OpenJurist

113 US 203 Tucker v. Masser

113 U.S. 203

5 S.Ct. 420

28 L.Ed. 979

TUCKER and another
v.
MASSER, Widow, and others, Heirs at Law, etc

January 26, 1885.

C. J. Rowell and L. C. Rockwell, for plaintiffs in error.

No brief filed for defendant in error, or argument made.

FIELD, J.

1

This is an action of ejectment for the possession of three lots in what is known as Stevens' and Leiter's subdivision of the city of Leadville, in Lake county, Colorado. The complaint is in the usual form under the practice established in that state, where the action is brought to obtain possession of land alleged to be part of the public domain, but of which the plaintiff claims to have a better right of possession than his adversary. It alleges that on the tenth of March, 1879, the plaintiff was and still 'is the owner, by prior actual possession on the public domain, and by superiority of possessory title, and entitled to the immediate possession' of the described premises, and that they are of the value of $5,000; that on the twentieth of that month the defendants wrongfully and unlawfully entered upon the premises, and wrongfully and unlawfully withheld them from the plaintiff, to his damage of $1,000; that the rents and profits of the premises, from the date of the ouster, have been $200 a month, and aggregate $3,000. The plaintiff, therefore, asks judgment for the possession of the premises, and for the damages, rents, and profits. The answer of the defendants denies the general allegations of the complaint, and avers that they are the owners of the premises, and entitled to their possession.

2

On the trial the plaintiff offered proof tending to show prior occupation of the premises, the erection of some buildings thereon, his forcible dispossession by the defendants, and the damages he had sustained. The defendants introduced in evidence a patent of the United States to William H. Stevens and Levi Z. Leiter, bearing date November 5, 1878, which convered the premises in controversy, and traced title from the patentees through sundry mesne conveyances. The patent was for a placer mining claim, and the plaintiff was allowed, against the objections of the defendant, to introduce, for the purpose of impeaching the patent, the proceedings before the land department of the government upon which it was issued. And the court decided that as it appeared upon such proceedings that the patent was issued upon four mining locations made after 1870 united in one claim, embracing 290 acres, or thereabouts, the patent was invalid and passed no title to the patentees; holding, in effect, that several distinct mining locations could not after that year be thus united in one claim for which a single patent could be issued. The plaintiff accordingly recovered.

3

The validity of a patent for a placer mining claim, composed of distinct mining locations, some of which were made after 1870, and together embracing over 160 acres, was sustained in the case of Smelting Co. v. Kemp, before us at October term, 1881, (104 U. S. 636.) All the questions presented in the case at bar were there fully considered after two arguments of counsel, and we have seen no reason to question the soundness of the conclusions we then reached. The judgment below must, therefore, upon the authority of that case, be reversed, and the cause be remanded for a new trial; and it is so ordered.