Marshall Silver Min. Co. v. Kirtley

• Decision Date: 29 March 1889
• Citation: 21 P. 492,12 Colo. 410
• Parties: MARSHALL SILVER MIN. CO. et al. v. KIRTLEY et al.
• Court: Colorado Supreme Court

21 P. 492

12 Colo. 410

MARSHALL SILVER MIN. CO. et al. v. KIRTLEY et al.

Supreme Court of Colorado

March 29, 1889

Commissioners' decision. Appeal from district court, Gilpin county.

This action was brought by appellees, who were plaintiffs below against the Marshall Silver Mining Company, to recover the possession of the Kirtley lode mining claim, an undivided one-half of the Junction lode mining claim, and an undivided three-fourths of the Trade Dollar lode mining claim, and it was averred in the complaint that the action was brought in support of an adverse claim filed against said defendant's applications for a patent for the Wash Lewis and Henry lode mining claims. The defendant, answering the complaint, denied plaintiff's title to said mining claims, admitted that the action was brought in support of an adverse claim as to so much of the Kirtley claim as is covered by the Wash Lewis claim, but denied that it was brought in support of an adverse claim as to the remaining portion of the Kirtley claim, and, as to the Junction and Trade Dollar claims, alleged that plaintiffs failed to bring any adverse claims in support of their title, or pretended title, to said Junction and Trade Dollar mining claims within the 60 days during which defendant's applications for a patent for the Wash Lawis mining claim, and for a patent for the Henry mining claim, were published, and that by such failure plaintiffs were barred from asserting title to either the Junction or Trade Dollar claims, so far as said claims conflicted with or were covered by either the said Wash Lewis claim or the said Henry claim; alleged that defendants claimed the right to occupy and possess all that part of the Junction and Trade Dollar claims lying within the exterior lines of said Wash Lewis and Henry claims, by the pre-emption, discovery, and location, as parcels of said Wash Lewis and Henry claims, and also by reason of the failure of the plaintiffs to file adverse claims in favor of said Junction and Trade Dollar claims against said Wash Lewis and Henry claims. Plaintiffs' demurrer to so much of defendant's answer as alleged a failure to adverse the Wash Lewis and Henry claims, based upon the grounds that, if said allegations were true, the facts would be no bar to the action, and that a failure to adverse is no bar to bringing an action to try title to claims for which no entry has been made, was sustained. By a supplemental complaint the plaintiffs seek to recover possession of the west 1,426 feet of the Steam-Boat lode mining claim. A motion to strike out this supplemental complaint was denied. Defendant's answer to said complaint puts in issue all the material allegations thereof, and alleges that the land claimed or covered by the said Steam-Boat claim is covered by patents issued to defendant by the United States, for the No. 8, No 10, and O. K. lode mining claims, and by applications by defendant for patent for the Wash Lewis and Henry claims, and that no adverse claim was filed on behalf of said Steam-Boat claim against said applications for patent by defendant within the period allowed by law for filing adverse claims and that defendant is the owner of said patented claims, and is the owner of, and has the right to occupy and possess said unpatented claims. A demurrer to so much of the answer to the supplemental complaint as relates to the applications for patents for the Wash Lewis and Henry claims, on the ground that the allegations thereof are not sufficient to constitute a defense, was sustained. The Colorado Central Consolidated Mining Company was made co-defendant on its petition. The jury, by their verdict, found that plaintiffs were entitled to the premises in conflict between the Kirtley and Henry lodes, between Kirtley and Wash Lewis lodes, between the Trade Dollar and Henry lodes, and between the Junction and Henry lodes, and as to the Steam-Boat and No. 10 lodes they found that plaintiffs were the owners of a certain portion of the Steam-Boat lode, and were entitled to the possession thereof, excepting the grounds embraced within the lines of the O. K. lode. The judgment entered on the verdict is for the recovery of the premises therein described, excluding so much thereof as are embraced within the side and end lines of the No. 7, No. 8, No. 10, and O. K. claims.

Morrison & Fillius, for appellants.

L. C. Rockwell, for appellees.

RISING C., ( after stating the facts as above.)

The ruling of the court upon the plaintiff's demurrer to the defense, set up in the answers, based upon the failure to adverse the Wash Lewis and Henry claims with the Junction and Trade Dollar claims, is assigned for error. In considering the question presented by this assignment it is proper to first examine the pleadings for the purpose of ascertaining the object of the action. The complaint contains the proper allegations for an action brought to recover the possession of the Kirtley lode, the undivided one-half of the Junction lode, and the undivided three-fourths of the Trade Dollar lode, and also contains the further allegation that the action is brought in support of an adverse claim filed against the applications for patent for the Wash Lewis and Henry lodes. It is contended by counsel for defendant in error that the last allegation tenders an immaterial issue, and that the sole object of the action is to recover the possession of the premises described in the complaint, and that its determination does not in any manner depend upon, and cannot be affected by, the filing, or by the failure to file, adverse claims against the applications for patents to the Wash Lewis and Henry lodes; while counsel for plaintiff in error contend that the object of the action is to have adverse claims against the issuance of patents to the Wash Lewis and Henry lodes determined. Section 2325, Rev. St. U.S., prescribes the necessary steps to be taken by an applicant to obtain a patent for mineral land, and declares: '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 five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.' Section 2326 declares: 'Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse...