Hopkins v. Butte Copper Co.

• Decision Date: 23 January 1904
• Citation: 74 P. 1081,29 Mont. 390
• Parties: HOPKINS et al. v. BUTTE COPPER CO.
• Court: Montana Supreme Court

74 P. 1081

29 Mont. 390

HOPKINS et al. v. BUTTE COPPER CO.

Supreme Court of Montana

January 23, 1904

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by John Hopkins and another against the Butte Copper Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Forbis & Mattison and M. J. Cavanaugh, for appellants.

BRANTLY C.J.

On October 11, 1900, the defendant, claiming to be the owner of the Powhatan quartz lode mining claim, instituted proceedings for patent therefor in the United States Land Office at Helena. The plaintiffs, having filed in that office their adverse claim to a portion of the ground covered by the Powhatan location under a location called the "Copper Blossom," brought this action in pursuance of section 2326 of the Revised Statutes of the United States [U. S. Comp St. 1901, p. 1430] to have determined the right of possession to the portion of the ground in conflict. The original complaint, besides the necessary averments as to right of possession in plaintiffs, alleged that the adverse claim had been filed and allowed within 60 days after the first publication of the notice, and that the action had been commenced within 30 days after the stay granted thereunder. The clerk's filing mark upon the complaint indicated that it had been filed on the thirty-first day after stay granted. The defendant's answer put in issue all the allegations of the complaint, and then, after setting forth affirmatively the nature of its claim, demanded judgment that it be declared entitled to the possession of the ground in conflict. Upon these affirmative allegations there was issue by replication. The issues were made up on February 12, 1901. On November 13, 1901, the defendant moved the court to dismiss the action on the ground that it had been brought to determine an adverse claim to a patent, and that, it appearing that it had not been commenced within 30 days after the filing of the adverse claim in the land office, the court had no jurisdiction to proceed to determine it. While this motion was pending, the plaintiff filed an amended complaint. This pleading it is not necessary to notice further than to remark that it omitted the allegation that the action had been commenced within 30 days after the filing of the adverse claim. The motion, being then submitted on the original and amended complaints, was sustained, and judgment entered for the defendant. The plaintiffs have appealed. The defendant has made no appearance in this court.

It has long been the rule in this jurisdiction that, in order to state a cause of action in an adverse suit under section 2326 of the United States Revised Statutes [U. S. Comp. St. 1901 p. 1430], it must be alleged that the adverse claim has been filed within time in the proper land office, and that the action has been commenced within 30 days, allowed for that purpose. The rule was first declared by the territorial Supreme Court in Mattingly v. Lewisohn, 8 Mont. 259 19 P. 310. It doubtless grew out of the view early entertained by that court that, though the action assumed the character of ejectment or a suit to quiet title, according as the one or the other form of action was appropriate, the ultimate purpose of it was to determine which of the contestants was entitled to a patent, the final judgment in the case being determinative of this question. Wolverton v. Nichols, 5 Mont. 89, 2 P. 308; s. c. on error to the Supreme Court of the United States, 119 U.S. 485, 7 S.Ct 289, 30 L.Ed. 474; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 P. 153; Milligan v. Savery, 6 Mont. 129 9 P. 894. Whatever be its origin, it has been more than once recognized by this court since the decision in Mattingly v. Lewisohn, supra, as the correct rule. McKay v. McDougal, 19 Mont. 488, 48 P. 988; Murray v. Polglase, 23 Mont. 401, 59 P. 439. In McKay v. McDougal, after referring to the rule as stated in Mattingly v. Lewisohn, supra, it was said: "As applied to actions of the class to which Mattingly v. Lewisohn belongs, we believe that to be correct, in order that it may appear that the court had jurisdiction to proceed with the case; but such averments of fact have nothing...