Doe v. Waterloo Mining Co.

• Decision Date: 08 August 1890
• Citation: 43 F. 219
• Court: U.S. District Court — Southern District of California
• Parties: DOE v. WATERLOO MIN. CO., (two cases.)

43 F. 219

DOE v. WATERLOO MIN. CO., (two cases.)

United States Circuit Court, S.D. California.

August 8, 1890

C. J Perkins and Mesick, Maxwell & Phelan, for complainant.

A. H Ricketts, for defendant.

ROSS J.

These suits were commenced in one of the superior courts of the state, pursuant to the provisions of sections 2325, 2326 Rev. St. U.S. It is by those sections in substance enacted that a person who has located and set up a claim for mineral land, and who desires to get a patent for it, shall file in the proper land-office an application for such patent showing a compliance with the laws on that subject, and a plat and field-notes of the claim, and shall post a copy of such plat, with a notice of the application for the patent, in a conspicuous place on the land for 60 days. If no adverse claim for the same is filed with the register and receiver within 60 days from this publication, and if the papers are otherwise in proper form, the patent shall issue; but where an adverse claim is filed during the period of publication, it shall be upon oath of the person making the same, showing the nature, boundaries, and extent of his claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be thereupon stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived; and 'it shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. ' Both suits were removed from the state court to this court on motion of the defendant, and here defendant filed, to the original complaint, in case numbered 160, a plea in abatement, in which it was alleged that the suit had not been commenced at the date indicated by the record, nor within 30 days after the filing by the plaintiff of his protest in the land-office. To this plea a replication was filed by the plaintiff, and the issue of fact thus raised was, against the objection and exception of the defendant, referred by the court to the master in chancery to take testimony and report the same, together with his conclusions, to the court, which was done, and the plea found and adjudged to be false, and therefore overruled. Subsequent to the filing of the plea the defendant interposed a demurrer to the complaint, which is now here for determination.

In case numbered 161 the defendant filed in this court a demurrer to the original complaint, and a motion to strike out certain portions of it, which motion, after argument, the court denied. The demurrer was confessed by the plaintiff for the reason, as stated by his counsel, that an exhibit attached to the complaint when filed had in some way disappeared from the record, and he was given leave to amend. The ground of the objection made by the defendant to the reference to the master in case numbered 160 and in support of the motion to strike out in case numbered 161 was that the suits were actions at law, and, therefore, that in the one case the reference was improper, and in the other, that the matter sought to be stricken out had no place in a complaint in an action at law. On the other hand, the plaintiff contended that the suits were on the equity side of the court, and, that being the ruling of the court, the plaintiff in amending his complaint in case numbered 161 gave it the formal fashion of a bill in equity. To this bill the defendant filed the demurrer now here for decision in case numbered 161.

Both demurrers raise the same point, which is, in substance, that the suits should be dismissed for the reason, as it is contended, that the bill of complaint in each case shows upon its face that the complainant has a full, adequate, and complete remedy at law by the ordinary action of ejectment or some other legal remedy, not, however, specifically pointed out by counsel. In support of his position counsel for defendant has filed three elaborate briefs, in which are cited a vast number of authorities, very few of which, in my opinion, are at all applicable to the present cases. It seems to me to be entirely clear that the proceeding directed and authorized by section 2326 of the Revised Statutes has no relation whatever to the action of ejectment, or to any other common-law action. Those actions are for the recovery of some specified property or thing. 'Actions,' says Chitty, 'are, from their subject-matter, distinguished into real, personal, and mixed. Real actions are for the specific recovery of real property only, and in which the plaintiff, then called the demandant, claims title to lands, tenements, or hereditaments. * * * Personal actions are for the recovery of a debt or damages for breach of a contract, or a specific personal chattel, or a satisfaction in damages for some injury to the person, personal or real property. In mixed actions, which partake of the nature of the other two, the plaintiff proceeds for the specific recovery of some real property, and also for damages for an injury thereto, as in the instances of ejectment, or of waste, or quare impedit.' 1 Chit.Pl. 97. In such actions the judgment is and always was, if in favor of the plaintiff, that he 'have and recover;' or, if against him, 'that he take nothing;' and for defendant, that he 'have and recover his costs.' And execution went for the satisfaction of such judgment. But, manifestly, in the proceeding contemplated by the statute in question no such judgment can be rendered. The proceeding there provided for has not for its object the recovery of the possession of the mining ground, nor is possession...