Burke v. McDonald , 2 Idaho 339 ( 1887 )

HAYS, C. J.,

Concurring. — I think the rights of the parties to this proceeding purely legal, dependent upon their legal status, such as citizenship, and their having complied with the requirements of the mining laws and regulations. When this has been shown, they have a legal right to demand a judgment of the court that they are entitled to the “right of possession” of the premises in controversy, or so much thereof as the facts warrant, and upon the proof of this judgment they will be entitled to their patent, upon compliance with the other requirements of section 2326 of the Revised Statutes of the United States. All that was necessary to allege in the pleadings herein were the ultimate facts that would have authorized the respective parties to have made the required proof, showing such citizenship, and compliance with the requirements of law. It is immaterial whether they are in or out of possession of the premises at the time of the bringing of the action, as it is not an equitable proceeding to remove a cloud from or to quiet the title to realty; nor is it an action at law simply to recover possession thereof. It is to determine the right of possession alone; for upon that the patent issues, when the requisite proof and payment are made. The pleadings in this case, I fear, were so redundant as to have confused the parties, and misled the court. The purpose of our code is to secure clearness, conciseness, and-truthfulness in pleadings, and thereby accuracy in the issue. I commend its spirit to the consideration of counsel.

I concur in the opinion that the judgment of the court below should be reversed, and that a new trial should be granted.