tained, and the remedy at law is inadequate, unless all the rules of practice are to be subverted.

It is intimated that in order to apply section 2326, St. U. S., it may be necessary to vary some of the established rules of practice. That section, however, requires that an adverse claimant must commence proceedings in a court of competent jurisdiction to determine the controversy between the adverse claimants. The claimant must commence proceedings according to the rules of practice of the court in which the action is brought. If the claimant is out of possession, and his adversary in possession, ejectment is the appropriate remedy. If he is in possession, his appropriate remedy is action to quiet title.

In Mining Co. v. Bullion Min. Co., 9 Nev. 240, 1 Morr. Mines, 114, the court says: "Congress did not, by section 2326 or by the acts of July 26, 1866, or July 9, 1870, confer any additional jurisdiction on the state courts. The object of the law, as we understand it, was to require parties protesting the issuance of a patent to go into the state courts of competent jurisdiction, and institute such proceedings as they might, under the different forms of action therein allowed, elect, and try the right of possession. Said section does not prescribe a different form of action. If the parties protesting are in possession of the ground in dispute, they bring their action under section 256 of the civil practice act, or, if they have been ousted from the possession, they should bring their action of ejectment. We are of the opinion that when the action is brought, whatever may be its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes, that apply to such actions in our courts."

This is a clear and comprehensive exposition of the statute as understood by one of the highest courts upon the Pacific coast. I know of no decision of the supreme court of the United States, or of the states or territories, which hold that a different practice should prevail.

If ejectment is not the appropriate remedy, and an action to quiet title is, the only question remaining is: To what jurisdiction does this action belong? Pomeroy, in his Equity Jurisprudence, (volume 3, § 1393,) says it belongs to the original general jurisdiction of equity. Of this there will be no controversy, unless, indeed, it is contended that there is something in section 2326 which changes this remedy from the equity to the law side of the court. It may be argued that this would deprive the parties of the benefit of a jury trial. This would be equally true of all equity cases. I see no reason in the nature of the questions involved which would not apply with equal force to an action of divorce, to reform a written contract on the ground of mutual mistake. The time may come when, under the law, all questions shall be submitted to a jury. At present the law is otherwise, and the court must apply the law to the issues made by the pleadings as it exists. If the issues made are equitable, then, under the authority of Basey v. Gallagher, a jury was discretionary with the court, and their findings but advisory only. ercising its discretion, the court, upon the trial, submitted the issues to a jury. They having failed to agree, the court, exercising its equitable powers, as is common and appropriate in such cases, found the facts in the case, and rendered a decree thereon. There was nothing exceptional in this action. Indeed, the procedure by action to quiet title is the usual one adopted under circumstances like those set forth in the pleadings in the case at bar. Merced Min. Co. v. Fremont, 7 Cal. 317; Pralus v. Pacific G. & S. M. Co., 35 Cal. 34; City of San Diego v. Allison, 46 Cal. 162; Milligan v. Savery, 9 Pac. Rep. 894. In Wolverton v. Nichols, 2 Pac. Rep. 308, the court says: "If the plaintiff is in possession, it may be a question whether, indeed, equity does not afford the only remedy appropriate in this case."

Ex

Section 2326 has the same effect upon the parties claiming the mine that an order of interpleader does upon the parties affected thereby. 3 Estee, Pl. &

Pr. 235, § 4529. The United States holds the title to the premises in dispute, and is ready to transfer to either claimant entitled to receive it; and it directs, in this statute, that they commence an action within a given time to settle their respective claims thereto. This is in precise analogy to an order of interpleader in a court of equity. To this relief in equity there are four essential conditions given in Pomeroy's Equity Jurisprudence, (section 1322,) as follows: (1) The same thing must be claimed by all the parties. (The thing demanded in this controversy is the mining claim in dispute.) (2) All their adverse claims must be derived from a common source. (The adverse claimants in the case at bar claim from the United States.) (3) The person asking the relief must have a claim or interest in the controversy. (The United States has no interest other than to transfer the title to the one adjudged to be entitled to it.) (4) The party praying for interpleader must be indifferent between the parties,-merely a stakeholder (The United States is indifferent in this controversy.) Finally, (section 1325,) the stakeholder must have the thing in his possession, ready to deliver it upon a decree determining who is entitled to receive it. Section 2326 provides that the United States will deliver the patent to the one whom the judgment declares is entitled to it.

