Cronin v. Bear Creek Gold Min. Co.
| Decision Date | 10 February 1893 |
| Citation | 32 P. 204,3 Idaho 614 |
| Parties | CRONIN v. BEAR CREEK GOLD MINING COMPANY |
| Court | Idaho Supreme Court |
PLEADINGS-MINING RIGHT-ADVERSE CLAIM.-A complaint in an action under the Revised Statutes of the United States, section 2326, to contest an application for a patent for mining land, must show that the plaintiff has filed his adverse claim within the prescribed period of section 2325, and brought his action within the time thereafter allowed by section 2326.
SAME-DESCRIPTION OF PROPERTY.-It must also contain such a description of the property as will enable the court to determine to what extent, if at all, the claim of plaintiff is covered by the claim of defendant upon which patent is applied for.
(Syllabus by the court.)
APPEAL from District Court, Elmore County.
Judgment affirmed. Costs awarded to defendant.
Wyman & Wyman, for Appellants.
We believe that there can be no doubt that a defect of an allegation in a complaint will be cured by its statement in the answer. Schenck v. Hartford Fire Ins. Co., 71 Cal. 28, 11 P. 807; Hegard v. California Fire Ins. Co. (Cal.), 11 P. 594; Allen v. Chouteau, 102 Mo 309, 14 S.W. 869; Henry v. Sneed, 99 Mo. 407, 17 Am St. Rep. 580, 13 S.W. 665.) The bringing of a suit on an adverse claim is but the continuation of a proceeding already initiated in the land office. (Wolverton v. Nichols, 119 U.S. 489, 7 S.Ct. 289.) If the description is faulty or is lacking, there is still some description; and if it is defective it should be left to the jury under the instruction of the court as to what makes a sufficient description and reference. (Flavin v. Mattingly, 8 Mont. 242, 19 P. 384; Garfield Min. Co. v. Hammer, 6 Mont. 53, 8 P. 153; Russell v. Chumasero, 4 Mont. 309, 1 P. 713; O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302.) The decisions in actions of this nature all show that in adverse suits the court must proceed to hear the defendant's proofs and render judgment determining which, if either, of the parties are entitled to patent, or if neither is, so determine. (Manning v. Strehlow, 11 Colo. 451, 18 P. 625; Anthony v. Jillson, 83 Cal. 296, 23 P. 419; McGinnis v. Egbert, 18 Colo. 41, 5 P. 652; Rosenthall et al. v. Ives, 2 Idaho, 265, 12 P. 904; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110.)
R. Z. Johnson & Sons, for Respondent.
"In an action under section 2326 of the United States Revised Statutes to determine the right to a patent to mineral lands, each party is an actor, and each must establish his claim against the government as well as his adversary." (Anthony v. Jillson, 83 Cal. 296, 299, 23 P. 420; Burke v. Bunker Hill etc. Min. Co., 46 F. 646, 647.) Pleading--"Each party in such an action must allege in his pleading, all the facts that are essential to the validity of his claim; as, for example, the citizenship of the locators, the steps necessary to constitute and maintain the locations, etc." (Anthony v. Jillson, 83 Cal. 296, 300, 23 P. 420.) "A complaint in an action under the Revised Statutes of the United States, section 2326, to contest an application for a patent for mining land, which fails to show that plaintiff has filed an adverse claim within the period prescribed by section 2325, and brought the action within the time thereafter allowed by section 2326, is defective." (Mattingly v. Lewisohn, 8 Mont. 259, 19 P. 310.) The plaintiff must stand or fall by the rights he has asserted in his adverse claim. (Marshall etc. Co. v. Kirtley, 12 Colo. 410, 21 P. 494.) "The sole object of the proceedings in court is the determination of the contest that arose in the land office, the point of which is, which of the applicants, if either, is entitled to receive the patent from the government." (Doe v. Waterloo Min. Co., 43 F. 221; Wolverton v. Nichols, 119 U.S. 488, 489, 7 S.Ct. 289, Form--Moor Mng. Rights, 344.) (Faxon v. Barnard, 2 McCreary, 44, 4 F. 704, 9 Morr. Min. Rep. 517, 518; cited Wade's American Mining Law, p. 52, affirmed in Dillon v. Bayliss, 11 Mont. 171, 27 P. 725.
This is an action to quiet title, or, more properly, to determine an adverse claim to mining ground. It appears from the notice offered in evidence that the location of what is alleged to be the claim in controversy was made September 13, 1889, named in the notice of location the "Reeser mine." That said location was made in the names of Pasco Veal, Jake Reeser, James Fleming and three others. What is termed an "amended location" of the same claim was made January 29, 1891, by Michael Cronin and Thomas Finnegan and Jacob Reeser. That these plaintiffs now hold and own all rights that may have been acquired by these locators by virtue of said location. The same ground substantially is claimed by the defendant, by virtue of a location made on or about the twentieth day of February, 1877. The defendant claims to be in possession, and the owner thereof, as against all persons except the United States. In November, 1890, the defendant made an application for a patent in the United States land office at Hailey, Idaho, that being the district in which the said claim is situated. Notice thereof was duly published for a period of sixty days, as required by the United States statutes. That within said sixty days the plaintiffs filed in said land office an adverse claim to the defendant's application for patent, and, within thirty days thereafter, commenced this suit, to determine the respective rights of the parties to such mining claim. The complaint is substantially one to quiet title, and simply alleges ownership and possession of the claim, describing it; that defendant claims an interest therein, adverse to plaintiffs; that such claim is without right; and that defendant had no right or title thereto--and prays that plaintiffs may be adjudged to be the owners thereof, etc. The defendant, in its answer, denies plaintiff's title, and asserts title and possession, and right to possession by means of a prior location; and, for second defense, sets up the statute of limitations. Plaintiffs introduced in evidence their notice of location, which was rejected by the court, and an exception taken. They then offered in evidence the amended notice of location, which was also rejected, and an exception taken. No further evidence on the part of the plaintiffs being offered, the defendant moved for a nonsuit on the ground of the failure of plaintiffs to prove a valid location. This motion was allowed, and an exception taken. Motion for a new trial was made and overruled, and an appeal taken to this court.
MORGAN, J. (After Stating the Facts).
An objection is made to the form of the complaint by the defendant for the reason that it contains no allegation that would indicate that the suit was brought to determine an adverse claim. There is no allegation that the claim was located by the plaintiffs or their grantors; nor is there any allegation that the defendant had made application for patent, nor that the plaintiffs had filed an adverse claim in the land office to contest the right of the defendant to such patent; nor is there any sufficient allegation defining just what land is claimed by the plaintiffs, nor how much of said land is claimed by defendant. The case of Mattingly v Lewisohn, 8 Mont. 259, 19 P. 310, was an action of a similar character, in which the court say: ...
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