent for the Ida May lode situate in said Bristol mining district. Notice of such application was duly published as by law required. Within the period of publication of said notice, plaintiff, by its superintendent, filed in said land-office a protest against the issue of a patent for said Ida May lode to defendant, on the ground of a conflict between said claim and the Bay State mine, the alleged property of plaintiff. Hence this suit. It was begun in the proper state court, and by plaintiff removed to this court.

There was not a line of testimony submitted to the court tending to establish either plaintiff's or defendant's title or right of possession to the mining ground in controversy. The complaint alleges that 'prior to the twenty-fifth day of August, 1881, the plaintiff was, and ever since has been, and now is, the owner (subject only to the paramount title of the United States) and in the possession, and entitled to the possession, of that certain mining claim * * * known and called the Bay State mine, and located on the second day of February, A.D. 1871, and duly recorded,' etc. The defendant, by his answer, 'denies that said plaintiff was upon the twenty-fifth day of August, 1881, or for a long time prior thereto, or that it ever since has been or now is, either the owner or in the possession, or entitled to the possession, of that certain mining ground and claim situate * * * known and called the Bay State mine, as alleged in said complaint. ' The answer further denies the material averments of the bill, and claims title and possession of the ground in dispute in defendant, by virtue of a lawful location thereof, made by him August 25, 1881.

It is contended by plaintiff's counsel that this denial, above quoted, is insufficient, and that it virtually admits plaintiff's title and right of possession to said mining claim and ground; and that such admission renders unnecessary any proof on the part of plaintiff of its title or right of possession thereto, and hence no evidence was offered thereon. I cannot agree with counsel in this position. The denial is as broad as the averment in the complaint, and this is all that can be required of the defendant. The alleged fault in this denial is-- First, that it does not deny that the Bay State mine was located in 1871; and, secondly, that it does not deny that plaintiff ever owned or was ever in possession of such mine or mining claim. As to the first alleged fault, it is wholly immaterial whether or not the Bay State...