Lohmann v. Helmer
| Citation | 104 F. 178 |
| Decision Date | 09 October 1900 |
| Docket Number | 2,627. |
| Parties | LOHMANN et al. v. HELMER et al. |
| Court | U.S. District Court — District of Oregon |
Davis Gantenbein & Veazie, for complainants.
J. C Moreland, for defendants.
The complainants bring this suit, as the heirs at law of Hermanne Lohmann, to set aside conveyances made of certain mining property belonging to said Hermanne Lohmann at the time of his death, situated in Grant county, Or., by Fred Yorgensen as administrator of said Hermanne Lohmann's estate, to the other defendants, and for an accounting. It is alleged that Hermanne Lohmann died in Canyon City, Grant county, on the 18th day of March, 1896; that at the time of his death he was possessed of, and entitled to, two mining claims described in the complaint; that upon his death Yorgensen was appointed administrator of his estate, and ever since has been, and now is, the duly qualified and acting administrator of such estate; that about the 1st of November, 1898, Yorgensen and the defendants Helmer and Hines conspired together to cheat, wrong, and defraud the complainants of their right in said mining property, and to obtain possession of the same for their own private use and benefit; that, in pursuance of such conspiracy, Yorgensen, on or about said date, made a pretended sale of said mining properties to the defendant Helmer, and delivered to said Helmer a pretended deed of conveyance of said mining property. It is alleged that no petition for the sale of the said mining property was ever presented to and that no showing was ever made by the said administrator that it was necessary to sell such property, or any part of it, for the purpose of paying funeral charges, expenses of administration, or claims against the estate, or for distribution, and no order by the county court was ever made authorizing the sale of such properties; that since such sale the defendants Helmer and Hines have been in possession of the property and mining claims, and are engaged in working the same and taking ore therefrom; that they have taken and removed from such mines a large amount of ore, and appropriated the gold taken therefrom to their own use, the amount of which the complainants have no means of knowing, but they allege, on information and belief, that it is of the value of not less than $10,000; That the defendants Helmer and Hines have posted and filed notices of location of the said mining claims in their own names, since coming into possession thereof, and are endeavoring by means of their possession to acquire title adverse to the complainants as heirs of the said Hermanne Lohmann; that the defendant Yorgensen, administrator as aforesaid, is acting in collusion with the defendants Helmer and Hines, against the rights of the complainants, and they are now endeavoring to sell such mining property, whereby the rights of the complainants will become wholly lost. The complainants are subjects of the empire of Germany.
To this complaint the defendants demur, and the following questions are presented: (1) The complainants being aliens and citizens of Germany, have they a right of possession of these claims? (2) If the complainants have such right of possession, has not the county court of Grant county exclusive jurisdiction in the premises? (3) Does it appear from the allegations in the bill that the sale to Helmer and Hines is not a valid sale?
Section 2319 of the Revised Statutes provides that:
'All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.'
The contention of the defendants is that under this statute, in order to maintain an action for the right of possession to mining claims, the complaint must show that the complainants are citizens of the United States, or have declared their intention to become such. The case principally relied upon is that of Lee Doon v. Tesh (Cal.) 8 Pac. 621. In that case the defendants had applied to the United States land office for a patent to a placer mine. The plaintiffs, who claimed to own adversely, filed a protest and adverse claim in the land office, claiming a part of the land applied for. Thereupon the register and receiver stayed proceedings in the land office, and suit was thereafter brought, under section 2326 of the Revised Statutes, to determine the question of the right of possession to the disputed ground. Section 2326 provides for such a stay 'until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived'; and it provides that:
The case of Lee Doon v. Tesh was therefore brought for the purpose of obtaining a patent. The suit was a means of determining the contest instituted in the land department, and the court held that in such a case the complaint must show in the plaintiffs qualifications necessary to entitle them to purchase, including an allegation that the plaintiffs are citizens of the United States, or have declared their intention to become such. The court says:
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Glover v. Brown
...L.Ed. 883; see, also, Rose's U. S. Notes.) The heir obtains title by descent, and not through the process of the probate court. (Lohmann v. Helmer, 104 F. 178; Binswanger v. Henninger, 1 Alaska, If the land was in fact community property, the probate court had no jurisdiction over it and al......
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Herrington v. Martinez
...adverse claim derive their interest were aliens, is properly made; it being in effect made on behalf of the government. In Lohmann v. Helmer, C.C., 104 F. 178, 181, although involving the rights of an alien to inherit a mining claim and to set aside a collusive conveyance, the court discuss......
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