Murray v. Polglase
| Decision Date | 18 December 1899 |
| Parties | MURRAY et al. v. POLGLASE et al. |
| Court | Montana Supreme Court |
Appeal from district court, Silverbow county; William Clancy, Judge.
Action by James A. Murray and others against Jane Polglase and others to establish an adverse claim to a mine location, in which W. W. Adams and others intervened. Judgment was rendered for intervened, from which defendants appeal; and plaintiffs appeal from the judgment and an order denying a new trial. Reversed.
On September 17, 1892, the defendants filed their application in the United States land office for a patent to the Ramsdell lode-mining claim. After notice was published, and within the time prescribed by law, the plaintiffs, Murray et al., filed their adverse claim in the land office, and began this suit. The plaintiffs base their claim upon a prior location described as the "Maud S. Lode-Mining Claim," alleging ownership and right of possession, and ouster by defendants. The defendants join issue upon these averments and then set up affirmatively that they were in possession of the ground in controversy long before plaintiffs made any claim thereto, and that, if plaintiffs ever made a location thereon, they had forfeited all right thereto by failure to do the annual representation work for the years 1887 and 1888. Plaintiffs, in their replication, admit that they did no representation work upon the Maud S. claim for the years 1887 and 1888, but allege that they made a final entry of the land embraced therein in the land office on December 29 1887, and obtained a receiver's receipt therefor showing that they were entitled to a patent. The defendants' location was made on January 1, 1888. The location of the Maud S. claim was made by one of the plaintiffs and others on May 28, 1881. Both claims cover the same ground. A trial of the cause was had in the district court, and resulted in a judgment in favor of plaintiffs. Upon appeal to this court the judgment was reversed, and a new trial ordered (17 Mont 455, 43 P. 505), for error by the trial court in excluding from the evidence decisions of the local land office, the commissioner of the land office, the commissioner of the land office at Washington, and the secretary of the interior, offered by the defendants, canceling and setting aside the receiver's receipt held by plaintiffs. The final decision of the secretary of the interior was rendered June 1, 1892. Before the second trial was had in the district court, Walter W. Adams, Henry Muntzer, William Burton, Eduard Wegner, and Charles Colbert made an application to the court for leave to intervene in the cause; claiming the ground in controversy, as against both plaintiffs and defendants, under a location of the same made by themselves on January 31, 1894, as the "Adverse Lode-Mining Claim." They allege in their complaint in intervention that the plaintiffs had lost whatever right they acquired under the Maud S. location by failure on their part to do any representation work on the claim for the years from 1888 to 1893, inclusive, or to resume work thereon before January 31, 1894, the date of completion of the Adverse location. They also allege failure on the part of the plaintiffs to claim their rights by filing affidavit of claim under act of congress approved November 3, 1893. As against defendants, they allege that the receiver's receipt outstanding in the hands of plaintiffs on January 1, 1888, had withdrawn the land from the public domain; that it was not open to exploration and location by any one at that time; and that therefore defendants acquired no right to it by virtue of the Ramsdell location. Judgment is demanded that they be declared the owners and entitled to the possession of the ground as against both plaintiffs and defendants. The complaint was allowed to be filed over the objection of the plaintiffs and defendants, who preserved their exceptions. At the trial the plaintiffs introduced in evidence the facts of their location, their location notice and the receiver's receipt, and thereupon rested. The defendants introduced the records of the United States land office, showing the cancellation of this receipt, and then offered proof of their location, and notice recorded in pursuance thereof. Upon objection of all the other parties, this evidence was excluded, and thereafter the defendants took no further part in the trial than to enter their objections and preserve their exceptions. Plaintiffs and interveners concluded their proofs, and the jury rendered a verdict for the interveners. Judgment was accordingly entered in their favor under the prayer of their complaint. Plaintiffs moved for a new trial, which was denied. Defendants have appealed from the judgment. Plaintiffs have appealed from the judgment and the order denying a new trial. The appeals were filed under separate numbers, but were heard and are decided together.
John W. Cotter, Geo. Haldorn, Forbis & Forbis, and F. T. McBride, for appellants.
Wm. H. De Witt, for respondents.
BRANTLY C.J. (after stating the facts).
The records of the United States land department, introduced by defendants, show that the entry of the ground in controversy by the plaintiffs on December 29, 1887, was canceled for fraud, upon the protest of some of the defendants and the predecessors of the others. The fraud alleged and established was that plaintiffs had represented to the register and receiver that they had done sufficient work upon the claim to entitle them to a patent, whereas they had not done more than onehalf that amount. From these facts and the foregoing statement it will be seen that the parties, respectively, occupy these positions: The plaintiffs contend that, by their entry and the receipt issued to them, the land was withdrawn from the public domain, so that the defendants could acquire no rights by their location on January 1, 1888, notwithstanding no work was done by plaintiffs for the previous year, and the entry was subsequently canceled for fraud. This withdrawal, they say, was effective to protect them against a location by any one else until the receipt was finally canceled on June 1, 1892, and that when this occurred they could resume work, and thus retain their original right. The defendants insist that, as the entry was void, because fraudulently made, the plaintiffs were not, even during the existence of the receipt, excused from doing the necessary work to prevent a forfeiture, and that a cancellation of the entry inured to their benefit, so as to give them a valid claim to the ground under their location. The interveners support the contention of the plaintiffs against the claim of the defendants, but maintain that their claim is good as against plaintiffs, because of a forfeiture incurred by plaintiffs in 1893. The trial court sustained the contention of the plaintiffs as against defendants, thus excluding defendants from the case, leaving only the question of the forfeiture of 1893 to be tried between the plaintiffs and the interveners. Both plaintiffs and defendants contend that the interveners have no rights in this case. These contentions require the solution of two questions: (1) Did the court err in permitting the intervention? (2) Assuming the defendants' location to be otherwise valid, did they acquire any right thereunder by virtue of the cancellation of plaintiffs' entry?
1. We are of the opinion that the trial court erred in permitting the intervention. Actions of this kind are brought under section 2326 of the Revised Statutes of the United States and the act of congress of March 3, 1881, amendatory thereof. The form of the action and the mode of procedure are regulated by the same rules and controlled by the same statutes that apply to ordinary actions in the state courts. Wolverton v. Nichols, 5 Mont. 89, 2 P. 308; Milligan v. Savery, 6 Mont. 130, 9 P. 894; 420 Min. Co. v. Bullion Min. Co., 9 Nev. 240. But the ultimate question to be determined is, which of the parties is entitled to a patent? The action may be in ejectment, or a suit to quiet title, according to the position of the parties at the time suit is brought; but the ultimate purpose of the suit must be kept constantly in view, so that the judgment may be so framed as to accomplish that purpose. Wolverton v. Nichols, supra, was reviewed by the supreme court of the United States. 119 U.S. 485, 7 S.Ct. 289, 30 L.Ed. 474. That court, conceding the right to the territorial court to try the case under the statutes of the territory applicable to the form of action therein adopted, reversed the judgment of the trial court on the ground that it misinterpreted the facts proved by the plaintiffs in support of their case. In speaking of the purpose of the action, however, the court said: In Mining Co. v. Hammer, 6 Mont. 53, 8 P. 153, Mr. Justice Galbraith, for the court, said: "Now, although the courts of this territory, in determining the title to mining claims where there is a dispute in relation thereto in the land office, have adopted the forms of action by which title to land is tried, which...
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