Manning v. Strehlow

• Decision Date: 15 June 1888
• Parties: MANNING et al. v. STREHLOW.
• Court: Colorado Supreme Court

18 P. 625

11 Colo. 451

MANNING et al. v. STREHLOW.

Supreme Court of Colorado

June 15, 1888

Error to district court, Custer county.

This is a proceeding to determine an adverse claim filed against an application for patent to a mining location. The property involved is the Mountain Boy lode, situate in Custer county. It was originally located on the 26th day of May, 1875, and the plaintiff below, August Strehlow, acquired title from the locators by conveyances, and by judicial decrees. He went into possession, and appears to have continued in actual possession of the claim ever since, and to have expended a large amount of money in its development. It was supposed however, by the ancestor of the present plaintiffs in error Amos W. Manning, since deceased, that the plaintiff had suffered the property to become abandoned, and subject to relocation; accordingly he, with one Fitzgerald, who subsequently transferred his interest to said Manning entered upon the premises on March 6, 1882 and made an attempted relocation thereof. The defaults relied upon as working an abandonment of the claim were that the plaintiff had suffered his interest in the claim to be sold by the sheriff of Custer county on two certain writs of execution against him, from which sales he had not redeemed. That his father, an alien who had never declared his intention to become a citizen, having a judgment against him, had redeemed the property from the first sale, and afterwards caused it to be sold upon his own execution, and the certificate of sale to be made to a citizen, as trustee for him. And since rights in and to the mineral lands of the public domain are restricted by the acts of congress to citizens of the United States, and those who have declared their intention to become such, the attempts of Strehlow, Sr., to become the owner of this lode, through the intervention of a trustee, had the effect merely of restoring it to the government, and to subject it to relocation and entry by a citizen. Manning applied for a patent to the lode a few months after his attempted relocation thereof, whereupon the plaintiff filed his adverse claim, and brought this suit to establish his own right to the patent. Pending the action Manning died, and his heirs at law were substituted as defendants. The facts concerning the sheriffs' sales were set up in the answers, but stricken out by the court on motion of the plaintiff. Defendants offered to prove the same facts on the trial, but the testimony was rejected. It was also alleged in the answers that prior to the commencement of the action the plaintiff had conveyed all his interest in said Mountain Boy lode to his wife, Marie Strehlow, under the name of the 'First National Lode,' which was alleged to be another name for the same property. Defendants proved on the trial that plaintiff had executed a deed to his wife of all his interest in the First National lode, but the testimony was somewhat conflicting as to whether the two names embraced the same property. It also appeared that there never had been a regular location of a lode by the name of 'First National,' and, in addition to all, Marie Strehlow appeared as a witness for the plaintiff, and disclaimed any title to the Mountain Boy, and stated that her title to the First National did not include any portion of the territory of the former.

Wells, Macon & McNiel, A. J. Rising, and George S. Adams, for plaintiffs in error.

Blackburn & Dale, for defendants in error.

BECK C.J., ( after stating the facts as above.)

Counsel for plaintiffs in error contend that this cause was tried on an erroneous theory in the court below, and that the proper issue involved was not submitted to the jury; that the issue tried was, which party had the better right in the premises or whether the plaintiff was entitled to possession as against the defendants' ancestor, whereas the jury should have been required to find whether either party was, under the local rules of miners, the acts of congress, and the laws of the state, entitled to a patent from the United States; citing McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110. Counsel for defendant in error contend as follows: 'The question as to the right to receive a patent was not and should not have been before the court or jury; the officers of the land department of the United States decide that. Our court could only determine who is entitled to the possession of the disputed premises.' Section 2326, c. 6, Rev. St. U.S. 'And if neither party has such right, the court so finds and adjudges; all of which was done in the present instance, as appears from this record.' Act March 3, 1881. We are of opinion that the point made by plaintiffs in error is well taken, and must be sustained. In McGinnis v. Egbert, supra, in construing the foregoing sections of the acts of congress, we say: 'This section (2326) makes it the duty of a person to file an adverse claim against the issuance of a patent within 30 days thereafter, and to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession. As the law then stood, the party in whose favor the judgment was rendered became entitled to a patent. But the section was so amended by the act of March 3, 1881, that neither party was entitled to a judgment in his favor unless he was at the time of the adjudication entitled to a patent of the premises in controversy by virtue of a compliance with the mining laws. If neither party establishes such a right, the jury is required to find that fact, and...