2. That by said decree it be declared that the defendant has no estate or interest whatever in or to said land and premises; and that the title of said plaintiff is good and valid.

3. That the defendant be forever enjoined and debarred from asserting any claim whatever in or to said land or premises adverse to the plaintiff; and for such further and other relief as to this court shall seem meet and agreeable to equity, and for plaintiff's costs of suit.

The defendant, in his answer, denies that the plaintiff is the owner, or in possession, of either of the mining claims mentioned, and that the plaintiff has ever owned, or now owns, or has ever been, or now is, in the possession of such portions of the premises described in the complaint, and therein called the Central and Lady of the Lake mining claims, as are embraced in the Clara mining claim, a claim owned by the defendant; and admits that the defendant claims an estate and interest adverse to the claim of the plaintiff in so much of the premises described in the complaint as is embraced in the said Clara mining claim, and denies that he has made, or makes, any claim to, or claims any estate or interest in, the premises described by the complaint, excepting only that portion thereof embraced in the Clara mining claim, as the same is therein described; and alleges that before the commencement of this action he was, and still is, the owner in fee under a patent from the United States, and in the possession of the Clara mining claim, particularly describing it, from which it appears that there is a surface conflict between the Clara and both claims of the plaintiff. The answer concludes with the prayer that plaintiff's complaint may be dismissed, and all relief thereby prayed for be denied, and for costs, and for such other relief as may be proper.

The case was tried upon the following stipulation of facts, and no oral testimony was offered or taken in the case:

STIPULATION OF FACTS.

Facts agreed to and considered as if fully proved by plaintiff: 1. The Central mining claim was located August 19th, 1876, and exhibit "I" is a correct copy of the location notice.

2. The said mining claim was originally surveyed for application for patent August 2d, 1880, and application for patent soon after made by the plaintiff or its grantor. In such application there was omitted from the Central mining claim the area in conflict with the Lady of the Lake mining claim, and the application was for 3.89 acres of surface ground, colored on exhibit "3."

3. The Lady of the Lake mining claim was located July 25th, 1875, and exhibit "2" is a correct copy of the location notice.

4. Said Lady of the Lake mining claim was officially surveyed for application of patent on the 8th day of July, 1876.

5. Said mining claims and the Clara mining claim are correctly represented on the annexed or accompanying map, marked exhibit "3."

6. The Central mining claim and the Lady of the Lake mining claim, at the commencement of this action were, and still are, the property of and owned by the plaintiff, to the extent that the locators and their grantees could convey and give the title to the same, the plaintiff having succeeded to such interest as said locators and their grantees could grant. There was no actual possession of the conflict and disputed areas at the commencement of the action. But the plaintiff had possession, in accordance with mining laws and customs, of other parts of the Central and Lady of the Lake mining claims, and by virtue of such possession was also in possession of the conflict areas, if such conflict areas are rightfully a part of the Lady of the Lake and Central mining claims, and not the property of the defendant under his patent for the Clara mining claim. That the plaintiff and its grantors have done the work required by law, from year to year, to the commencement of this action, on the said Lady of the Lake and Central mining claims respectively.

7. The annexed copy (printed) of the by-laws of the Blue Ledge mining district, in which the premises in question are, and during all the time mentioned in this stipulation have been situated, is correct, and correctly states and shows the by-laws passed and adopted in said district, and all of them, and the dates when the same were adopted.

Facts agreed to, and considered as if fully proved by the defendant:

1. The Clara mining claim was located June 28th, 1872, and exhibit "A," annexed, is a correct copy of the location notice.

2. Said mining claim was officially surveyed for application for patent March 31st, 1876.

3. Application for patent under said notice and survey was made in the United States land office at Salt Lake City, Utah, April 28th, 1876; the application included an application for the Clara mill

site.

