2 under the laws of some one of the states, also allege that all its members are citizens of the United States.1 But it can be readily seen that such a requirement as this would be very impracticable, because there is no rule of law that we are aware of, prohibiting aliens from acquiring stock in a corporation; and so a corporation composed entirely of citizens at the date of commencing the action might, by the transfer of a portion or all its stock, be composed of aliens, or aliens and citizens, at the date of trial. What would seem to be a more correct statement of the law is made by the circuit court of appeals for the ninth circuit, where it is held that it is necessary for a corporation to show only its due incorporation and existence under the laws of some one of the states or territories. The Colorado court cites the supreme court of the United States as authority for its position; but it will be seen by an examination of that case that while it is analogous it is not exactly in point. There the court, speaking through Justice Field, holds that a corporation, all of whose members are citizens, may locate and patent a mining claim, without deciding that a corporation, part of whose members are not citizens, may not do so. § 721. Facts necessary to show appropriation and ownership-Right to strengthen title after suit is filed. Such facts should be alleged as will show a valid location in accordance with the United States and local laws, including discovery of mineral on the ground, and also the performance of the labor on the claim, by the claimant and his predecessors, required by such laws; and that the plaintiff or defendant, as the case may be, has fully performed all acts required by law to entitle him to possession and to a patent. In short, all the acts which he must prove on the trial. The rule that a plaintiff in ejectment may not strengthen Thomas v. Chisholm, 13 Colo. 105, 21 Pac. Rep. 1019. 2 Doe v. Waterloo M. Co., 70 Fed. Rep. 455. 3 McKinley v. Wheeler, 130 U. S 630. his title after the bringing of his suit does not apply in this class of cases. Either party may strengthen his title by an amended location notice, and may amend his pleadings to correspond to it even during the trial.1 § 722. Complaint must show previously filed adverse claim. Since, as has been stated, the filing of an adverse claim in the local land office, on the part of the plaintiff, is generally an indispensable prerequisite to the maintenance of an adverse suit in court, this fact should also be alleged in the complaint. But where an action is pending between the parties, involving the right to the ground, at the time of application for patent, an adverse claim may be filed and that fact pleaded in supplemental pleadings in the same suit.4 $723. Joinder of actions - Parties. The plaintiff must join in one action as many conflicts and adverse claims, against the ground applied for, as he may rely on. But where plaintiff has acquired other conflicting areas, as shown by the adverse claims regularly filed in the land of fice, subseqent to the commencement of his action, he may be permitted to amend his pleadings as to such other claims. It is the policy of the statute to have all conflicts, so far as possible, settled by the issuance of the patent, through the adverse proceedings therein provided for. Only those parties are proper parties plaintiff who have 1 Strepy v. Stark, 7 Colo. 614, 5 v. Pac. Rep. 111. See the chapter, "Amendments and Addenda,” ante, Part VII, ch. V. 2 Ante, § 681. 3 Mattingly v. Lewisohn, 8 Mont. 259, 19 Pac. Rep. 310; Cronin v. Bear Creek M. Co., 2 Idaho, 1146, 32 Pac. Rep. 204; Marshall S. M. Co. v. Kirtley. 12 Colo. 410, 21 Pac. Rep. 492; Perego v. Dodge, 163 U. S. 158; Wight v. Du Bois, 21 Fed. Rep. 663; Eureka Cons. M. Co. v. Richmond 4 Shoo Fly, Magnolia et al. v. Mono Lode, Copp's Min. Lands, 146, 149; Swaine v. Craven, 12 L. D. 294. 5 Marshall S. M. Co. v. Kirtley, 12 Colo. 410, 21 Pac. Rep. 492. 6 Lee v. Stahl, 13 Colo. 174, 22 Pac. Rep. 436. joined in the filing of an adverse claim in the land office, and only the patent applicant or applicants are proper parties defendant. A party claiming an adverse interest who has not filed an adverse claim in the land office will not be permitted to intervene in an adverse suit. The commonlaw rule, which requires actions for the possession of real property to be brought by the heirs of a deceased person, applies in adverse suits in the absence of a statutory provision permitting the executor or administrator to maintain such action.3 725. Better title prevails, other things being equal. 726. Burden of proving abandonment or forfeiture. 727. Findings and judgment — Must show which if either party has complied with law, and priority. 728. Must be within scope of pleadings. 729. Judgment of dismissal for failure to prosecute with diligence. § 724. Trial - Burden of proof.