This action was commenced under Revised Statutes, sections 2325, 2326, to determine the rights of *341adverse claimants to certain mining ground situated, in Shoshone county, Idaho. The complaint sets out the location by plaintiffs of the Tiger lode mining claim, and that the defendants claimed an adjacent mine called the “Poorman lode mining claim,” and that they (defendants) wrongfully caused a survey of said Poorman claim to be made so as to cross upon and overlap the said Tiger claim; that defendants made application for a patent to said Poorman claim; that plaintiffs filed in the land office their adverse claim to that portion of the Poorman which overlapped the Tiger claim, and in due time thereafter commenced this action to sustain their adverse claim. The defendants answered the complaint, denying some of its allegations, and admitting others, and then set up claim to and right of possession in themselves to the area in conflict. . At the April term, 1886, of the district court, the cause came' on for trial. A jury was impaneled, without objection, and the cause tried, as appears from the record, as an action at law before the court and jury. The jury, being unable to agree upon a verdict, were discharged by the court. The defendants then moved for a change of venue, but no order was entered upon the motion.
The defendants next moved the court, “upon the pleadings and all the evidence in the cause, that the court find the facts involved, and render judgment accordingly, upon the ground that it appears from all the evidence that the plaintiffs were, at the time of the commencement of this action, in the possession of, and at all times since have been and now are in the possession of, the ground and premises in controversy, and on the further ground that the evidence and pleadings show that the action is a proceeding in equity, and not at law, and is one peculiarly cognizable by the court, and should be tried by the court.” The court sustained the motion, and rendered its decision upon the evidence and arguments adduced upon the trial. To these rulings and decisions the plaintiffs excepted, and assign the same as error. The appeal is from the judgment, and the questions involved must be determined from the judgment-roll.
The first question is as to the change of venue. The trial court intimated its intention to change the venue to Kootenai *342county, unless counsel agreed upon some other; but no order was made or entered, and hence there was no change, and the court did not lose jurisdiction.
The second and more important question for consideration is whether the court erred in holding that this was a case in equity, and rendering judgment accordingly. Ordinarily this question would not be difficult of solution. It could be readily settled from an examination of the pleadings; but in this case there are able counsel on either side, with years of experience in this class of cases, and it was not until after the preparation of the ease, and a trial before the court and jury covering a period of several days, and an application by respondents for a change of venue, that this question of equity jurisdiction was first suggested. The complaint alleges that on the first day of November, 1885, and prior thereto, the plaintiffs were, and ever since have been and now are, the owners and in possession of the ground in controversy. In another portion of the complaint it is alleged that on the sixth day of November. 1885, the defendants wrongfully entered upon the disputed ground, ousted and ejected the plaintiffs therefrom, and ever since have withheld and still withhold the possession thereof from the plaintiffs, to their damage in the sum of $5,000. After some other averments as to an application for patent, etc., the complaint closes with a prayer for judgment that plaintiffs are the owners and entitled to the possession of the premises, the area in conflict, and for restitution thereof. While the one allegation in the complaint, of possession by plaintiffs when the action was commenced, and the other of ouster by defendants prior thereto, and continued possession by them, are inconsistent averments, yet, as the complaint states a cause of action, and was not questioned by motion or demurrer before trial, we think it too late, after the trial was commenced, to do so. (Brown v. Martin, 25 Cal. 88; Kerr v. Hays, 35 N. Y. 331.)
But counsel for respondents contend that the answer admits the possession of the premises to be in the plaintiffs, and that there was no issue as to possession to try. The portion of the answer referred to reads as follows: “2. Deny that on the sixth day of November, 1885, or at any other time, the *343defendants ousted or ejected the plaintiffs from the ground and premises described in the second subdivision of the complaint, and deny that defendants withhold the possession thereof from the plaintiffs; but, on the contrary, defendants allege that the plaintiffs wrongfully withhold the possession thereof from defendants. 3. Admit that on or about the sixth day of November, 1885, the defendants filed field-notes, a- diagram, and application for patent for the Poorman lode and mining claim in the United States land office at Lewiston, Idaho, and that such field-notes, diagram, and application included the land and premises described in the second subdivision of plaintiffs’ complaint, and allege that the same were lawfully so included. Admit that they caused the register of said land office to give notice by publication of defendants’ application for patent for said Poorman lode.” The answer also denies “that the location of the said Tiger lode mining claim was ever marked upon the ground and premises described in the complaint as overlapped by the Poorman lode mining claim, or any part thereof.”
While these pleadings are somewhat indefinite and uncertain, yet it is clear that the question whether the boundaries of the claims were so established as to conflict with each other was in issue, and also the right to the possession of the disputed ground. As we understand the answer, it admits that defendants were in possession of the Poorman, when the action was commenced, but denies that it overlaps the Tiger, and claims rather that the Tiger overlaps the Poorman. If this •construction of the pleadings be correct, it follows that the right to the possession of the disputed ground was in issue, and this right of possession is the gist of the action — the only thing to be.litigated between the parties. (Gwillim v. Donnellan, 115 U. S. 49, 5 Sup. Ct. Rep. 1110; Killian v. Ebbinghaus, 110 U. S. 568, 4 Sup. Ct. Rep. 232; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289.) The right by which a mining claim is held before patent is a possessory right, which is acquired by discovery, location, and compliance with the laws of Congress, and local laws or customs not in conflict with the laws of Congress.
In Belk v. Meagher, 104 U. S. 283, Mr. Chief Justice Waite, in speaking for the court, says: “Congress has seen fit to make *344the possession of that part of the public lands which is valuable for minerals separable from the fee, and to provide for the existence of an exclusive right to the possession, while the paramount title remains in the United States. In furtherance of this policy it was enacted by section 9 of the act of February 27, 1865, chapter 64 (13 Stats. 441; Rev. Stats., sec. 910), that no possessory action between individuals in the courts of the United States for the recovery of mining titles should be affected by the fact that the paramount title to the land was in the United States, but that each .case should be adjudged by the law of possession.”
Section 2326 (Act Cong., May 10, 1872), Eevised Statutes 427, among other provisions, says: “It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment, and a failure so to do shall be a waiver of his adverse claim.” We understand that an action to determine the right of possession as authorized by this act is in this territory an action at law. If so, the appellants were entitled to a jury, and the court erred in holding the cause was a suit in equity, and in denying the right to a jury trial. (Killian v. Ebbinghaus, 110 U. S. 573, 4 Sup. Ct. Rep. 235.) This view seems to have support in a subsequent statute upon this subject. The effect of the act of Congress of March 3, 1881, amendatory of original section 2326, was that the right of each party to the possession of the property should be tried and determined; and, if neither party established a right to the same, the jury should so find, and judgment should be rendered accordingly.
But it is contended that the form of action must be controlled by our territorial practice act. Section 476 of our Code of Civil Procedure reads: “An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” We see nothing in this statute which attempts to prescribe any particular form of action in the class of cases we have been considering, or that. can be construed against the views herein expressed. We do not decide what would *345be the effect of this local statute in ordinary actions concerning real property, but only that it does not affect this cause. This is a special action, brought under a statute of the United States, and must be controlled by its provisions. (Lee Loon v. Tesh, 68 Cal. 43, 6 Pac. 97, and 8 Pac. 622.)
We are of opinion that the trial court erred in holding that this was a cause in equity, and in denying to the plaintiffs a trial by jury. For this reason the judgment is reversed, and cause remanded to the court below for a new trial in conformity with this opinion. So ordered.