Iba v. Central Association of Wyoming

• Decision Date: 29 May 1895
• Citation: 5 Wyo. 355,40 P. 527
• Parties: IBA v. CENTRAL ASSOCIATION OF WYOMING
• Court: Wyoming Supreme Court

40 P. 527

5 Wyo. 355

IBA v. CENTRAL ASSOCIATION OF WYOMING

Supreme Court of Wyoming

May 29, 1895

Rehearing Denied October 25, 1895, Reported at: 5 Wyo. 355 at 367.

Amended petition filed in District Court November 30, 1892.

ERROR to District Court for Laramie County. HON. RICHARD H. SCOTT Judge.

Action for recovery of possession of certain lands, located as an oil placer claim, in support of an adverse claim filed in the United States Land Office at Douglas, Wyoming, in opposition to the application by defendant for a patent. Judgment was entered for defendant upon the pleadings. Plaintiff prosecuted error. The material facts are stated in the opinions.

Reversed.

E. W Mann, for plaintiff in error.

It is improper to render a judgment upon the pleadings in an action involving title and right to possession of real estate. (Friend v. Oggshaw, 3 Wyo. 60; R. S., sec. 2517, 2567, 2987, 2988.) Judgment could be rendered upon the pleadings only by entirely disregarding the amended petition. The second defense did not contain new matter. All the facts therein alleged could have been proven under the denials in the first defense. (Chester v. Field, 87 Cal. 422.) The matters stated in petition and answer could not both be true. The judgment upon the pleadings was erroneous. (Watkins v. R. R. Co., 4 L. R. A., 239; Rice v. Bush, 16 Colo. 484; Widmer v. Martin, 87 Cal. 88; Martin v. Porter, 67 id., 332; Horsky v. Moran, 13 Mont. 250.) Findings of fact cannot be made in a case where judgment is rendered on the pleadings. (Miles v. McCallum, 1 Ariz., 591.) In an action to determine the right of adverse claimants, pending application for a mineral patent, neither party is entitled to judgment unless his title be established. (Becker v. Pugh, 17 Colo. 243.) A judgment upon the pleadings is therefore not contemplated. (Gwillen v. Donnellan, 115 U.S. 45; Wolverton v. Nichols, 119 id., 485.)

Baird & Churchill, for defendant in error.

Upon failure of plaintiff to reply, the court properly rendered judgment upon the pleadings. (R. S., sec. 2468; Walker v. Lamb, 66 Ia. 752; Kavalier v. Machula, 77 id., 121; Ins. Co. v. Kelly, 24 O. St., 345; Corey v. Campbell, 25 O. St., 134; Fewster v. Goddard, 25 id., 276; Benicia, etc., v. Creighton, 21 Or. 495; Brown v. Reddy, 20 S.W. 1036.) In this kind of action the defendant must prove his case as though he were a plaintiff. (Jackson v. Roby, 109 U.S. 44.) He must therefore allege his title affirmatively. (Rosenthal v. Ives, 2 Idaho 244.) There must be specific findings. (Bryan v. McCaig, 10 Colo. 310; Manning v. Strehlow, 11 id., 45; McGinnis v. Egbert, 8 id., 55.) Cross petition must therefore be replied to. (Newman v. Newton, 14 F. 634; Quimby v. Boyd, 8 Colo., 194.) To permit a default for reply to be opened is within the sound discretion of the court. (McMillan v. Baxley, 112 N.C. 578; Williams v. King, 20 S.W. 229; Bank v. Blake, 66 Me. 285; Mayberry v. Brackett, 72 id., 102; Carson v. Neathany, 9 Colo., 212; Powell v. R. R. Co., 14 Or. 22; Mora v. Leroy, 58 Cal. 8; Miller v. Heath, 7 Cow., 101; Pattin v. Harris, 10 Wend., 623; Perkins v. Burbank, 2 Mass. 81; Lowry v. Inman, 37 How. Pr., 286; Bonnifield v. Price, 1 Wyo. 172.) The act of congress does not create a new class of cases. Mining Corp. v. Min. Co., 9 Nev., 240; Mattingly v. Lewisohn, 13 Mont. 508.

