tiff and Carroll could have obtained possession for the purpose of doing the necessary work, it was their duty to use such diligence. If, by demand 'on Boaro and Hull, they could have obtained such possession, it was their duty to make such demand. But they were not bound to attempt to do the work at any ether place than that which had been selected by Carroll,nor were they bound to use force to gain possession, or even to bring an action therefor. If they were excluded by Boaro and Hull from the possession of the very place selected by Carroll for his discovery cut or shaft, with intent on the part of the latter to hold the ground J),gainst them, it is enough on this point. 5. These several questions must be found for plaintiff, by prepon. derance of testimony, to support a verdict in his favor; for if, after one has' discovered a lode,and set up a notice of his claim to it, and within the time fixed by law for doing the work necessary to a valid loeation, another comes to the same place and takes possession thereof, to the exclusion of the first, he shall not have advantage ofhis own wrong; nor shall the subsequent locator in such case be permit. ted to allege anything against the right of the first locator. To per· mit the junior locator to deny the right of the other, under such circumstances, would be to deny him all remedy, which cannot be allowed. And, therefore, if the facts mentioned are established by the evidence, the regularity and validity of plaintiff's location shall be assumed. And if, upon the evidence, you affirm the foregoing propositions for the plaintiff, your verdict should be for him. If you deny any or all of them, yt>u should find for defendants.
HARIUS and others v. THE EQUATOR MINING & SMELTING Co.
(Circuit UOU1·t, D. Oolorado.
1. MINERAL LAND&--TITLE-ACQUISITION OF.
October 5, 1881.)
The rules applicable to real property apply to public mineral lands. Therefore, a purchaser in possession of a mining claim under color of title may, in time, under the statute of limitations, obtain a perfect title thereto 8S against all other persons.
Matters of record are incorporated into a deed by reference.
Ejectment to recover possession of the Ocean Wave'lode, situate in Griffith mining district, Clear Creek county, Colorado. Trial at May term, 1881, and verdict for plaintiffs. Motion for new trial.
R. S. Morrison and IIlIjgh Butler, for plaintiffs. II. M. Teller and E. O. Wolcott, for defendants. HALUTT, D. J. Defendant applied in the land-office at Central City to enter the Charlotte lode, and plaintiffs made adverse claim to a. part of the territory as the Ocean Wave, and brought this suit in support of their claim. The claims overlap near the ends, and the area in dispute is not very large. The Ocean Wave is something more than 10 years older than the other location, and a tunnel has been run nearly the whole length of the claim. At the trial there was evidence to show that the lode was discovered in the year 1867,. and that work had been done in the tunnel from time to time thereafter, until this suit was brought. Very little ore was taken from the tunnel, but several witnesses testified that the lode was well defined and clearly traceable throughout the length of the tunnel. An attempt was made to show a valid location, according to the law in force in 1867, and plaintiffs also relied on a relocation in 1875. In this plaintiffs were not successful, and they were at last forced to rely on possession only in themselves and their grantors as evidence of title. As to the matter of possession, it was shown that the tunnel was worked from time to time, and by different parties, from the date of discovery in 1867 until this suit was brought. Some of the parties in possession, and others who were not in possession, had conveyed parts of the claim, or an interest therein, to other parties named; but, as plitintiffs were unable to connect themselves with these con. veyances, they were not received. One conveyance made by a mas· ter in chancery, under a decree of court, in Clear Creek county, was, however, received under the circumstances which will now be stated: In the year 1875, and for some time prior thereto, the Leavenworth Mountain Mining & Tunnelling Company was in possession of the property, and had done some work in the tunnel. They had erected buildings at the mouth of the tunnel, and appeared to have and hold undisputed possession, but whether under claim of title was not shown. In this situation of affairs, one James M. Estelle brought suit against that company in the district court of Clear Creek county, and in June, 1876, obtained a decree for the sale of the premises, to satisfy several amounts of money in the decree mentioned. The premises were sold under the decree to Estelle and Morrison, and in due time a deed was made to ,Estelle, Morrison having assigned to him his interest in the purchase. Several plaintiffs claim by descent, and others by purchase from Estelle; and there was evidence at the trial tending to prove that
HARRIS '11. EQUATOR lUNING & SMELTING CO.
