Dissenting. — This case comes up on an appeal from the judgment, and the record properly before the court consists, under section 653 of the Code of Civil Procedure, of a copy of the notice of appeal, of the judgment-roll, and bill of exceptions. There are in the transcript papers and documents not properly a part of the record, and, under the decision in Graham, v. Linchan, 1 Idaho, 780, such documents, improperly inserted in the transcript, cannot be considered. Looking' into the record, it appears that this case came on regularly for trial upon the issues therein on the seventeenth day of May, 1886, at the April term of the district court, in Shoshone county, first judicial district; that a jury was impaneled to try the issues of fact therein, and, having failed to agree, were discharged; that, after the discharge of the jury, the defendant moved the court to find the facts, and render a decree thereon, on the ground that it was a proceeding in equity; that the plaintiffs objected to the decision thereof, claiming that it was a cause for a jury; that, after hearing arguments thereon, the court filed its findings of fact, and rendered decree therein, against the objection of plaintiffs, who duly excepted thereto.
The real question upon the appeal is whether the court had the jurisdiction to decide the case. The jurisdiction o’f the. court is determined by the character of the issues in the case.
In Basey v. Gallagher, 20 Wall. 680, Field, J., says: “But the consideration which the court will give to the questions raised by the pleadings when the ease is called for hearing, whether it will submit them to a jury, or pass upon them without such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential, unless waived; if equitable, the eouyt is not bound to call a jury; and, if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The relief which equity affords must still be applied by the court itself.”
This authority, coming from, the supreme court of the United States, determines the law of the case upon this question. The jurisdiction, then, of the court to decide the case at bar depends upon the issues to be tried. These are determined by the pleadings — both complaint and the answer. Section 357 of our code *347defines an issue to be a fact arising on the pleadings^ maintained by one party, and controverted by the other. Section 359 defines an issue of fact to be a material allegation in the complaint controverted by the answer. An allegation not controverted is not an issue in the case. It is an admitted fact, to be considered as proven.
Looking, then, to the pleadings, we find the first allegation of the complaint to be as follows: “The plaintiffs complain, and for cause of action allege: 1. That on the seventh day of November, A. D. 1885, and long prior thereto, the plaintiffs were, and ever since have been, and now are, the owners, and in the possession, and entitled to the possession, of that certain quartz mine/’ etc., “called the “Tiger lode/ ” etc., describing the same by metes and bounds. The complaint is verified; and, under section 237 of our code, “if the complaint is verified, the denial of each allegation controverted must be specific.” Section 259 provides that every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true. Referring to the answer, the defendant denies as follows: “Deny that the plaintiffs now are, or ever have been, the owners of or entitled to the possession of the ground and premises described in the complaint.” The allegation of plaintiffs, that plaintiffs are now in possession of said premises, is not controverted by defendants, and, by virtue of said section 259, for the purposes of this action, “must be taken as true.”
The defendant has a right, in the conduct of his case, to rely upon its being taken as true, and I know of no power in the court to disregard this provision of the statute. In Gay v. Winter, 34 Cal. 160, Sanderson, J., in announcing the decision of the court, says: “Before entering upon the trial of an action it is of the utmost importance that all doubt, if such there be, as to the issues, should be removed. This is alike important to both parties and to the court. The plaintiff is entitled to an explicit denial of the material allegations of the complaint, or an admission of their truth, either by direct statement or by silence.” In the case at bar the defendant remained silent as to plaintiffs' possession, and under the code said allegation is to be taken as true for the purposes of the action. Sanderson, *348J., says: “It is quite as important for the defendant and the court as to the plaintiff that the issues should be settled in advance." ,1 am unable to see how the court could disregard the rule of the code that plaintiffs’ allegation was admitted and must be taken as true. See Lillienthal v. Anderson, 1 Idaho, 678, which is conclusive as to the admission.
The appellants claim that the pleadings set out an action in ejectment. I denominate the action to recover real property under the code ejectment, and the issue was out of law. But their allegation of possession of the premises described in the complaint, which under the code must be taken as true, precludes it from being ejectment. In Kribbs v. Downing, 25 Pa. St. 404, Black, J., says: “It is not without surprise that we find parties going back to the remote transactions of a former generation, and fishing up a lawsuit from an oblivion of fifty years. It is still stranger to see this done in the form of an ejectment for the whole of the original tract of land, when the plaintiffs are themselves in the actual possession of a part of it." Ejectment is a possessory action, and it cannot be maintained for land of which the plaintiff is himself in possession. If, then, the allegation of plaintiffs is taken as true, this cannot be ejectment.
It is claimed, however, that from a subsequent allegation in the complaint it appears that the plaintiffs are not in possession. (3 Wait’s Actions and Defenses, 78.) The third allegation of complaint is as follows: “Plaintiffs allege that while the said plaintiffs were such owners, and so seised and possessed, and entitled to the possession, of said Tiger lode mining claim and premises, the said defendants did on the sixth day of November, 1885, without right or title, enter into and upon that said portion and part of the said Tiger lode mining claim last above mentioned and described, and oust and eject the plaintiffs therefrom; and ever since the.said sixth day of November, 1885, have withheld, and still withhold, the possession thereof from the plaintiffs, to their damage in the sum of $5,000."
