Campbell v. Rankin, 99 U.S. 261

Campbell v. Rankin.

1. An affidavit for the continuance of a cause does not become a part of the record, so that effect can be given to it during the trial, unless it is properly introduced as evidence for some legitimate purpose by one of the parties.

2. In trespass quare clausum fregit, actual possession of the land by the plaintiff is sufficient evidence of title to authorize a recovery against a mere trespasser.

3. The judgment of a court of competent j'urisdiction is, as to every issue decided in the suit, conclusive upon the parties thereto, and in a subsequent suit between them parol evidence, whenever it becomes necessary in order to show what was tried in the first suit, is admissible.

4. While the record of a mining district is the best evidence of the rules and customs governing its mining interests, it is not the best or the only evidence of the priority or extent of a party’s actual possession.

5. The fifth section of the act entitled “ An Act to promote the development of the mining resources of the United States,” approved May 10,1872 (17 Stat. 91), gives no greater effect to the record of mining claims than is given to the records kept pursuant to the registration laws of the respective States, and does not exclude as prima facie evidence of title proof of actual possession, and of its extent.

Error to the Supreme Court of the Territory of Montana. The facts are stated in the opinion of the court.

■Mr. J. Hubley Ashton and Mr. Nathaniel Wilson for the plaintiffs in error.

Mr. Justice Miller delivered the opinion of the court.

The declaration avers that plaintiffs below, who are also paintiffs in error, were the owners of a mining claim in ^eagher County, known as Claim No. 2 below discovery, in rreen Horn Gulch, and that defendant wrongfully entered upon and took possession of a portion of said claim, and took an. away large quantities of gold-bearing earth and gold-dust, the property of plaintiffs, of the value of $15,000.

Plaintiffs then offered to prove that they had been in actual possession of Claim No. 2 in Green Horn Gulch for several years, and that defendant had admitted in conversation the existence of such a claim, and had conceded a dividing line between his claim and that of plaintiffs, which would give to the latter the ground in controversy. The court refused this also.

Plaintiffs then offered in evidence a deed from Harding & Wilson for Claim No. 2, Green Horn Gulch, dated December, 1869, and proof of occupancy and use of it ever since. The court rejected this also. And having rejected all the evidenc'e offered by plaintiffs, it directed the jury to find for defendant, and on that verdict rendered a judgment, which was affirmed on appeal by the Supreme Court of the Territory. < The record sufficiently shows that neither party to this suit had any legal title to the locus in quo from the Dnited States, arid that the controversy involves only such possessory right as the act of Congress recognizes in the locator and occupant of a mining privilege.

Since this right of possession was the matter to be decide by the jury, it is almost incomprehensible that proof of pnof occupancy, and especially when accompanied by a deed showing color of right, should be rejected.

In actions of ejectment, or trespass quare clausum fregit, possession by the plaintiff at the time of eviction has always been held prima facie evidence of the legal title, and as against mere trespasser it is sufficient. 2 Greenl. Evid., sect. 31. this be the law, when the right of recovery depends on the strict legal title in the plaintiff, how much more appropriate it as evidence of the superior right of possession under t of Congress which respect such possession among miners.

If this plain principle of the common law needed suppo from adjudged cases, as applicable to the one before us, i be found in the courts of California in Atwood n. Eneot, 1 • 37 ; English v. Johnson, id. 107; and Hess v. Winder, 301 -

The court below erred, therefore, in rejecting this evidence of plaintiffs’ prior possession.

Whatever may have been the opinion of other courts, it has been the doctrine of this court in regard to suits on contract ever since the case of the Washington, Alexandria, $ Georgetown Steam Packet Co. v. Sickles (24 How. 333), and in regard to actions affecting real estate, since Miles v. Caldwell (2 Wall. 35), that whenever the same question has been in issue and tried, and judgment rendered, it is conclusive of the issue so decided in any subsequent suit between the same parties ; and also, that where, from the nature of the pleadings, it would be left in doubt on what precise issue the verdict or judgment was rendered, it is competent to ascertain this by parol evidence on the second trial. The latest expression of the doctrine is found in Cromwell v. County of Sac, 94 U. S. 351; Davis v. Drown, id. 423.

The rejection of the record of the suit of Pankin v. Campbell and Others was in direct conflict with this doctrine. In that case Rankin had brought an action of the same character as the one he is now defending, against the parties who are now plaintiffs, and had a verdict and judgment against him. The record in that case, as in this, shows that one party claimed under ining Claim No. 2, in Green Horn Gulch, and the Other

un er Mining Claim No. 8, in Confederate Gulch. The issue in oth cases was to which claim did the disputed piece of minora eposit belong; and if that issue was not clear, it was competent, under the decisions we have cited, to show by parol P oo that the controversy was over the same locality, and that e issue had, therefore, been decided against Rankin.

r ^r°°^ P^inbiffs offered, in connection with the

° former suit. The exclusion of this evidence was error.

This affidavit, made in support of an application for continuance, which was overruled, the judge, of his own motion, treated as part of the record, and as before him on the trial, though not offered by either party ;.and as well as we can understand it, excluded all other evidence of the possession and location and validity of the plaintiffs’ claim, because this lost record was the best evidence, and all other was secondary or inferior.

It is difficult to argue this proposition seriously. The affidavit was in no judicial sense before the court on the trial, and could only be used, if at all, when introduced by one of the parties for some legitimate purpose. If it had been so presented by the defendant, it plainly showed that this better evidence was destroyed and could not be produced, and was a sufficient foundation for the use of secondary evidence.

But the local record of a mining community, while it may be and probably is the best evidence of the rules and customs governing the community, and to some extent the distribution o mining rights, is not the best or the only evidence of priority or extent of actual possession. It may fix limits to indivi ua acquisition, the terms and rules for acquiring and transf mng mining rights, as the laws of the State do in regard to or i y property; but such rules and customs no more determine was the first locator or where he located, than any ot er com petent evidence of that fact. .

Whatever may be the effect given to the record of mining claims under sect. 5 of the act of Congress approve y 1872 (17 Stat. 92), it certainly cannot be greater than which is given to the registration laws of the States, an have never been held to exclude parol proof of actua po and the extent of that possession as prima facie evi e

^The Supreme Court of the Territory argue that the

We know of no rule of law which justifies this action.

The judgment of the Supreme Court of Montana will be reversed, and the cause remanded to that court with directions to order a new trial; and it is