For these reasons I dissent from the opinion of the court. He brings his action to quiet title. If not in possession, his action is in ejectment. The plaintiff was nonsuited because the court held he had not proven possession in himself. The supreme court of the United States, in reviewing the case in a decision brought to the attention of this court, and much relied on, overrules the decision of nonsuit on the ground that the evidence established possession in plaintiff, but recognizes the propriety of the action as brought. I think no case has been cited upon the brief or in the arguments that holds that an action to quiet title is not the appropriate remedy by a party alleging possession.

ON PETITION FOR REHEARING.

BRODERICK, J. Since announcing the opinion in this case counsel for respondents have petitioned for a rehearing. In support of this application, numerous authorities have been cited, but very few of them throw any light on the question we have been considering. As, on the hearing, much theorizing has been indulged in on the law of ejectment as it formerly existed and now exists; but we are still unable to see the application of these rules of law to the case at bar. The common-law form of ejectment, with all its fictions, has long since been almost entirely superseded by statutory enactments, so that now, in most of the states and territories, there is substituted an action to recover specific real property, or to recover the possession of real property, which are clearly legal actions. The action to recover real property implies that the defendant is in actual possession by himself or tenant; hence, when it appears upon the trial that the defendant was not in possession when the action was instituted, the plaintiff will be nonsuited. But that is not this case, and there is very little analogy between the two. This is an action to determine the right of possession; and it makes no difference, so far as the form of the action is concerned, who is in possession. We think this view is amply sustained by the authorities.

In Lee Doon v. Tesh, 8 Pac. Rep. 622, the supreme court of California, in considering a case brought under this act of Congress, says: "The action is not brought to recover possession of the property, or damages for a trespass thereon, or to quiet title thereto, but is a special action to determine the right of possession preliminary to the right to purchase from the United States." In Steel v. Gold Lead G. & S. Min. Co., 18 Nev. 87, 1 Pac. Rep. 448, HAWLEY, C. J., in considering the same question, says: "These actions may be brought by the plaintiff, whether he is in or out of possession of the mining ground in controversy; and the only sensible construction of the law is that each party must prove his claim to the premises in dispute, and that the better claim

must prevail." To the same effect is McGinnis v. Egbert, 5 Pac. Rep. 652. Here are the latest adjudicated cases from the three great mining states of the Union, all agreeing that this is a special action, not to recover possession or to quiet title, but to determine who has the right of possession, or, in other words, to determine who is entitled to a patent to the disputed ground. This is the object of the action, and this object must not be lost sight of.

Section 2325, Rev. St., provides how any person entitled to a patent to a mining claim may procure the same where there is no adverse claim. The applicant must show, by his verified application and other proofs, that he has complied with the law in locating, marking the boundaries, etc.; that he has performed the necessary labor, and has in all other respects observed the requirements of the law. After notice of the application has been duly given by the register of the land-office, if no adverse claim has been filed, the applicant will be entitled to and will receive his patent. It will be observed, from an examination of the statute, that the applicant who claims under a location is not required to show actual possession of the claim in order to entitle him to a patent therefor. "Actual possession of a claim is not essential to the validity of the title obtained by a valid location." Belk v. Meagher, 104 U. S. 279.