This allegation is evidently intended to set up ouster by defendants. It is in the form prescribed for that purpose. It alleges that defendants ousted plaintiffs, and still withhold possession thereof from plaintiffs. It does not allege that defend*349ants are in possession, but that they withhold the possession from the plaintiffs. What constitutes the withholding of possession in the mind of the pleader does not appear. Possibly the filing a claim for patent is in his estimation the withholding of possession. 'It is such an allegation as allows the pleader to evade the requirements of the statute. It is not direct and positive, as is the allegation of possession in plaintiffs. If intended to be so, it is contradictory. At best, it makes the complaint ambiguous and unintelligible. In such pleading the adversary may demur, on the ground that the same is ambiguous, unintelligible, and uncertain; or, if he thinks he can answer it intelligently, he may do so, and, in the event of a conflict between his construction of it and the pleader’s, the pleading will be construed against the pleader. (2 Wait’s Practice, 334; Landers v. Bolton, 26 Cal. 418.)
In Clark v. Dillon, 97 N. Y. 373, the court says: “A construction [drawing] of doubtful or uncertain allegations in a pleading which enables a party, by thus pleading, to throw upon his adversary the hazard of correctly interpreting their meaning, is no more allowable now than formerly; and, when a pleading is susceptible of two meanings, that shall be taken which is most unfavorable to the pleader.” (Clark v. Jones, 49 Cal. 618.)
In Landers v. Bolton, above cited, Sawyer, J., says: “The allegations of a pleading are to be taken most strongly against the pleader. The presumption is that he will state his case as strongly in his own favor as the facts will justify.” (2 Wait’s Practice, p. 334, sec. 1; Bates v. Rosekrans, 23 How. Pr. 102.)
In Nation v. Cameron, 2 Dak. 362, 11 N. W. 525, the court says that “ambiguities arising on the face of the pleadings are to be construed against the pleader.”
In Burke v. Water Co., 5 Morr. Min. Rep. 211, an action in ejectment, the court says: “The complaint charges that the defendant, the Table Mountain Water Company, was in possession. The answer of the company does not deny this averment. This admission is conclusive evidence of the fact admitted.” In the case at bar the plaintiff alleges possession in himself, and the defendant does not deny it. Is not the admission equally conclusive? Can he deny possession upon the trial, against his own allegation in the complaint?
*350In Butler v. Kaulback, 8 Kan. 672, the court says: “Facts admitted by the pleadings cannot be disputed by the evidence, but must.be taken as true for the purposes of the action. It is impossible that a thing be true and untrue at the same time.”
In Board v. Shaw, 15 Kan. 34, the court says: “On the trial of a cause the whole pleadings are considered together; and, where two allegations of the same party are inconsistent with each other, the allegation most unfavorable to such party will be deemed to override the other allegation.” To the same effect, Natchez v. Minor, 9 Smedes & M. 544, 48 Am. Dec. 731, and Burrows v. Yount, 6 Blackf. 458, 39 Am. Dec. 439.
The pleadings are not merely construed most strongly against the pleader by the courts, but it was the province of, and, indeed, it is necessary for, the defendant to construe the allegations of the complaint in making his answer. In Clark v. Dillon, above cited, the court says: “It is in the nature of things that a party who is required to frame his issues for the information of his adversary and the court must be responsible for any failure to express his meaning clearly and unmistakably. While it is competent for a party to move to make the pleadings of his adversary more definite and certain, yet, inasmuch as it is the primary duty of the party pleading to present a clear and unequivocal statement of his allegations, the onus of having them made so cannot he cast upon his adversary by his own fault in failing to perform his duty.”
In the complaint in the action at bar there is a positive allegation of possession in the plaintiff of the premises in dispute and an equivocal allegation of possession in defendant, and ouster by defendant. The defendant, in answering, exercised his prerogative in the interpretation of the allegations in the complaint, admitted possession in plaintiffs, and denied ouster and possession in himself; and, under our code, possession in plaintiffs must be taken as true for the purposes of this action. The court, in determining the character of the action to be tried, must do so upon an inspection of the issues made by the pleadings. If it be true that an action of ejectment cannot be maintained by one in possession of the premises in controversy, it follows that the case at bar is not in the nature of an action in ejectment, and that the title to the disputed premises cannot be *351determined by this action nnder tbe issues made in the pleadings, except it be considered an action to determine the adverse claim of defendants to the premises in dispute nnder section 476 of onr code. “This action is brought under section 2326 of the United States Statutes, to determine the adverse claim of parties- to the mining claim in dispute.” Section 476 of our code provides that “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.” Under such provision of the code, action may be brought by one in possession. This action is denominated an action to quiet title, and “is the converse of the legal action of ejectment.” (Pomeroy’s Eemedies, 415.) In many states this action is confined to parties plaintiff in possession. Under our code the plaintiff may be either in or out of possession, and the adverse party must claim an interest adverse to the plaintiff. In Curtis v. Sutter, 15 Cal. 262, Field, J., says: “It enlarges the class of eases in which equitable relief could formerly be sought in quieting title.” In Pomeroy’s Equity Jurisprudence (volume 3, page 435, section 1399) the principle is stated that equity will exercise this jurisdiction where the estate or interest is legal, when the remedies at law are inadequate. In the case at bar, the plaintiff being in possession, the legal action of ejectment cannot be maintained, 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 of the United States Statutes, 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 Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 9 Nev. 240, the court says: “Congress did not, by section 2326, or by the acts of July 26, 1866, of July 9, 1870, confer any ad*352ditional 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 holds 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, section 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, 20 Wall. 680, a jury was discretionary with the court, and their findings but advisory only. Exercising its discretion, the court, upon the trial, submitted the issues to a jury. They *353having 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, 68 Am. Dec. 262; Pralus v. Mining Co., 35 Cal. 34; City of San Diego v. Allison, 46 Cal. 162; Milligan v. Savery, 6 Mont. 129, 9 Pac. 894.) In Wolverton v. Nichols, 5 Mont. 89, 2 Pac. 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 m this case.”
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’s Pleading and Practice, 235, sec. 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 de- ■ liver 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. *354He brings his action to quiet title. If not in possession, bis 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.