Axiom Min. Co. v. Little

• Decision Date: 29 December 1894
• Citation: 61 N.W. 441,6 S.D. 438
• Parties: AXIOM MINING CO., Plaintiff and respondent, v. JOHN LITTLE, Defendant and appellant.
• Court: South Dakota Supreme Court

6 S.D. 438, 61 N.W. 441 (1894)

AXIOM MINING CO.,

Plaintiff and respondent,

v.JOHN LITTLE,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, S.D.

Hon. Charles M. Thomas, Judge

Reversed

Joseph B. Moore

Attorneys for appellant.

Frawley & Laffey, Deadwood, S.D.

Attorneys for respondents.

Opinion filed Dec. 29, 1894

KELLAM, J.

The Axiom Mining Company, a corporation, brought this action against appellant, Little, as defendant, for the purpose of quieting its title to two certain mineral locations as against the claim of the said Little. The complaint contained two counts or causes of action, alleging severally as to each claim or location that the plaintiff was the owner thereof, and that the defendant claimed without right or justification an estate or interest in each, and that by reason of such unfounded claim the plaintiff was greatly injured and embarrassed in the use and enjoyment of his property, and that by reason of such false and unfounded claim of defendant its property was greatly depreciated in value. The complaint concluded with the following prayer for judgment:

“First, that the defendant may be required to set forth the nature of his respective claims, and that all adverse claims be determined by the decree of this court; second, that by such decree it be decreed and adjudged that the defendant has no interest or claim or estate or right to the possession of the aforesaid described premises, or any part or portion thereof, and that the title of the plaintiff to said aforesaid described mining claims and to said premises be adjudged, as against the defendant, to be valid and good, and that the plaintiff is, as against this defendant, entitled to the possession of each of the aforesaid mining claims, and every part and portion thereof; third, for such other and further relief as may be just and equitable and for costs.”

To this complaint the defendant answered, denying all the allegations of the complaint, except those alleging that defendant claimed an estate or interest in the lands described; and then set out affirmatively the abandonment of the said claims by plaintiff, and that defendant became and was the owner of the same by virtue of discovery and location after such abandonment by plaintiff, setting out in detail the several steps taken and the several acts done upon which he relied to establish such title in him. The acts so pleaded apparently comprise all that would by law be required of him to establish his claim upon unoccupied or abandoned land. The answer prayed the defendant might be adjudged to be the owner of and entitled to the possession and enjoyment of the premises, and that plaintiff be adjudged to have no right thereto or interest therein, and for such other relief as might be just and equitable. About eight months after the commencement of this action, and while it was thus pending upon the complaint and answer, the plaintiff upon affidavit and notice to defendant, applied to the court in which it was thus pending for an order allowing the same to be dismissed and discontinued. This motion was, upon counter affidavits, opposed by defendant. The motion was granted, and, from the order so granting this appeal is taken.

In opposition to plaintiff’s motion to be allowed to dismiss, defendant introduced affidavits tending to show that after plaintiff filed its application in the land office at Rapid City, S. D., for a patent to the premises in controversy, defendant filed a protest against the issuance of the same; that the rules of practice of the United States land office required the certificate of the clerk of court that no suit was pending involving the title to any lands sought to be entered for patent; that because this action was pending, in which the plaintiff, in its complaint, asserted its claim to the premises in controversy, and this defendant, by his answer, asserted his his claim thereto, each so submitting the issue as to whose right was superior to the court for adjudication, he did not, on his part, commence another action, which would necessarily have presented the same facts in his behalf as are stated in his answer, and the same facts on behalf of plaintiff as were stated in his complaint; that the time within which he could commence such action, and so defeat or suspend the issuance of a patent to said plaintiff for the premises in controversy had elapsed. It thus appears that so long as plaintiff’s action was pending it could not be certified to the land office that no action was pending involving the title to these premises. If, however, plaintiff is allowed to discontinue his action, then no such action will be pending, and such certificate could properly be made, and such bar to the issuance of a patent to it be removed, to the prejudice of defendant’s alleged rights. By both parties the case is argued as though depending upon whether defend...