MR. CHIEF JUSTICE BRANTLY,
after stating the case, delivered the opinion of the Court.
The only question presented upon this appeal arises upon the correctness of the action of the district court upon the demurrer. It is conceded by the appellants that the proceedings of the land department of the United States in the disposition of the public lands are judicial in their character, and that the determinations therein by the proper officers, acting within their jurisdiction, upon questions of fact, or of mixed law and fact, are conclusive upon the courts, and cannot be revised or disturbed by them. The contention is made, however, that the courts, while recognizing the dignity of a patent from the government, may, nevertheless, through their equitable powers, control and limit its operation in accordance with the principles of common justice as between the grantee of the legal title under the patent and others who [249]*249have the beneficial interest in the land conveyed; that section 2322 of the Revised Statutes of the United States secures to the locator of a mining claim valuable property rights which cannot be taken away by the government or any person 'except by due process of law which affords reasonable notice and an opportunity to be heard; that when a valid relocation of a claim has been made after forfeiture of the original location pending a suspended application for patent by failure on the part of the applicant to do annual representation work pending the suspended proceedings, and before payment to the government by the applicant, the relocation wipes out the original location completely, and gives to the second locator all the rights conferred by the original location; and that if, after the relocation is completed, the first locator proceeds under his. suspended application to make payment, and thus secures a patent without publication of an additional notice, and without the knowledge of the second locator, a wrong is thus committed upon the second locator, which a court of equity will redress by holding the patentee a trustee for the second locator. This argument proceeds upon the assumption that it is incumbent upon the officers of the land department under these circumstances to require a new notice to be published when the proceedings for patent are resumed, and that the failure in this particular on their part is such a mistaken application of the law to the facts of the case that a court of equity ought to intervene and correct the wrong thus done by decreeing the legal title to the rightful owner. This is upon the principle that one who wrongfully ' obtains the title to land which, in equity and good conscience, belongs to another — whether it be done in good faith or not — will be charged as trustee for the latter.
It is well settled that under our system equitable defenses, like the one sought to be invoked here, as well as defenses at law, may be interposed in actions in ejectment. In such cases however, the answer is in the nature of an original bill in equity, and must contain all the allegations necessary to constitute the defense or warrant the relief sought. (Reece v. [250]*250Roush, 2 Mont. 586; Lamme v. Dodson et al., 4 Mont. 560, 2 Pac. 298.) It must disclose a case, which, if established by proof, would constitute a bar to plaintiff’s case, and justify a decree granting appropriate affirmative relief to defendant, such as is demanded in this case. Assuming, for the purpose of this discussion, without deciding the question, that the law is as defendants assert it to be, and that this court would be warranted, in a proper case, in granting appropriate relief, the defendants do not disclose a case calling for its application. It is incumbent upon them to show such facts as that it will appear therefrom that they have connected themselves with the original source of title in the government, and that their rights are injuriously affected by the existence of the patent. They must show such equities in themselves as will control the legal title in plaintiffs’ hands. (Foss v. Hinkell, 78 Cal. 158, 20 Pac. 393; Chapman v. Quinn, 56 Cal. 266; South End Mining Co. v. Tinney 22 Nev. 19, 35 Pac. 89; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611; Boggs v. Merced Mining Co., 14 Cal. 279; Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. Ed. 201; Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 523; Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; Morre v. Robbins, 96 U. S. 530, 24 L. Ed. 848; Steel v. Smelting & Refining Co., 106., U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226; Johnson v. Towsley, 80 U. S. (13 Wall.) 72, 20 L. Ed. 485; Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423.) making the statement in another form, the defendants stand in no attitude to question the title of plaintiffs unless by their allegations they present facts showing not only that at the time the patent was issued to plaintiffs they (plaintiffs) were not entitled to it by reason of their failure to perform the conditions required by law, but also that they themselves have performed all the conditions necessary to entitle them to demand a patent from the government. The rule is deduced from the. cases cited: That, after the patent has passed to the entryman, mere strangers will not be heard to question the validity of [251]*251the proceedings by which the patent was obtained. In such cases the government only can contest its validity in proceedings properly brought to set it aside.