they, or persons in their interest, .were in possession of the Ocean in. October, 1879. Wave at the time the Charlotte lode was Upon these facts a question was presented at the trial, whether the plaintiffs, not having shown a valid location of the Ocean Wave, could claim anything in virtue of their possession of the ground in controversy, if the jury should find that they held possession at the date of the Charlotte location. And it was conceded that as to the tunnel itself, and the area covered by the buildings of the plaintiffs at and near the mouth of the tunnel, their right could not be denied. But it.was contended that nothing less than a valid location could give to them a possession beyond their actual occupancy to the full extent of a claim 1,500 feet in length by 15Ufeet in width. Upon a familiar principle, it was said, a locator of a mining claim on the public lands is required to conform to the statute and the local rules of the mining district in which his claim may be situated, in order to establish his right to a full claim, and that a grantee of the locator should be held to the same proof. This, however, embraces something more than the principle that the title to and the right to occupy the public mineral lands can only be acquired in the manner prescribed by law. Conceding that proposition, it does not follow that a locator in actual occupancy, who has been evicted by a wrong-doer, must give evidence of every fact necessary to a valid location in an aotion to recover possession; not on the ground that the essentials of a valid location are in any case to be omitted, but that in support of undisturbed possession, long enjoyed, a presumption may in some cases arise that the location was at first well made. The statute of limita- , tiona, enacted by the state and recognized in the act of congress, is in ejectment founded on this principle. If, in this state, the for mining claims has been to show all the steps of a valid location in cases gf actual occupancy and possession in the plaintiffs, it has never been declared that such proof is in all such cases indispen. sable. It is not necessary, powever, to discuss the point at length, for it ' is clear that a purchaser may be in a different position from the locator of the claim, not as against the general government, with which nothing can avail 'but strict compliance with the law regulat. ing locations, but as against other citizens seeking to locate the samo ground. It may well be said that a purchaser in possession under a conveyance regular in form is in by color of title, which, in time, of limitations, will ripen into a perfect right. And under the v.8,no.12-55
it seems reasonable to allow him to maintain hispOsMssion and his only to' initiate a new claim to the same right against oue who thing. In doing so, the regulations respecting locations are not at all relaxed, nor is any condition on which the esta-te is held set aside. A presumption is indulged that the location was regularly made in the first place,'and the party in possession is 'allowed to remain so long as he shall comply with theconditions·on which he holds the estate. The circumsto,nce that a miner's estate in the public lands is subject to conditions, on failure'of which it will be defeated, is not control1ing. Ingener,al,we apply to mines in the' public lands the !property: aSithat it may be conveyed by deed, rules applicable to is subject te sale on execution as land, descenda to the heir of the claimant and ,not to the personal representative' of estate, and so on. perceived for denying the force and, effect of the rule under consideration as applicable to such property. This view is accepted in California, and I have not found any authority against it. Attwood v. Frieot, 17 Cal. 38; Hes8 v. Winder, 30 :Cal. 349. The deed from the master in chancery to Estelle does not give the boundaries of the claim, without which, acoording to the authorities cited, it would have no effect to extend the' possession of plaintiffs beyond the'parts actually occupiedbyl them, But reference is made to a location' certificate of record, whichcontaios a full and definite description of the claim, which is· the same as if the description had been given in the deed. It matters not that' the location certificate was not shown to be regular in all respects. If· it gives a correct . description of the property, such description is, by reference, incorporated in the deed. The charge to the jury, of which defendant complains, was, in substance, that possession of the Ocean Wave by plaintiffs at the date of the Charlotte location should extend to the limits defined in the master's de.ed to Estelle, and would defeat an adverse location during such possession. This, of course, was subject to proof of a -lode in the Ocean Wave ground. :of which thel'e was evidence. The proposition, as stated, is believed to be correct, and the motion for new trial will be denied.
EVANSVILLE NAT. BANK V. BlUTTON.
EVANSVILLE NAT. BANK,
of Evansville, Indiana, v. urer, etc.
(aircuit (Jo,¥rt, D. I1Uliana.
L NATIONAL BANKS- STATE TAXATION - REVENUE LAW OF INDIANA OF 1872REv. ST. § 5219. ! By the revenue law of Indiana of 1872, capital represented by credits, which
include money at interest within or without the state, is not taxed for its full or fair value, but only on the balance which may :remain after deducting' the' amount of the tax-payer's bonajliJ,e indebtedness j while capital represented by national bank stock is taxed according to its fair value, without allowance for debts. Held, that the law is in conflict with section 5219 of the Revised Stat- ' utes, and therefore invalid. HM, also, that only such shareholders are entitled to'relief as are subject to taxation in the state upon their credits, and who, at the time of the assessment of taxes under this law,. had debts which were 'not, deducted from their credits, because they had none. and which were not deducted from the valuation of the bank shares, because the state law would not permit it to be done.
2. SAME--ILLEGAL TAXATJON-PARTms-!NJUNOTION.
The bank, under the law of the state, is a proper party to institute a' suit for the purpose of enjoining the collection of illegally assessed upon shares of its stock in the hands of the respective owners.
fuRLAN, Justice. The object of this suit is to obtain a perpetual injunction against the collection of the state, county, road, and school tax assessed in Vanderburgh county, Indiana, for the year 1879, upon the shares. of complainant's stock in the hands of its respective that some of owners. The suit proceeds upon the general the 'Provisions of the revenue statute of this .state, passed in 1872, and under the authority of which the assessment in question was made, are in conflict with section 5219 of the Revised Statutes of the United States, which permits, as did previous legislation, state taxation of national bank shares, subject to two restrictions, one of which is that such taxation "shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state." Some of the papers connected with the valuation of these shares indicate an assessment against the bank itself; but an examination of all the papers satisfies me that the assessment was intended to be, not against the bank, in its corporate capacity, but against the several shareholders, upon the shares held by them respectively. Still, the right 'of the bank to institute the present suit cannot be doubted. The state law imposes upon the bank officers the duty to retain, out of 'dividends belonging to the respective shareholders, a sum sufficient to meet the taxes assessed upon their shares i and the law further ·subjects the officer, who pays dividends toa