4. The Clara mining claim was entered and paid for at said office February 20th, 1879.

5. The patent for the Clara mining claim was granted on the 6th day of February, 1880, under said application and on said entry, to the defendant, who had succeeded to the interest of the locators. and their grantees, and the said claim as patented is correctly shown on plaintiff's exhibit "3." A copy of the patent may be annexed and made a part of the case, in this court, or on any appeal.

6. On the 27th day of June, 1876, and during the sixty days' publication of the notice of application for patent for the Clara mining claim and mill site, the owners of the Lake mining claim filed in the United States land office an adverse claim against said application for patent, and thereby made an adverse claim to the areas in conflict between the Lady of the Lake mining claim and the Clara mining claim and Clara mill site.

On the 25th day of July, 1876, agreements in writing were made between the owner of the Lady of the Lake mining claim and the

applicants for patent for the Clara mining claim and mill site, as follows: An agreement whereby the owners of the Clara mill site relinquished their application for patent for so much thereof as conflicted with the Lady of the Lake mining claim; and the owners of the Lady of the Lake mining claim agreed in consideration thereof to prosecute their application for patent for said claim with diligence, and when patent was obtained, to convey to the owners of said mill site, or their assignees, the area in conflict between said mill site and said Lady of the Lake mining claim, excepting and reserving, however, to the owners of the Lady of the Lake mining claim any mineral vein or veins under the surface of said conflict area, and also the right to mine and extract any minerals therein. And the owners of the Clara mining claim agreed not to protest the application for patent for the Lady of the Lake mining claim; and at the same time, the owners of the Lady of the Lake mining claim, as part of same agreement, made and delivered to the applicants for patent for the Clara mining claim, and also filed in the United States land office a written withdrawal, relinquishing their said protest and adverse claim against the application for patent for the Clara mining claim, and released to the United States and their grantees the lands and premises in conflict between the said Clara and the Lady of the Lake mining claims, the said conflict area containing forty one-hundredths of an acre, more or less.

7. That on the 4th day of May, 1872, it was known to the miners of the Blue Ledge mining district that an act of Congress relating to the location and extent of mining claims upon mineral lands of the United States had passed, or was about to be passed.

8. The premises in dispute being the conflict area between the Clara mining claim and the Lady of the Lake and Central mining claims, are of the value of more than one thousand dollars, and the area in conflict between the Central and Clara mining claims is of the value of more than one thousand dollars.

It is stipulated that the foregoing are all the facts in the case, and the case may be heard and determined therein, or on such of them as the court may hold material and admissible in evidence; each party reserving the right to object to the materiality and competency of any of said facts, as fully as he or it could do if proof thereof was offered at the hearing.

And the defendant now objects to the competency and admissibility of item seven in the plaintiff's facts, and any other facts or evidence offered with a view to attack or impeach the validity of the Clara patent, on the ground that these are not the proper parties to the action, or any foundation laid in the pleadings, or any legal or equitable ground set forth in the complaint to justify an impeachment of the patent title.

The court made and filed the following findings:

This action having been heretofore submitted to the court on the pleadings, stipulation of the parties as to the facts, and the argument of counsel; Messrs. Sutherland & McBride appearing as coun

sel for the plaintiff, and Burnett, Harkness and Kirkpatrick as counsel for defendant; and the cause having been duly considered, the following findings of fact and conclusions of law are now made, to wit:

It is found that the facts are as stipulated by the respective parties in the stipulation now filed, and the exhibits thereto attached, and said stipulation as to facts is adopted by the court as a finding of facts. And as conclusions of law, it is found that the defendant owns and is entitled to the possession of the area in conflict between the Clara mining claim and the Central and Lady of the Lake mining claims, and that the plaintiff at the time of the commencement of the action did not own, and was not entitled to the possession of said conflict area, or any part thereof. That the defendant is entitled to judgment in accordance with these findings, and dismissing the plaintiff's action on the merits, and for costs of suit.

Judgment entered accordingly, from which plaintiff appeals.
Sutherland & McBride, for the appellant.

