#### _ Davis, appellant, *v.*Clark, respondent.

Ejectment — *seisin*— possession. Inactions of ejectmert the plaintiff must prove that he is seised of the premises, or some estate therein. In the absence of adverse possession, the right of possession follows the seisin in law.

Statutory *construction*— limitations — *quwrtz lodes.*The amendments to, the statute of limitations, approved January 11,1872, changed the order and character of the evidence in actions for the recovery of claims upon quartz lodes ; and the plaintiff must show .that he was in the actual possession of the same within one year next before the commencement of the action.

*Appeal from Second District, Deer Lodge County. .*

This was a rehearing of the case reported *ante,*310.

J. 0. BobiNsoN and ChuMAsero & ChadwioK, for appellant.

The appellant made out a *prima facie*case. Having proved the location of the mining ground and the conveyance to him, the law presumes a continuing title until the contrary is proved. Tyler on Ejectment, 540, 541, 761, 765 ; *Payne*v. *Treadwell,*16 Cal. 242; *Haight*v. *Green,*19 id. 117; *Lewis*v. *Goyette,*8 Stewart & P. 184; *Applegate*v. *Doe,*2 Ind. 169; *Doe*v. *West,*1 Blaekf. 133; *Shuffleton*v. *Nelson,*2 Sawyer, 542; 3 Washb. Heal Prop. 130; *Currier*v. *Gale,*9 Allen, 525; *Fosgate*v. *Her-kimer Co.,*9 Barb. 287; *Brown*v. *King,*5 Mete. 173.

*395To defeat appellant’s title, respondent must prove affirmatively tbat be bad been in tbe adverse possession of tbe premises for one year. *Doswell*v. *De La La/nza,*20 How. (IJ. S.) 32.

Shaep *&*NaptoN, for respondent.

BlaKe, J.

Tbis case is before ns, upon tbe motion of tbe

appellant, for a rebearing. In considering tbe questions wbicb bave been submitted, we must be governed by tbe rule established in *Columbia M. Co.*v. *Holter,*1 Mon. 432. Tbe decisions of tbis court will not be reversed unless they are in conflict with a statute or controlling decision, to wbicb tbe attention of tbe court bas not been directed, or it appears tbat some question, wbicb is decisive of tbe case, bas been submitted by counsel and been overlooked by tbe court. At tbis time we can examine only one proposition tbat bas been discussed by tbe appellant.

It is maintained tbat be made out a *prima facie*case by proving tbe location and pre-emption of tbe mining ground in dispute, and tbe conveyance of tbe same to him by its locators and pre-emptors; tbat tbe law presumes a continuing title and possession, and tbat it was necessary for the respondent to show tbat be bad been in tbe adverse possession of tbe property for tbe period of one year. In actions of ejectment tbe courts bold tbat it is sufficient for tbe plaintiff to aver tbat be is seised of tbe premises or some estate therein, and tbe right of possession follows as a legal conclusion from tbe seisin. “ If seisin is once proved, it will be presumed to continue until tbe contrary is shown.” *Currier*v. *Gale,*9 Allen, 525; *Brown*v. *King,*5 Metc. 173; *Payne*v. *Treadwell,*16 Cal. 244; 3 Washb. Real Prop. 130, and cases there cited. *“*In tbe absence of adverse possession, seisin follows tbe legal title, and seisin in law carries with it tbe legal possession.” *Farwell*v. *Rogers,*99 Mass. 33, and cases there cited. It must be conceded tbat these authorities would be decisive in tbis case, if tbe statutes, wbicb are cited and commented upon in tbe opinion delivered at tbe first bearing of tbis appeal, bad not been enacted.

Did tbis court state correctly tbe effect of tbe amendments to tbe statute of limitations, approved January 11, 1872 ? Cod. Sts. *396591. The language of tbe law is plain and unambiguous, and there is no room for construction. *United States*v. *Fisher,*2 Cranch, 399; *Smith*v. *Williams, ante,*195. We can apply Lord CoKe’s rule and consider the previous state of the law, and the mischief which the statute was passed to obviate. Sedgw. on Stat. Law, 235. Before the adoption of these amendments by the legislative assembly, the title to many of the quartz lodes within the Territory was based upon the notice of the pre-emption or discovery, which had been filed in the office of the county recorder. No work was required to be performed to hold the property, and the means of defining the extent of the mining claims were imperfect and uncertain. The doctrine of the authorities referred to was recognized by our courts, and the law presumed that the person having the record title had the possession of the lode. These amendments were passed to obviate the mischief resulting from the enforcement of this rule, and the nature of the testimony required in actions for the recovery of property of this character was changed. The plaintiff in such a case is compelled to prove that he or his assigns, or predecessors in interest, was in the actual seisin or possession of the lode claim within one year n ext before the commencement of the action, and the legal presumption of such possession has been rendered insufficient. Courts have no power to modify this statute by the exercise of a sound discretion. The appellant failed to comply with this act in the introduction of his evidence, and the motion for a rehearing must be denied.

*Behea/ring denned.*