This is an action to recover a parcel of mining ground, situated in Lawrence county, in the territory of Dakota, and claimed by the plaintiffs under a patent of the United States, bearing date March 22, 1880, and issued to them upon an entry made November 30, 1877. The complaint alleges that on the eleventh of December, 1878, the plaintiffs were the owners in fee and possessed of the demanded premises, deriving their title under the said patent of the United States, founded upon the entry mentioned; that afterwards, on the twelfth of said December, while they were thus seized and possessed of the premises, the defendants, without right or title, entered upon them, ousted the plaintiffs therefrom, and have ever since unlawfully withheld them, to the damage of the plaintiffs of $500. It also alleges that the value of the rents and profits of the premises from the entry of the defendants has been $10 a month; and it prays judgment for the possession of the premises, for the damages sustained, and for the rents and profits lost.

The answer of the defendants denies generally the several allegations of the complaint, except as stated therein, and then sets up specially, by way of counter-claim, various matters which they contend constitute in equity a good defense to the action, and entitle them to a portion, at least, of the demanded premises, or to compensation for their improvements thereon. The matters set forth as grounds for equitable relief are alleged upon information and belief, and are substantially these: That on the twenty-eighth of February, 1877, the land in controversy, with other land adjacent thereto, was appropriated and occupied as a town-site and for town-site purposes, and as such was laid out into lots, blocks, streets, and alleys, and designated as Central City, having at that time about 100 inhabitants; that this number increased until, on March 22, 1880, the date of the plaintiffs' patent, the place became an important one, containing about 2,000 inhabitants; that on the said twenty-eighth of February, 1877, the grantor of the defendants was in the peaceful occupation and possession of the land in controversy as a lot in said Central City, and that on the twelfth of December, 1878, he sold them the lot, with the improvements thereon, for a valuable consideration; that after the said twenty-eighth of February, 1877, the plaintiffs, without legal right, caused certain ground within the town-site, including that in controversy, to be surveyed for a placer mining claim, and an application for a patent based upon that survey to be filed in the United States land-office at Deadwood, in the county of Lawrence; that within the time required by law the inhabitants of the town, including the grantor of the defendants, filed a protest in the land-office against the issuing of the patent, basing the protest upon the ground, among other things, that the land was subject to the prior rights of the town-site occupants, and was not mineral; but that, notwithstanding the protest, the local land-officers, on the thirtieth of November, 1877, represcribed from the plaintiffs the price of the land as a placer claim, and the fees prescribed by law, and allowed their entry of the same; that, subsequently, on the twenty-second of April, 1878, the commissioner of the general land-office reviewed the proceedings, and directed that a patent issue to the plaintiffs for the mining claim, but with a reservation from the grant of all town property, rights upon the surface, and all lots, blocks, streets, and alleys, and all houses, buildings, and improvements thereon not belonging to the plaintiffs, and all rights necessary to the occupation and enjoyment of the same; that, subsequently, on the seventh of November, 1878, the commissioner suspended the entry, and ordered that a hearing be had before the officers of the local land-office, to determine the date when the land was first occupied as a townsite, the nature and extent of such occupancy, and the improvements thereon, and whether the land was mineral or non-mineral in its character; that such hearing was commenced on the twenty-sixth of November, 1878; that both parties submitted their testimony to the local officers. who. on the twentieth of January, 1879, decided in substance that the land was valuable for mineral, but had been appropriated for town-site purposes prior to any appropriation by the plaintiffs, and that the land should be awarded to the occupants of the town-site, including the defendants, subject to the right of the plaintiffs to mine and extract the gold therefrom, if in so doing they did not materially interfere with the possession, buildings, and improvements of the town occupants, including the defendants; that, the occupants and plaintiffs were satisfied with this decision, and no appeal was taken therefrom; but, on the contrary, an appeal was waived; that, notwithstanding this, on the sixth of October, 1879, the commissioner reviewed the decision of the local land-officers, and held that the town-site claimants and occupants, including the defendants, had no right whatever to the land, upon the sole ground that it was mineral, and therefore not subject to appropriation, except under the mineral law of 1872; that he accordingly dismissed the protest and directed that the patent be issued to the plaintiffs, without any exception or reservation therein to protect the possession and improvements of the defendants; and that the patent was accordingly issued to the plaintiffs; whereas, the defendants insist that it should have contained a reservation excepting therefrom all town property rights, and all houses, buildings, structures, lots, blocks, streets, and alleys, and other improvements on said land not belonging to the plaintiffs, and all rights necessary or proper to the occupation and possession and enjoyment of the same; that its issue without such reservation was contrary to law; that the plaintiffs, therefore, hold the land covered by it in trust for the defendants; and that it should be conveyed to them, they offering to pay their just proportion of the expenses of procuring the patent.

The matters set forth by the defendants as grounds for compensation for improvements on the premises are these: that they were made by them or by their grantor, he at the time occupying the premises in good faith against all persons except the United States, and they having purchased the premises of him for a valuable consideration, and having since then occupied them, claiming title thereto in like good faith adversely to the plaintiffs. The answer alleges that the improvements consist of two buildings, each worth $750, and that the value of the land does not exceed one hundred dollars.

To each of the special answers the plaintiffs demurred on the ground that it did not state facts sufficient to constitute a defense to the action, nor a counter-claim in defendants' favor against them. The demurrers were sustained by the court, and the defendants declining to plead further, and electing to stand upon their special answers, the plaintiffs had judgment for the possession of the premises. On appeal to the supreme court of the territory the judgment was affirmed. To review that judgment the case is brought here on appeal.

G. C. Moody, for appellants.

J. W. Smith, for appellees.

FIELD, J.