The defendants, in order to show their right to a patent, attempt to allege a forfeiture by tbe plaintiffs during the years 1889, 1890, and 1891, and a relocation of the ground covered by the Clementh lode by Sla and Burridge in 1892 under the name of the “Minnehaha Lode.” Their averment in this connection is that ‘ ‘they (plaintiffs) failed and neglected to do and perform one hundred dollars’ worth of work or labor, or any work or labor, thereon during these years. ’ ’ The language of the statute (Rev. St. U. S. Sec. 2324) is: “On each claim * * * not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year. ” It is the well settled doctrine that the annual expenditure required by the foregoing provision may be made either in labor or improvements put upon the claim itself, or upon one of a group of contiguous claims to which the particular claim belongs, or, in some instances, upon adjoining ground not included in any claim. (2 Lindley on Mines, Sections 629-631; Smelting Co. v. Kemp, supra; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Book v. Justice Mining Co. (C. C.) 58 Fed. 106; Rev. St. U. S. Sec.
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MR. CHIEF JUSTICE BRANTLY,
after stating the case, delivered the opinion of the Court.
The only question presented upon this appeal arises upon the correctness of the action of the district court upon the demurrer. It is conceded by the appellants that the proceedings of the land department of the United States in the disposition of the public lands are judicial in their character, and that the determinations therein by the proper officers, acting within their jurisdiction, upon questions of fact, or of mixed law and fact, are conclusive upon the courts, and cannot be revised or disturbed by them. The contention is made, however, that the courts, while recognizing the dignity of a patent from the government, may, nevertheless, through their equitable powers, control and limit its operation in accordance with the principles of common justice as between the grantee of the legal title under the patent and others who [249]*249have the beneficial interest in the land conveyed; that section 2322 of the Revised Statutes of the United States secures to the locator of a mining claim valuable property rights which cannot be taken away by the government or any person 'except by due process of law which affords reasonable notice and an opportunity to be heard; that when a valid relocation of a claim has been made after forfeiture of the original location pending a suspended application for patent by failure on the part of the applicant to do annual representation work pending the suspended proceedings, and before payment to the government by the applicant, the relocation wipes out the original location completely, and gives to the second locator all the rights conferred by the original location; and that if, after the relocation is completed, the first locator proceeds under his. suspended application to make payment, and thus secures a patent without publication of an additional notice, and without the knowledge of the second locator, a wrong is thus committed upon the second locator, which a court of equity will redress by holding the patentee a trustee for the second locator. This argument proceeds upon the assumption that it is incumbent upon the officers of the land department under these circumstances to require a new notice to be published when the proceedings for patent are resumed, and that the failure in this particular on their part is such a mistaken application of the law to the facts of the case that a court of equity ought to intervene and correct the wrong thus done by decreeing the legal title to the rightful owner. This is upon the principle that one who wrongfully ' obtains the title to land which, in equity and good conscience, belongs to another — whether it be done in good faith or not — will be charged as trustee for the latter.