When, during the period of publication, an adverse claim is filed, the proceedings in the land-office are stayed, and the controversy is transferred to the court for the trial of the questions necessary to determine who is entitled to a patent. In the land-office the controversy is between the applicant and the United States. When transferred to the court, the controversy is between the several claimants and the United States; but the same questions are tried that would have been had the proceeding remained in the land-office, except that the rights of an additional party or parties must be adjudicated in the court. But under the statute there is no issue as to the actual possession of the claim to be tried. It is not an issuable fact in the controversy; and, if it enters into the trial at all, it is only incidentally. It seems to us that any construction of the statute that would make the form of the action dependent on the question of actual possession would, in effect, interpolate into the statute a condition precedent to obtaining a patent to a mining claim which congress has not seen fit to impose.

Clearly, then, the question to be tried in this case is-First, as to the quali fications of the respective parties to hold such property by patent; and, second, the right to the possession of the disputed ground; and, if the jury find in favor of either, the general verdict should be, in substance, that such party has the right of possession to the ground. This strips the action of all fiction and technicality, and determines the facts which the commissioner of the general land-office must know before a patent issues, namely, who, if any one, is entitled to it. By the amendatory act of March 3, 1881, if, on the trial, neither party establishes a right of possession to the claim, nor any part thereof, the jury is required to so find, and neither party will be entitled to a patent. This act indicates clearly that the general government is not a mere “stakeholder," but that it has an interest in these controversies.

Counsel seem to place much reliance on Mining Co. v. Bullion Co., 9 Nev. 248, and Milligan v. Savery, (Mont.) 9 Pac. Rep. 894. The former case was decided before the supplemental act of March 3, 1881, and has since been essentially modified in Steel v. Gold Lead G. & S. Min. Co., supra. The Montana case has been in effect overruled by the supreme court of the United States in Wolverton v. Nichols, supra.

We are also referred to Basey v. Gallagher, 20 Wall. 680. The subject of the controversy in that case was a water ditch, or damages for a wrongful diversion of water, and we cannot see that it is authority in this case.

It is also contended that the words of the statute, "commence proceedings in a court of competent jurisdiction," etc., are significant. We think this

means a court of general jurisdiction, whether federal, state, or territorial. In the territories the district courts are courts of original general jurisdiction, and in these courts a jury trial is allowed as a matter of right in all cases where it was allowed at the common law. This right is secured by the organic acts. Chambers v. Harrington, 111 U. S. 351, 4 Sup. Ct. Rep. 428. It is unnecessary to pursue this subject further. We are still satisfied with the conclusions reached in our former opinion herein. Application for rehearing denied.

HAYS, C. J., concurring.

(5 Utah, 140)

LARKINS v. CHAMBERLIN.

(Supreme Court of Utah. February 2, 1887.)

MEASURE OF DAMAGES-ACTION ON CONTRACT-EVIDENCE.

In an action to recover for breach of an agreement by which defendant bound himself "not to engage in hotel business within the limits of Ogden City during the time plaintiff is proprietor of the Chamberlin House, in said city of Ogden, under that name and style," which agreement is alleged to be part of the consideration for the purchase by plaintiff of said hotel from defendant, testimony, on the issue of damage, as to the value of the property with the contract in force and with it broken is not admissible. BOREMAN, J., dissents.

J. N. Kimball and Sutherland & McBride, for appellant. P. H. Emerson and M. M. Kaighn, for respondent.

ZANE, C. J. This case comes to this court on the defendant's appeal from the judgment against him in the first district court, and from the order denying a new trial. The action was brought to recover damages for the defendant's violation of an agreement made between the parties on the thirteenth of August, 1881, by which he bound himself in these words: That "he will not engage in hotel business within the limits of Ogden City, Utah, during the time the said Larkins is proprietor of the Chamberlin House, in said city of Ogden, under that name and style." On the same day, and as part of the same transaction, as alleged, the defendant conveyed to the plaintiff the hotel mentioned for the consideration of $11,000. The complaint was filed August 5, 1885. The breach and damages are stated thus: "That on or about the first day of September, 1882, said defendant, acting by himself and in connection with others, did erect and furnish in said city of Ogden, and within one square of said original Chamberlin House, a large and commodious hotel building, and has continuously ever since conducted the same as a hotel, and therein lodged, entertained, and fed customers and travelers, and advertised the same, and solicited custom and patronage therefor at the trains, depot, and other places in and about said city of Ogden, and thereby diverted and drew away from plaintiff, guests, customers, and patronage that would otherwise have come to plaintiff's hotel; that thereby, and by reason of the premises, plaintiff has been greatly injured and damaged, to-wit, in the sum of ten thousand dollars." The answer alleges that the agreement was separate from the transaction of the sale and purchase of the hotel, and without consideration; denies the alleged diversion of guests, customers, or patronage from the plaintiff's hotel; and denies the alleged injury therefrom.

