Lehman v. Sutter

• Decision Date: 23 May 1921
• Docket Number: 4328.
• Citation: 198 P. 1100,60 Mont. 97
• Parties: LEHMAN v. SUTTER ET AL.
• Court: Montana Supreme Court

198 P. 1100

60 Mont. 97

LEHMAN v. SUTTER ET AL.

No. 4328.

Supreme Court of Montana

May 23, 1921

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by Oswald Lehman against Julian A. Sutter and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Edgar G. Worden and Blackford & Huntoon, all of Lewistown, for appellant.

J. E Wasson, of Hilger, and Charles J. Marshall, of Lewistown, for respondents.

BRANTLY C.J.

This action was brought in pursuance of section 2326 of the Revised Statutes of the United States (U. S. Comp. St. § 4623), to determine an adverse claim to the Royal Dixie and Dixie Extension lode mining claims, situate in Fergus county of which plaintiff alleges he is the owner. To his second amended complaint, the defendants Julian A. Sutter, Eduard Sutter, and C. B. Noble demurred, on the ground that it did not state facts to constitute a cause of action, and that it was ambiguous, unintelligible, and uncertain. One Claudia Wegner was made a party defendant, but she did not appear in the court below by demurrer or otherwise. The court by a general order sustained the demurrer, and, plaintiff declining to plead further, rendered judgment dismissing the action. Plaintiff has appealed.

The pleading is very voluminous. It alleges in detail the several steps taken by plaintiff in making location of his claims. It then sets forth the facts upon which defendants predicate their claim, and proceeds to allege the conditions existing at the time their locations were made, for the purpose of impeaching their validity, and thus to make it manifest that their claim of title is without foundation. The following statement will be sufficient to present the questions submitted for decision:

The Royal Dixie and the Dixie Extension locations were made by plaintiff on April 21 and May 8, 1917, respectively. Amendments of both of these were made on July 26, 1917. Defendants base their claim upon three conflicting locations designated as Sutter No. 1, No. 2, and No. 3. No. 1 was located on May 15, and the others on March 15 and 22, 1916, respectively. The two Sutters and Noble were the locators. The claims of both plaintiff and defendants are relocations of ground which had theretofore been substantially covered by claims known as the Dixie and Royal, located by one Henry Nietert on June 5 and October 4, 1909, respectively. These had been represented for each year up to and including the year 1915. On July 14, 1916, Nietert conveyed an undivided nine-tenths interest in them to the defendants, the two Sutters and C. B. Noble. On September 12, 1916, he conveyed the remaining interest to Claudia Wegner. The subjoined diagram illustrates the relative situation of the several claims and the extent of the conflict between those of plaintiff and defendants.

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The Royal and Dixie are designated by the numerals 1, 2, 3, 4, and 5, 6, 7, 8; the Sutter claims by the capital letters A, B, C, D; B, E, F, D, and G, H, I, J; and the Royal Dixie and Dixie Extension by the small letters a, b, c, d, and c, d, e, f. The point of discovery on the Sutter No. 1 is some distance to the west of the line "B D." This claim is therefore not involved in this controversy, except to the extent of the small area included in the triangle which has its base at "a." The points at which the discoveries of the Sutter No. 2 and No. 3 were made are within the area covered by the Royal Dixie and the Dixie Extension, though they are not indicated on the diagram.

To show the invalidity of defendants' locations, the plaintiff alleges that, in making the locations of the Royal and the Dixie, Nietert fully complied with the laws of the United States and the state of Montana relating to discovery, marking the boundaries, doing the preliminary work, and the making and recording of the certificates of location; that he thus became entitled to the possession of the ground covered by them, and thereafter continued to be entitled to the possession by doing, or causing to be done, the annual assessment work upon them for each year up to and including the year 1915, and until he made conveyance to the two Sutters, Noble, and Claudia Wegner; that each of the Sutter claims was relocated on September 14, 1916, by the defendants other than Claudia Wegner, while the ground was held by Henry Nietert and his grantees, the defendants, under and by virtue of the location of the Dixie and Royal lode claims, and that for this reason the ground covered by these claims was not then unoccupied, unappropriated public land of the United States; that the certificates of location of the Sutter claims do not contain such a description, by reference to natural objects or permanent monuments, as will identify them; that on the Sutter No. 1 and Sutter No. 3 no location work was done by the running of cuts or the sinking of shafts, as required by the statutes of Montana, and that for these several reasons they are not now, and never have been, valid and subsisting claims, and, being in conflict with plaintiff's claims, constitute a cloud upon his title. It is further alleged that Claudia Wegner claims an interest in the Royal and the Dixie claims, but that her interest therein was abandoned by reason of the failure by her and her codefendants to do any assessment work on them for the year 1916, and hence that her claim is wholly without right. It further appears inferentially that, at the time plaintiff located the Royal Dixie and the Dixie Extension, he knew of the existence of the Sutter locations.

The amended complaint is not a model pleading. It would have been entirely sufficient if plaintiff had confined himself to appropriate allegations showing his right to the ground covered by his locations, and left it to the defendants to disclose the nature of their claim. It was not necessary for him to go further, and show that defendants' adverse claim is without foundation. Woody v. Hinds, 30 Mont. 189, 76 P. 1. Since, however, he has assumed to do this, and the demurrer admits the truth of his allegations in this behalf, the question submitted for decision is whether, assuming the plaintiff's allegations to be true, they so far impeach the validity of the Sutter locations, or any of them, as to put the defendants upon the defensive.

In view of the fact that plaintiff made his locations with knowledge that the defendants were claiming the ground under the Sutter locations, the allegations touching defects in the recorded certificates of these claims become wholly immaterial. Revised Codes, § 2293. They may be passed without further notice....