It is well settled that under our system equitable defenses, like the one sought to be invoked here, as well as defenses at law, may be interposed in actions in ejectment. In such cases however, the answer is in the nature of an original bill in equity, and must contain all the allegations necessary to constitute the defense or warrant the relief sought. (Reece v. [250]*250Roush, 2 Mont. 586; Lamme v. Dodson et al., 4 Mont. 560, 2 Pac. 298.) It must disclose a case, which, if established by proof, would constitute a bar to plaintiff’s case, and justify a decree granting appropriate affirmative relief to defendant, such as is demanded in this case. Assuming, for the purpose of this discussion, without deciding the question, that the law is as defendants assert it to be, and that this court would be warranted, in a proper case, in granting appropriate relief, the defendants do not disclose a case calling for its application. It is incumbent upon them to show such facts as that it will appear therefrom that they have connected themselves with the original source of title in the government, and that their rights are injuriously affected by the existence of the patent. They must show such equities in themselves as will control the legal title in plaintiffs’ hands. (Foss v. Hinkell, 78 Cal. 158, 20 Pac. 393; Chapman v. Quinn, 56 Cal. 266; South End Mining Co. v. Tinney 22 Nev. 19, 35 Pac. 89; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611; Boggs v. Merced Mining Co., 14 Cal. 279; Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. Ed. 201; Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 523; Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; Morre v. Robbins, 96 U. S. 530, 24 L. Ed. 848; Steel v. Smelting & Refining Co., 106., U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226; Johnson v. Towsley, 80 U. S. (13 Wall.) 72, 20 L. Ed. 485; Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423.) making the statement in another form, the defendants stand in no attitude to question the title of plaintiffs unless by their allegations they present facts showing not only that at the time the patent was issued to plaintiffs they (plaintiffs) were not entitled to it by reason of their failure to perform the conditions required by law, but also that they themselves have performed all the conditions necessary to entitle them to demand a patent from the government. The rule is deduced from the. cases cited: That, after the patent has passed to the entryman, mere strangers will not be heard to question the validity of [251]*251the proceedings by which the patent was obtained. In such cases the government only can contest its validity in proceedings properly brought to set it aside.
The defendants, in order to show their right to a patent, attempt to allege a forfeiture by tbe plaintiffs during the years 1889, 1890, and 1891, and a relocation of the ground covered by the Clementh lode by Sla and Burridge in 1892 under the name of the “Minnehaha Lode.” Their averment in this connection is that ‘ ‘they (plaintiffs) failed and neglected to do and perform one hundred dollars’ worth of work or labor, or any work or labor, thereon during these years. ’ ’ The language of the statute (Rev. St. U. S. Sec. 2324) is: “On each claim * * * not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year. ” It is the well settled doctrine that the annual expenditure required by the foregoing provision may be made either in labor or improvements put upon the claim itself, or upon one of a group of contiguous claims to which the particular claim belongs, or, in some instances, upon adjoining ground not included in any claim. (2 Lindley on Mines, Sections 629-631; Smelting Co. v. Kemp, supra; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Book v. Justice Mining Co. (C. C.) 58 Fed. 106; Rev. St. U. S. Sec. 2324.) The outlay is to be regarded as made upon the claim, within the meaning of the statute, whenever it is made for the development of the claim, and to facilitate the extraction of the minerals it may contain. (Smelting Co. v. Kemp, supra.)
The plea, of forfeiture is in the nature of a confession and avoidance. It admits a prior right in the plaintiff, which would have continued but for the entry and location by the defendant, which, under the mining law, has terminated it. (Morenhaut v. Wilson, 52 Cal. 263.) One who relies upon such a plea, must set forth the facts upon which he relies to overturn the prior right of his adversary, and establish them by clear and convincing proof. (Renshaw v. Switzer, 6. Mont. 464, 13 Pac. 127; Wulf v. Manuel, 9 Mont. 286, 23 Pac. 723; Mattingly et al., v. Lewisohn, 18 Mont. 508, 35 [252]*252Pac. 111; Strasburger et al. v. Beecher, 20 Mont. 143, 49 Pac. 740; Hammer v. Garfield Mining and Milling Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964.) He assumes the burden of pleading and proving that the prior owner has done none of the acts which, under the statute, he may do to preserve his right. The allegation quoted from the answer is not sufficient. True, it negatives the doing of any “work or labor” upon the Clementh claim during the years 1889, 1890, and 1891, and this constructively excludes the idea that any expenditure was made in this way on any adjoining ground for the benefit of the claim; but the terms “work” and “labor” are not synonymous with the term “improvements.” The former have reference to prospecting and excavating for the purpose of development; while the latter, though comprehensive enough to include everything signified by the former, has reference also to tangible, material additions to the claim in the way of machinery, buildings, and other structures put in place or erected for the purpose of developing the property and extracting minerals contained in it. Therefore, merely to negative in the pleading that $100 worth of labor has been done during the year, and to establish this by proof, be it ever so clear and convincing, is not sufficient to warrant a finding of a forfeiture. The pleading must also negative the second alternative, so as to admit proof showing a non performance in that particular. The allegations of the answer are directed to the first alternative only. Under them, proof would not be admissable to show that plaintiffs did not, during the years named, put upon the surface of the claim, or upon adjoining ground, machinery, buildings, or other structures which were designed to be used and could be used for the purpose of aiding in the extraction of ores from the Clementh claim. In this respect, therefore, the statements in the answer are insufficient, and the demurrer was properly sustained.