Burnett, Harkness & Kirkpatrick, for the respondent.

EMERSON, J. This is an action under the 254th section of the practice act. The complaint is in the most general terms, and simply avers that the respondent claims some estate or interest in the premises in controversy, or some part thereof, adverse to the appelÎant, which interest or claim, it is averred, on information and belief, is without any legal or equitable foundation and void, and that it is a cloud upon the title, etc., the usual formal allegation. The respondent pleads, and the agreed facts show, a patent to him from the United States, including the ground in controversy. In view of the facts set out in the agreed statement, the most that can be said as against this patent is that it is voidable, and not void.

Passing by the question whether an action can be maintained to set aside a voidable patent granted by the United States without making it a party, this complaint is insufficient to authorize the admission of evidence attacking the validity of the patent or to sustain a judgment or decree of the court annulling it. Such a decree would not be in accordance with any specific relief demanded by the appellant, and could not be included in the general clause for relief under the 149th section of the practice act, as it would not be consistent with the case made by the complainant, or embraced in the issues. Counsel for appellant say, in their brief, that "the object of the suit is to have an adverse claim annulled." The adverse claim is shown to be based upon a patent title from the government. No objection is made that the patent is void upon its face, or otherwise informal. The government certainly had the title; the patent is not unauthorized or prohibited by any law, and is between competent parties, and is voidable only in equity for some mistake, fraud or misrepresentation practiced upon the government: Kahn v. Old Telegraph M. Co., 2 Utah, 174. Granting that this may be done without making the party defrauded, the government, a party to the

action, the acts of fraud, misrepresentation, and the like, must be specified in the complaint, or it will not state facts sufficient to constitute a cause of action: Semple v. Hagar, 27 Cal. 183. As the members of the court are not prepared to pass upon the remaining point raised on this appeal, and as the one discussed is decisive of the case, the judgment of the lower court dismissing the action is affirmed.

HUNTER, C. J., and Twiss, J., concurred.

LOGAN CITY v. BUCK.

Filed July 26, 1883.

PROHIBITION OF SALE OF LIQUORS-CONSTRUCTION OF ORDINANCE.-The provision of the city charter of Logan City granting power to the city council by ordinance to "license, regulate, prohibit or restrain" certain persons, places and business, but which fails to state what acts may be licensed, regulated, prohibited or restrained, does not authorize the passage of an ordinance prohibiting all persons form selling, manufacturing, giving away or disposing of any spirituous liquors.

APPEAL from a judgment of the district court, entered in favor of the plaintiff. The opinion states the facts.

W. H. Dickson, for the appellant.
Sheeks & Rawlins, for the respondent.

Twiss, J. The proceedings in this case were instituted before a justice of the peace upon affidavit duly filed charging that the defendant on the twenty-first day of July, 1882," within the corporate limits of Logan City unlawfully did sell and dispose of intoxicating liquors to the affiant, to wit, two drinks of whisky, for the sum or price of twenty-five cents, contrary to the provisions of an ordinance of said city prohibiting the manufacture and disposal of liquors, passed January 13th, 1879. There was judgment against the defendant, who appealed to the district court, where the defendant demurred to the affidavit or complaint, alleging as grounds of demurrer "that said complaint does not state facts sufficient to constitute, an offense against any valid ordinance of Logan City; that the court has not jurisdiction to try said action." The demurrer being overruled, the defendant pleaded not guilty. Upon trial the plaintiff offered in evidence an ordinance of Logan City, to which the defendant objected, stating as grounds of objection that said ordinance and all parts thereof were incompetent, irrelevant and immaterial, for the reason that it was in conflict with the policy of the laws of the territory of Utah; that the city council of Logan City had no power or authority under the charter of said city to pass said ordinance, and that it was contrary to the laws and policy of the United States. The district court overruled the objections and allowed the ordinance to be received in evidence. There was a verdict of guilty and judgment thereon, a motion for a new trial was filed and overruled and appeal taken to this court.