Hoffman v. Beecher
| Citation | 31 P. 92,12 Mont. 489 |
| Parties | HOFFMAN et al. v. BEECHER. |
| Decision Date | 15 September 1892 |
| Court | United States State Supreme Court of Montana |
Appeal from district court, Yellowstone county;
GEORGE R. MILBURN, Judge.
Action by Charles W. Hoffman and others against Samuel A. Beecher to determine the rights of the parties in a mining claim. Defendant had judgment, and plaintiffs appeal. Reversed.
Luce & Luce, for appellants.
Savage & Day, for respondent.
This action was commenced by adverse claimants to determine the right of possession of a lode mining claim. The amended complaint alleges, among other things, that the plaintiffs on the 16th day of February, 1887, and for a long time prior thereto, were the owners and in the possession of the Lake Superior lode mining claim; that the same was discovered June 23, 1882, by the grantor and predecessor in interest of the plaintiffs; that the statement and notice of the discovery and location thereof were recorded; that the defendant filed in the month of February, 1887, in the United States land office at Bozeman, his application for a patent for the Silver Queen lode mining claim, which was within the boundaries of the said Lake Superior code mining claim; and that a notice of this application was published in a newspaper which had been designated by the proper officer. It is further alleged "that, within the statutory period of the publication of said notice in said newspaper, to wit, on the 16th day of April, 1887, the plaintiffs filed in said land office, with the register and receiver thereof, their adverse claim under oath, showing the nature, boundaries, and extent of their adverse claim; whereupon all proceedings in said land officer, to the extent and as required by law, were stayed on said application for patent by said register and receiver." The answer denies the averments of the complaint concerning the Lake Superior lode mining claim, and sets forth the title of the defendant to the Silver Queen lode mining claim. The following paragraphs relate to the adverse claim: "Denies that within the statutory period of the publication of the defendant's said notice of application for a United States patent for said Silver Queen quartz lode mining claim, to wit, on the 16th day of April 1887, or at all, the plaintiffs, or any of them, filed in said Bozeman land office, with the register and receiver thereof, or with either of them, their or either of their legal notice, or their or either of their adverse claim under oath showing the nature or boundaries or extent of their or either of their adverse claim: denies that the plaintiffs ever filed in said land office any legal notice of their or either of their alleged adverse claim." The action was tried by the court without a jury, and after the plaintiffs "rested their case" the following proceedings took place: "Thereupon the court found for the defendant as follows: (1) On the ground that the facts do not sufficiently appear to the court, either from the pleadings or the evidence, to give this court jurisdiction of the case. (2_ And, if the court had jurisdiction of the case, the plaintiffs have not made out a kprima faciek case under the evidence; one of the fatal defects in the case being the variance in the description of the property in the adverse claim, and the description in the amended complaint, this being only one of the reasons upon which the court bases its ruling. Whereupon the defendant's counsel made the following statement: I would like to have the court find as a fact that the amended complaint is not in support of the adverse claim as filed. By the Court; I have said for that and other reasons; I have left room enough. Whereupon at that time after the said statement of the court and the finding for the defendant upon said motion for nonsuit as aforesaid, the plaintiffs asked leave of the court to amend the amended complaint so as to make the allegations of the said complaint conform to the description and other matters contained in the adverse claim filed in the land office, and introduced in evidence in this case. Whereupon the court overruled said motion for the reason following, to wit: I think, in respect to that, that the court has all along lacked jurisdiction in this case because of the fact, among other reasons, that there is no allegation in the amended complaint that the action was brought in respect to the property mentioned in a certain adverse claim; and, the court not having had jurisdiction in this case, the court could only hold in fact that no case had been commenced at all upon this adverse claim, and the time within which such action could be brought has long since expired. I will deny the request of plaintiffs. *** Whereupon the court added to the reason already given for refusing too allow plaintiffs to amend their amended complaint the following: That the court believes there should be an end to litigation, and that this cause, in the opinion of the court, has lasted long enough on such facts as have been presented to the court." Judgment was entered accordingly, and we have quoted at length all the reasons which are given by the court for this decision upon its own motion.
The statutes of the United States regulating the procedure in these matters are as follows: Rev. St. U.S. § 2326.
Did the plaintiffs file an adverse claim in the United
States land office in compliance with the law? This is the first question which arises in the investigation of the foregoing rulings of the court. It is shown by the transcript that the plaintiffs filed the following papers with their adverse claim: The affidavits of seven persons; copies of the locations of the Lake Superior lode mining claim, the Young America lode mining claim, and the Homestake lode mining claim; two plats of the Lake Superior lode mining claim; and an abstract of title too the Lake Superior lode mining claim.
The court below seems to have been of the opinion that the plaintiffs followed the law in this respect, but the respondent asserts in his brief that the boundaries and extent of the adverse claim are not specified. This document states that the plaintiffs were "the lawful owners and entitled to the possession of one thousand one hundred and forty (1,140) feet of the said Silver Queen lode or mine, and all the surface ground thereof described in said application for patent, as shown by the diagram of said mining claim posted on said claim, and the copy thereof filed in the said land office with said application for patent." This allegation regarding the boundaries and extent of the adverse claim is supported by the affidavits and plats showing that the Silver Queen lode mining claim is contained within the Lake Superior lode mining claim. The general land office has issued rules for the guidance of the registers and receivers of the land districts. The respondent insists that the plaintiffs did not observe the requirement that the "plat must be made from an actual survey by a United States deputy surveyor, who will officially certify thereon to its correctness; and in addition there must be attached to such plat of survey a certificate or sworn statement by the surveyor as to the approximate value of the labor performed or improvements made upon the claim by the adverse party or his predecessors in interest, and the plat must indicate the position of any shafts, tunnels, or other improvements, if any such exist, upon the claim of the party opposing the application, and by which party said improvements were made." rule No.86.
The supreme court of Nevada in Rose v. Mining Co., 17 Nev. 55, decided against the position of respondent upon a ground which we are inclined to favor, and says: ...
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