Hopkins v. Noyes

• Citation: 4 Mont. 550
• Parties: HOPKINS and others v. NOYES and others.
• Decision Date: 06 February 1883
• Court: Montana Supreme Court

4 Mont. 550

HOPKINS and others

v.NOYES and others.

Supreme Court of the Territory of Montana.

Filed February 6, 1883.

Possession of a mining claim, without compliance with the law and the rules of the mining district, gives no valid title or right of possession, and is valueless against a location made and sustained in compliance with the law.

A locator takes as by grant from the government, and the thing granted is real estate, and should be conveyed by deed; hence, proof of possession of a mining claim, without any valid location, and of transfer of possession by mere delivery, is immaterial in a suit where the right to possession is contested, and should be excluded.

The marital rights of the husband, in property conveyed to his wife, are only such as regard the rents and profits, and they may be defeated by limiting the grant to her sole and separate use.

A tenant in common has exclusive possession, and may treat the common property as his own against all the world, except his co-tenants.

From Second district, Silver Bow county.

Knowles & Fosbis, for respondents.

Robinson & Stapleton and F. L. Napton, for appellants.

WADE, C. J.

This action grows out of a conflict between a placer location, under the act of congress of July 26, 1866, and a quartz lode location, under the act of May 10, 1872, and the plaintiffs bring the action under the statute, to have determined the right to the possession of the ground in dispute. The defendants claim title and the right of possession under a placer location, and on the trial offered to prove that the ground in question was located and recorded as a placer mining claim in the year 1866, in pursuance of the law, and the local rules and regulations of the Summit Valley mining district; that the parties who made this location immediately entered into the actual possession, and thereafter sold the ground to other parties, and delivered the actual possession thereof to them; that such other parties, while so in the actual possession, sold and delivered the same to the defendants, who at once entered into the actualpossession, and held such possession down to the date of this action, but that none of said sales and transfers were by deed. This testimony was excluded and error assigned.

1. Under this issue the question of actual possession was not very material. The inquiry being as to which of these parties had the right of possession, the presumption of ownership which accompanies possession did not arise. Possession by the defendants was admitted, and issue was joined as to their right. The plaintiffs alleged that the defendants had forfeited their right to the possession by a failure to comply with the rules and regulations of the mining district in relation thereto, and that was the question to be tried. The defendants did not offer to prove, and it did not appear that they or their predecessors in interest held possession of the claim by virtue of a compliance with the local rules and regulations of the district in which the same was situated. Possession must be so held in order to carry with it a possessory title. Possession within a mining district, to be protected, or to give vitality to a title, must be in pursuance of the law and the local rules and regulations. Possession, to be available, must be properly supported. It must stand upon the law and be the result of a compliance therewith. Representation of a claim, in the manner provided by the law and the local rules and regulations of the mining district, is the life of the possessory title to such claim. Possession without a location carries no title. Possession under a location that has become dead by reason of non-representation, or a failure to comply with the local rules and customs, is equivalent to possession with no location at all. Therefore, proof of the mere delivery of possession of a placer-claim from one to another, from the date of location to the date of the adverse claim, whether such delivery was accompanied by a deed or otherwise, would be of little or no consequence. Such delivery would carry no title unless the possession was supported by proof of a continued compliance with the law and the local rules and regulations, which alone give vitality to the title by possession. Possessory titles do not live upon possession alone. They must be supported by proof, a compliance with the law that gives the right to and sustains the possession. The mere naked possession of a mining claim upon the public lands is not sufficient to hold such claim as against a subsequent location, made in pursuance of the law and kept alive by a compliance therewith. Hence, we say, that upon an issue joined as to the forfeiture of the right to the possession of a mining claim by reason of failure in complying with the rules and regulations of the district as to representation, etc., proof of the actual possession, or of the delivery of such possession, from the date of the location to the trial of the issue, if unaccompanied by testimony, showing that such possession was taken and held under and by virtue of a compliance with the local rules and regulations of the district, is immaterial proof.

2. The possessory title to a mining claim ought to be conveyed by a deed. Such a title is real...