Hunt v. Eureka Gulch Min. Co.

• Citation: 24 P. 550,14 Colo. 451
• Parties: HUNT et al. v. EUREKA GULCH MIN. CO.
• Decision Date: 13 June 1890
• Court: Colorado Supreme Court

24 P. 550

14 Colo. 451

HUNT et al. v. EUREKA GULCH MIN. CO.

Supreme Court of Colorado

June 13, 1890

Commissioners' decision. Appeal from district court, San Juan county.

Civil Code, § 257, provides that an action may be brought by any person in possession of real property against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse claim or estate. Rev. St U.S. § 2326, provides that, where an adverse claim to the issuance of a patent for mining lands is filed during the period of publication of notice of application for the patent, all proceedings shall be stayed until the controversy is settled by a court of competent jurisdiction.

Hudson & Slaymaker, for appellants.

Montague & Fitch and Samuel Slessenger, for appellee.

RICHMOND C.

By the record in this case it appears that the appellee, defendant below, on the 26th day of October, 1885, filed its application for a United States patent for a certain mining claim, particularly described in the complaint, called 'No Name Lode,' under the provisions of sections 2325, 2326, Rev. St. U.S. pp. 426, 427; that notice of the application, by direction of the register and receiver of the United States land-office at Durango, Colo., was published in the Animas Forks Pioneer, and that the notice first appeared in the issue of said newspaper on the 31st day of October 1885, and appeared in each and every weekly issue of said newspaper thereafter, up to and including the 2d day of January, 1886; that on the 1st day of January, 1886, appellants, plaintiffs below, filed their adverse to the application of appellee for a patent, and thereafter, on the 27th day of January, 1886, instituted this action to support such adverse filing. The cause was tried to the court, and the court found that the adverse claim was not filed within the time allowed by law for filing adverse claims, and therefore dismissed the action, at plaintiffs' cost. To reverse this action this appeal is prosecuted.

The question for our determination is, did the plaintiffs file their adverse claim within the time allowed by law? if not, can they maintain their action? In the brief and argument appellants take the position that, whether an adverse claim be filed in the land-office or not, still they are entitled to maintain their suit under section 257 of the Civil Code. The complaint in this case clearly shows the cause of action which the pleader intended to state. No one can read it and fail to conclude that the suit was brought upon an adverse filing, to contest defendant's application for patent to the premises in controversy, and that the purpose of the pleading was to put in issue and try the questions which by section 2326, Rev. St. U.S., are submitted to courts for adjudication. The language of the complaint is that they 'were the owners of and in possession of certain mining premises situate, lying, and being in Eureka mining district in the county of San Juan, Colo.; * * * that the said premises comprise all of that certain lode mining claim that is known and recorded as the 'Nameless Lode;' that the defendant claims an estate or interest in and to said premises, and all thereof, adverse to that of plaintiffs; that defendant has made application at the United States land-office at Durango, Colo., for a patent for all of said premises, claiming in said application to be the owner of said premises under the name of the 'No Name Lode;' that the application for the patent is still pending, and that the plaintiffs on the 1st day of January, 1886, to protect their title and right of possession in and to said premises, filed in the United States land-office at Durango, Colo., their protest and adverse claim against the issuing of a patent for said premises to defendant or other person; that this suit is begun in support of the said adverse claim of the plaintiffs.' The above is all of the complaint necessary for us to recite to indicate unmistakably the purpose and object of the action. To permit the plaintiff, after the trial of the cause, to assume altogether another and a different object, would be in violation of every rule of pleading. The allegations in the complaint determine the character and object of the action. Becker v. Pugh, 9 Colo. 589, 13 P. 906; Mining Co. v. Kirtley, 12 Colo. 410, 21 P. 492.

The plaintiffs having elected to proceed under the provisions of the section above referred to, the next and only remaining inquiry is, did they bring themselves within the provisions of those sections? It is admitted by the complaint and in the argument of appellants that the appellee made its application for the patent on the 26th day of October, 1885, and that, pursuant to the order of the register and receiver of the United States land-office, notice of this application was published on the 31st day of October, 1885, and that the appellants did not locate the claim and file the adverse until the 1st day of January, 1886. Section 2325 provides that, upon filing an application for a patent for land, the register of the land-office 'shall publish a notice that such application has been made, for the period of 60 days, in a newspaper to be by him designated as published nearest to such claim, and he shall also post such notice in his office for the same period * * * At the expiration of the sixty days of publication, the claimant shall file his affidavit * * * in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land-office, at the expiration of the sixty days of publication it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of $5 per acre, and that no adverse claim exists, and thereafter no objection from third parties to the issuance of the patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.'

In Wight v. Dubois, 21 F. 693, Judge BREWER, adopting the construction of these provisions announced by Judge HALLETT in the same case, sums up in brief his conclusions, (page 696,) as follows: '(1) The government, as a...