GROESBECK, CHIEF JUSTICE. CONAWAY and POTTER, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

This action was brought in the district court for Natrona county, and was removed upon change of venue to the district court for Laramie county. The amended petition of the plaintiff below, who is plaintiff in error here, alleges the citizenship of plaintiff; that defendant is a domestic corporation; that the plaintiff, except against the paramount title of the United States, is the legal owner of the southwest quarter of section 13 of township 40 north of range 79 west, in Natrona county in the State of Wyoming, and under and by virtue of a compliance on his part with the laws of the United States, the State of Wyoming and the rules and regulations of the Casper Mountain Mining District, within the limits of which the premises are located, in relation to mineral lands of the United States, the plaintiff is entitled to the possession thereof; and that he was such owner on the first day of February, 1892, and had been for a long time prior thereto, and has ever since been entitled to the free and full possession thereof; that on or about the date last aforesaid, the defendant by its agents and employes entered upon and took possession of said premises, wrongfully and without the consent of plaintiff, and wrongfully and unlawfully interferes with the possession of the plaintiff, and prevents his free and full possession thereof, and wrongfully withheld and still withholds the possession thereof from the plaintiff to his damage in the sum of one thousand dollars; that on or about the 1st day of February, 1892, the defendant herein filed his application for a patent for said above described premises, calling the same the Jackass Oil Placer Mining Claim, in the United States Land Office at Douglas, Wyoming; that afterwards, within the period of publication as required by law, the plaintiff filed in said land office his protest and adverse claim against the issuing of a patent to said premises to the defendant, and brings the action to support said adverse claim; that plaintiff has necessarily disbursed in support of his adverse claim certain specific sums for the expense of preparing it. He therefore prays judgment against the defendant for the recovery of the full and free possession of said premises, for the sum of $ 1,000.00 damages and for the sum of $ 87.00 expended in support of said adverse claim, and for costs of suit.

The answer of the defendant admits its corporate existence, denies the allegation of citizenship for lack of sufficient knowledge to form a belief as to the truth or falsity of such allegation, and specifically denies each of the remaining allegations of the petition, admitting, however, the filing of the application for a patent for the oil placer mining claim, and the filing of the protest in the land office against the issuance of a patent to defendant, and denying for lack of sufficient knowledge thereof the alleged disbursements of plaintiff in the matter of making his protest and adverse claim. For a second defense and cross petition, defendant alleges its title, except as to the paramount right of the government to the premises by virtue of its compliance with the acts of congress and State and local regulations, and its ownership and possession of the lands, and prays judgment against the plaintiff that its title to said realty be freed and cleared of any and all claims of the plaintiff, and for costs. As required by our statute, both of these pleadings are verified. No reply or answer to the defense or "cross petition" was filed by the plaintiff. The cause was continued and leave was given to plaintiff to take depositions in term time. Plaintiff asked for permission to file a reply to the answer after the time had expired therefor, which was denied by the court, and upon motion of the defendant, judgment was rendered upon the pleadings in favor of the defendant, and certain findings of fact based upon the answer or cross petition of defendant were made by the court, over the objections of plaintiff. A motion was made to set aside the order for judgment upon the pleadings, upon a number of grounds most of which are waived as not insisted upon in the petition in error, and the sole contention is upon the action of the court in rendering judgment upon the pleadings.

The proceedings were instituted under the provisions of section 2326 of the Revised Statutes of the United States, requiring the party filing the adverse claim in the land office to commence proceedings in a court of competent jurisdiction within thirty days after filing his adverse claim and to prosecute the same with reasonable diligence.

It has been held that ejectment is the proper form of proceeding in such actions, Becker v. Pugh, 9 Colo. 589, 13 P. 906, and that the suit is one at law and not in equity, Burke v. McDonald, 2 Idaho 339, 13 P. 351, and that the parties have the right of trial by jury, Manning v. Strehlow, 11 Colo. 451, 18 P. 625. It is provided that if, in any action brought pursuant to section 2326 of the Rev. Stat. U.S. title to the ground in controversy shall not be established, the jury shall so find, and judgment shall be entered according to the verdict, and in such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title. 21 U.S. Stat. at Large, p. 505. Under this act the rulings are that each party is practically a plaintiff and must show his title; that there can be no non-suit, but that if neither show title the verdict must be special, and the title, of course, remains in the United States so far, at least, as the litigating parties are concerned. Jackson v. Roby, 109 U.S. 440, 27 L.Ed. 990, 3 S.Ct. 301; Rosenthal v. Ives, 2 Idaho 239, 10 P. 620. Under the section cited, upon the filing of the adverse claim all proceedings in the land office are suspended until the determination of a court of competent jurisdiction is reached, or until it is shown that the adverse claimant has not brought suit upon his adverse claim within the time fixed by law.

It has been held that where a defense is interposed setting up the claim of ownership or title in the defendant, a replication must be filed, or the plaintiff will be entitled to judgment on the pleadings. Newman v. Newton, 14 F. 634....