- In this class of cases the burden is upon each party to prove title to his claim, regardless of the proof or failure thereof on the part of his adversary. Neither party may rely upon the weakness of his opponent's title in order to recover, but he must depend entirely upon the strength of his own title, and must prove his right to his claim, including the area in conflict, as against his opponent, and sufficient compliance with the law to entitle him to a patent from the United States." And it 1 Mont Blanc G. M. Co. v. De Bour, 61 Cal. 364; Alger Lode, Copp's Min. Lands, 84. Thomas v. Chisholm, 13 Colo. 105, 21 Pac. Rep. 1019; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. Rep. 652; 2 Mont Blanc G. M. Co. v. De Bour, Rosenthall v. Ives, 2 Idaho, 244, 12 supra. Pac. Rep. 904; Bay State S. M. Co. 3 Keeler v. Truman, 15 Colo. 143, v. Brown, 10 Sawy. 243; Manning v. Strehlow, 11 Colo. 451. 25 Pac. Rep. 311. 4 Gwillim v. Donnellan, 115 U. S. 45; Anthony v. Jillson, 83 Cal. 296; 521 Stat. at L. 505; Becker v. Pugh, 9 Colo. 589, 13 Pac. Rep. 906 has been held that proof of compliance with the law, including proof of compliance with the local state laws and district rules,' and of course the citizenship of the parties, are indispensable. For this reason, where the plaintiff fails to prove a compliance with the law and a better right to the area in conflict than that of the defendant, a judgment of nonsuit would not be proper, because the defendant would not be entitled thereon to a decree in his favor for the conflict area. But plaintiff is not required to prove the filing of an adverse claim in the land office, where the allegation in his complaint, to that effect, is not denied by the answer.1 § 725. Better title prevails, other things being equal.Where each party proves such compliance with the law as would, in the absence of conflict, entitle him to a patent for his claim, the one showing the stronger title is entitled to recover in the action. Of course, all other things being equal, if such a thing is possible, the older title prevails. Until the enactment of the statute of 1881,6 the principle of prior in time stronger in right controlled exclusively; and the parties then were obliged to prove only their own title as against each other. This statute, as we have seen, requires both parties to prove a good title and compliance with the law, and when this is done of course the older title prevails. The statute reads: "That if, in any action brought Bay State S. M. Co. v. Brown, 10 3 Iba v. Central Ass'n of Wyoming, 5 Wyo. 355, 40 Pac. Rep. 527-8, 42 Pac. Rep. 20. Anthony v. Jillson, 83 Cal. 296, 23 Pac. Rep. 419; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. Rep. 652; 420 M. Co. v. Bullion M. Co., 8 Fed. Cas. 592. 6 Act of March 3, 1881, 21 Stat. at L. 505; 1 Supp. R. S. U. S., p. 324. 7 Golden Fleece G. & S. M. Co. v. 4 Burke v. McDonald, 2 Idaho, 646, Cable Cons. M. Co., 12 Nev. 312; 420 33 Pac. Rep. 49. 5 Bay State S. M. Co. v. Brown, 10 Sawy. 243; Gwillim v. Donnellan, 115 U. S. 45; Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302; M. Co. v. Bullion M. Co., supra; Eureka M. Co. v. Richmond M. Co., supra; McGinnis v. Egbert, supra, 5 Pac. Rep. 660. See also Jamieson v. Kirk, 98 U. S. 453. pursuant to section twenty-three hundred and twenty-six of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be so entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title." 1 § 726. Burden of proving abandonment or forfeiture. Forfeiture is never presumed. And in adverse suits, as in all actions involving the title to mining property, where one party relies on forfeiture or abandonment on the part of the other, the burden is upon him to establish such forfeiture or abandonment by clear and convincing proof." The reason of this rule is found in the universal doctrine of presumptions, expressed in either one of two ways: duty done, and that a condition once established is presumed to continue. The proof is made as required above whenever it is shown by a preponderance of the evidence that the full amount of annual labor or improvements was not made or expended within a given year, and that advantage was duly taken of the failure before restoration by resumption of work. § 727. Findings and judgment - Must show which if either party has complied with the law, and priority.— The judgment in an adverse suit should be sufficient upon its face to enable the party in whose favor it is rendered to take it to the land office and have patent issued upon it, and to that end it should correctly describe the claim to which the successful party is entitled, including the area in con 1 See note 6, ante, p. 622. 2 Hammer v. Garfield M. Co., 130 U. S. 279; Mattingly v. Lewisohn, 13 Mont. 508, 35 Pac. Rep. 111, 114; Quigley v. Gillett, 101 Cal. 462, 35 Pac. Rep. 1,040; Johnson v. Young, 18 Colo. 625, 34 Pac. Rep. 173-5. On the question of abandonment and forfeiture generally, see ante, Part VIII, ch. III. |