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 jurisdiction 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.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The declaration avers that plaintiffs below, who are also
plaintiffs in error, were the owners of a mining claim in Meagher
County, known as Claim No. 2 below discovery, in Green Horn Gulch,
and that defendant wrongfully entered upon and took possession of a
portion of said claim, and took and carried away large quantities
of gold-bearing earth and gold dust, the property of plaintiffs, of
the value of $15,000.
The answer amounts to a general denial of all the averments of
the complaint.
Bills of exception taken on the trial show that plaintiffs
offered in evidence the record of a judgment in the same court, in
which the defendant in this suit was plaintiff, and the present
plaintiffs and those under whom they claim were defendants, which
was an action for trespass, wherein the same question of
Page 99 U. S. 262
conflicting interference of the two mining claims was in issue,
and the verdict and judgment were for plaintiffs in this suit. The
admission of this record was objected to, and the court sustained
the objection.
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 evidence 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 United
States, and 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 decided by
the jury, it is almost incomprehensible that proof of prior
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 a mere trespasser it is sufficient. 2 Greenl.
Evid., sec. 311. If this be the law, when the right of recovery
depends on the strict legal title in the plaintiff, how much more
appropriate is it as evidence of the superior right of possession
under the acts of Congress which respect such possession among
miners.
If this plain principle of the common law needed support from
adjudged cases, as applicable to the one before us, it may be found
in the courts of California in
Atwood v. Fricot, 17 Cal.
37;
English v. Johnson, id., 107; and
Hess v.
Winder, 30
id. 355.
Page 99 U. S. 263
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. Brown, 94 U. S. 423.
The rejection of the record of the suit of
Rankin v.
Campbell 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 Mining Claim
No. 2, in Green Horn Gulch, and the other under Mining Claim No. 8,
in Confederate Gulch. The issue in both cases was to which claim
did the disputed piece of mineral deposit belong, and if that issue
was not clear, it was competent, under the decisions we have cited,
to show by parol proof that the controversy was over the same
locality, and that the issue had, therefore, been decided against
Rankin.
And this proof the plaintiffs offered, in connection with the
record of the former suit. The exclusion of this evidence was
error.
The principal ground on which the court rejected all this
evidence, and all other evidence offered by the plaintiffs, is that
at the same term of the court, and before the trial, one of the
plaintiffs, in support of an application for a continuance, made an
affidavit in which he stated that he expected to prove by an absent
witness that he had destroyed the original record and laws of Green
Horn Gulch, in which the plaintiffs' claim
Page 99 U. S. 264
is located; that said records and laws established the size,
lines, boundaries, and location of Claim No. 2 below discovery in
said gulch, and that said records showed that the predecessors of
the plaintiffs in interest possessed and occupied this claim, in
accordance with the local rules.
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 of mining
rights, is not the best or the only evidence of priority or extent
of actual possession. It may fix limits to individual acquisition,
the terms and rules for acquiring and transferring mining rights,
as the laws of the state do in regard to ordinary property; but
such rules and customs no more determine who was the first locator
or where he located, than any other competent evidence of that
fact.
Whatever may be the effect given to the record of mining claims
under sec. 5 of the Act of Congress approved May 10, 1872, 17 Stat.
92, it certainly cannot be greater than that which is given to the
registration laws of the states, and they have never been held to
exclude parol proof of actual possession and the extent of that
possession as prima facie evidence of title.
The supreme court of the territory argue that the trial court
can regulate the order of admission of evidence in a case, and
because the plaintiffs did not introduce first of all proof of
their
Page 99 U. S. 265
mining records which were lost, nothing else could be
introduced. For want of these, evidence of actual possession, of
title deeds, of the location of the claim, and the record of the
former suit determining the rights of the parties to the
locus
in quo, were all unavailing and inadmissible.
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
So ordered.