As averred, the plaintiff was damaged by the diversion from his hotel of patronage that would otherwise have come to it. The damages consisted in the loss of the profits of the patronage, not in the depreciation of the value of the real estate and other property. The damage to the hotel business was the natural and immediate consequence of the breach. The depreciation of the value of the tangible property was a consequence of the injury and damage to the business. The plaintiff should have claimed special damages in

his complaint, and should have set up the special facts that authorized their recovery if he wished to make such a demand.

On the trial of the case before the court and jury, the witness G. S. Erle, an hotel keeper, was asked by plaintiff to state, in his opinion, the difference in the value of the property with the contract in force and with it broken. To this question the counsel for the defendant objected, on the ground that it was immaterial and irrelevant. The court overruled the objection. The witness then answered that he would say that there was a difference of at least $5,000 in the value of the property. To similar questions by the same party the plaintiff and three other witnesses answered, against the objection of the defendant, substantially to the same effect. The lowest placed the difference at 40 and the highest at 75 per cent. of the purchase price. The question to each witness was objected to by the defendant, but was overruled by the court, and exception was taken. When the question was propounded to one of the witnesses, the objection was on the ground that it was incompetent, as well as irrelevant and immaterial. The ruling of the court, in so permitting these questions to be asked and answered, the defendant assigns as error; and the question presented to us is, was it competent to show, by the opinion of witnesses, the difference in the value of the hotel and other property purchased with the contract sued on in force and with it broken? The agreement prohibited the defendant, within the limits named, from the hotel business during the time plaintiff should be proprietor of the Chamberlin House, under that name. The breach occurred about one year after it was made. How long defendant would continue the business depended on his will; it might be for a short time, or continue as long as plaintiff should keep the hotel purchased by him under the Chamberlin name. The plaintiff might quit keeping the house on any day; he might continue during his natural life; his death might occur at any minute. In either event, the defendant's obligation with respect to the future would instantly cease. Plaintiff could not transfer his good-will by any means. The defendant agreed that plaintiff should have the benefit of his good-will for an indefinite term. The period was indefinite because its duration depended on contingencies that could not be known. Its prospective value could not be ascertained, because the term of its enjoyment could not be known. The value of the good-will with respect to the future must have been conjectural. An opinion as to the value of the use of the name, with the good-will, in connection with the hotel, for a given term, would be heard upon more reliable data, and these data would be more reliable if the term had expired, because the conditions and circumstances attending it and affecting its value could then be seen and understood. By what means can a witness ascertain the definite effect of the good-will on the price or value of the real estate when the term of its enjoyment is so uncertain? Such an opinion must be imaginary, conjectural, and speculative in the extreme. It is not like the benefit of a covenant running with the land accompanying it forever. If the advantages from the absence of another hotel kept by Chamberlin had been secured by the agreement, so that they could be passed by plaintiff, with the realty, to the assignee, lessee, or grantee, its effect upon the market value of the realty could be better estimated.

Various rules are found in the text-books for estimating damages; and their application has been illustrated by the courts in numerous decisions in cases varying in their facts, but we have not been referred to or found any case entirely analogous to this. "As a general rule, the primary and immediate result of the breach of contract can alone be looked to." "The damages which may be recovered are such as naturally and ordinarily flow from the non-performance. They must be proximate and certain, or capable of certain ascertainment, and not remote, speculative, and contingent." Wood's Mayne, Dam. §§ 12, 13, and notes.