Title lost after suit brought. Where it is claimed that the plaintiff's right has terminated during the pendency of the action, the fact can not be shown unless pleaded by a supplemental answer by defendant; otherwise if the fact appears from the plaintiff's own evidence.

1 Patent after suit brought. A patent from the government to the defend int for the premises in dispute, issued after the commencement of the suit, must be pleaded by a supplemental answer.

A patent when granted relates back to the first initial valid step, which is the foundation of the right and in pursuance of which the patent is issued.

Idem-Location-Certificate in aid of patent.

As a location notice in the acquisition of mineral lands is the first step in that direction. the same is proper evidence in connection with the patent to show the claim to which the patent refers.

Distinction between expert and ordinary testimony. Expert testimony is given on questions of science, skill or art. On matters of common observation the witness states the facts only but the expert is allowed to add his opinion.

On the issue of vein continuity expert testimony is admissible. Opinions of experts are not the safest evidence, but when they constitute the best available form of evidence, are resorted to from necessity. Defendant not confined to one title. In ejectment, under a claim of the defendant that he is the owner of the vein in controversy, he can support such claim by showing all the titles he may have covering the ground sued for.

Distinction between law and equity inherent. While the forms of action have been abolished by the code, the inherent distinction between legal and equitable causes of action, and the remedies appropriate to each. are not changed.

2 A patent may be attacked at law, where void on its face or issued without authority, or against authority, or where the government had no title: but where the government had title and it passed by the grant, it can not be attacked at law upon the pretense either of fraud or superior equities. The want of authority which will make a patent void is a total want of authority to issue the same for the subject of the grant, and not a latent impropriety in exercising the authority by reason of unknown impositions moving to its exercise.

An equitable defense may be set up in ejectment, but such defense must contain all the essentials of a bill in equity, and the issue thus made is triable by the court, without a jury, as an equitabl › issue.

This rule does not avail a plaintiff who bases his claim on a legal title, and is met by a superior legal title of defendant; in such case he can not be permitted to attack the title of defendant on purely equitable grounds.

1 McEvoy v. Hyman, 25 Fed. 539.

2 Meyendorf v. Frohner, 5 M. R. 560; Boggs v. Merced Co., 10 M. R. 334; Wells v. Francis, 7 Colo. 396; Poire v. Wells, 6 Colo. 406.

In ejectment the quest'on is as to who has the bitter tie; but before a defendant can prevail on an inferior or equitable title, he must first become an actor and invoke equitable affirmative relief.

Statutory denials of answer. Where the statute provides that the allegations of the answer shall be deemed to be denied, this does not take the place of a bill in equity on which to grant affirmative relief.

Scope of a mining patent. A patent to a mining claim passes whatever title the government had to the surface and any vein or veins beneath it not otherwise granted; and its issuance presumes a compliance with the mining laws.

Grantee not e t pped-Buying one's peace. One who purchases an adverse title to his premises is not estopped from denying that such title is not good. One has a right to "buy his peace.”

A notice of location of a mining claim should contain a description of the premises located, and the same should be marked on the ground.

Appeal from the Third Judicial District Court.

The facts appear in the opinion.

ROBERTSON, MCBRIDE & HOFFMAN, for appellant.

BENNETT & HARKNESS, for respondents.

EMERSON, J., delivered the opinion of the court.

The appellant, who was plaintiff in the court below, in April, 1876, brought an action of ejectment against the respondents, to recover an undivided one third of the Montreal mining claim, and in his complaint sets out a possessory title under a location of the claim on the 6th day of June, 1873, and a subsequent compliance with the mining laws and customs by the locators and their grantees. The appellant alleged title by a grant of one third (five hundred feet) from two of the locators, on the 19th day of December, 1874; an ouster by respondents, April 10, 1876, and a subsequent unlawful withholding.

The complaint also contains a second and equitable cause of action for an accounting for one third of the profits of working the mine and asking both a provisional and a perpetual injunction and a receiver.

In May, 1876, the respondents answered to the first cause of action by denying the title of the appellant, and the alleged possession and ouster, and to the second cause of action by further setting up a possessory title to an older mining claim called

the No You Don't, and that the alleged Montreal vein, and the only vein in that claim, was a part of the No You Don't vein, and belonged to the respondents.

In this part of the answer the respondents admitted they were in possession of the vein, claiming to own it, but they set up no claim of title to Montreal surface ground.

The facts set out in the answer to the second cause of action were pleaded both as a defense, and as a counter-claim and basis for affirmative equitable relief, quieting their title, and for an injunction.

To this part of the answer, as a counter-claim, the appellant interposed a demurrer, which was not disposed of until after the trial of the law issue.

On the 10th of March, 1877, the respondents, on motion, were permitted to file a supplemental answer, in which they set up that since the commencement of the action they had acquired patent title from the United States for the No You Don't, the Nez Perces Chief, the Third Westerly Extension of the Telegraph, the Roman Empire, and the Montana mining claims, and also a certain interest in the Grecian Bend mining claim; that all these were on the same lode or vein; that the course and apex of the lode was in the No You Don't claim on the top of the hill, and that the parallel end lines of the No You Don't claim extended vertically and continued in their own direction down the dip of the vein toward the Montreal mining claim, including all of the vein in the Montreal; also, that the other claims mentioned, with a like extension of the end lines, would include, some of them all and others a portion of the vein in the Montreal. That a portion of the surface ground of the Montreal was within each of the Montana, the Roman Empire and the Grecian Bend mining claims, and that the Roman Empire embraced the Montreal discovery point.

The locations of these claims, excepting the Nez Perces Chiei, are alleged to be prior to the location of the Montreal.

The motion for leave to file this supplemental answer was served by the respondents on the appellant, and a copy of the answer was served with the motion papers.

A jury trial was had in the Third District Court, commencing April 30, 1877, which resulted in a verdict and judgment for the respondents.

A motion for a new trial was made and overruled, and the appellant brings the case to this court on an assignment of various errors in law occurring at the trial.

Before the trial commenced the appellant filed his motion to strike out parts of the supplemental answer, on the ground that the parts mentioned in the motion were immaterial, redundant and irrelevant, constituted no defense, and that many of the facts existed at the time of filing, and were inconsistent with the original answer. The parts sccified in the motion included the whole of the supplemental answer except a few introductory lines.

The refusal of the court to grant the motion is the first alleged error.

The Practice Act, C. L., § 1291, provides that "the plaintiff and defendant respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer; that the making of supplemental complaint or answer shall not be a waiver of the cause of action set up in the former complaint, or of the defense set up in the former answer."

C. L., § 1282, provides that, "if irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court on motion of any person aggrieved thereby."

It is also provided, C. L., § 1481, that "in an action for the recovery of real property, when the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment shall be according to the fact, and the plaintiff may recover damages for withholding the property."

The respondents in their original answer to the first cause of action had not set out any title in themselves. On the trial under that answer, they could have shown in themselves any title or titles sufficient or tending to defeat the action, and which they held at the time of its commencement. Had they then held the titles set out in the supplemental answer, it would not have been necessary to plead them specially, but as they accrued afterward, it was necessary to set them out specially, in order to comply with the provision of the statute

that the facts material to the case," arising subsequent to the former pleading, must be alleged, and in order to enab'e the court, on motion, to see that the alleged facts are material. Neither could the respondents en trial, and without a supplemental answer, have put these patents in evidence, under § 1481, for the purpose of defeating the action from the date of the patents, and limiting a recovery of damages to that time: Moss v. Shear, 30 Cal. 467; Hardy v. Johnson, 1 Wall. 374; Bagley v. War 1, 37 Cal, 121; Reily v. Lancas ter, 39 Cal. 354.

These decisions are made under the same statutes as ours, and in effect limit the words "but if it appears that his (plaintiff's) right has terminated during the pendency of the action," occurring in § 1481, to cases where it so appears on the plaintiff's evidence, and they expressly decide that the affirmative fact that the plaintiff's right has ceased pending the action can not be shown as a defense unless pleaded supplementally.

It therefore appears that the respondents could have made no use of these patent titles unless they were pleaded in a supplemental answer.

The titles set out in the supplemental were not inconsistent with the original answer, which set out no special title in the respondents, and they were not immaterial because it is alleged each covers and grants some part of the demanded premises.

A patent from the United States for any portion of the premises in controversy can not be immaterial or irrele vant as evidence of title in an action of ejectment.

It is further argued that the supplemental is inconsistent with the original answer because it pleads several patents, and hence assumes as many different veins, while the original answer alleged one continuous vein from the No You Don't down to and beneath the surface of the Montreal. This last allegation is found in the answer to the equitable cause of action, and assuming that that answer constitutes a part of the pleadings on the law issue (a position not aflirmed or denied) it is not clear that there is any inconsistency in this respect. This question will be more fully considered hereafter in connection with other alleged errors.