The demurrer was also properly sustained on another ground; for not only was it incumbent upon the defendants to properly plead and prove a forfeiture on the part of the plain[253]*253tiffs, but also to allege facts sufficient to show that they were themselves entitled to demand a patent from the government. They attempt to allege the facts showing their location of the Minnehaha lode, but fail in two particulars >to show a valid location. The statute (Compiled Statutes of 1857, Fifth Division, Section 1477) provides: “Any person or persons who shall hereafter discover any mining claim upon any vein or lode bearing gold, silver * * * or other valuable deposits, * * * shall, within twenty days thereafter, make and file for record in the office of the recorder of the county in which said discovery or location is made, a declaratory statement thereof, in writing, on oath, made before some person authorized by law to administer oaths, describing such claim in the manner provided by the laws of the United States.” It is nowhere alleged in the answer that the required declaration was ever made and filed with the recorder of Lewis and Clarke county or elsewhere. The allegation on this subject is that Sla and Burridge “did, on the 23d day of July, 1892, cause a record notice to be made.” This statement is at best a conclusion, and, in the connection in which it is made, can be held to mean no more than that some sort of a notice in writing was made. It does not suggest that the notice was ever verified, or put upon record in the proper county. Nor is it aided in any respect by the subsequent averment that defendants have fully complied with the laws of the United States and the state of Montana, and are entitled to a patent. This is but a conclusion, and embodies no fact to supply the omissions made in the foregoing allegations. The answer, therefore, fails to show that defendants so connected themselves with the government that they may assert title in themselves at the time plaintiffs’ patent was issued, and that their rights have been injuriously affected by an erroneous application of the law by the officers of the land department. No matter what notice should have been given by these officers, the defendants do not disclose facts sufficient to show that they were other than strangers to the title, and cannot be heard to complain.
[254]*254The defendants, in their reply brief, argue that the questions raised by the plaintiffs as to the sufficiency of the allegations contained in the affirmative answer should not be considered, because the demurrer denominates it a “defense” instead of a ‘counterclaim, ’ ’ and does not distinctly specify objections to it, as required by section 715 of the Code of Civil Procedure. This part of the answer is in form and substance an equitable counterclaim and not a defense. (Bliss on Code Pleading, Sec. 349.) It properly belongs to the class of counterclaims mentioned in section 714 of the Code of Civil Procedure, as distinguished from defenses and counterclaims mentioned in section 711, and should have been attacked accordingly. Both counsel and the trial court, however, treated the demurrer as an attack upon the pleading as a counterclaim instead of a defense. It is, therefore, of no moment in this court that the demurrer does not correctly name the pleading which it sought to attack.
Nor can counsel be sustained in the contention that the demurrer is insufficient in that it does not point out specific objections to the answer. Section 715, supra, provides that the demurrer to a counterclaim may specify the objections to it in the same way as when interposed to a complaint. Section 681 of the Code of Civil Procedure provides that, when the demurrer to a complaint is upon the ground mentioned in subdivision 6 of section 680, which enumerates the grounds of. demurrer to a complaint, the objection may be stated in the language of that subdivision.
The judgment of the district court is affirmed.
Affirmed.
Mr. Justice Word, not having been a member of the Court when this case was argued, took no part in the decision.