Murray v. Polglase

• Decision Date: 27 January 1896
• Citation: Murray v. Polglase, 17 Mont. 455, 43 P. 505 (Mont. 1896)
• Parties: MURRAY et al. v. POLGLASE et al.
• Court: Montana Supreme Court

43 P. 505

17 Mont. 455

MURRAY et al. v. POLGLASE et al.

Supreme Court of Montana

January 27, 1896

Appeal from district court, Silver Bow county; William O. Speer Judge.

Action by James A. Murray and others against Jane Polglase and others. Judgment for plaintiffs. Defendants appeal. Reversed.

The defendants made application in the United States land office for patent upon the Ramsdell quartz lode mining claim. The plaintiffs, Murray et al., filed their adverse claim in the land office, and then commenced this action. It is what is ordinarily known as an adverse claim suit. It appears by the complaint that the defendants' mining claim is in conflict, as to part of its area, with the claim upon which the plaintiffs rely, viz. the Maud S. This action is the ordinary one to determine whether defendants are entitled to proceed in the United States land office for patent upon the ground in conflict between their two claims. There are also in the complaint, allegations in the nature of those in an action of ejectment. The defendants denied all of the alleged rights of the plaintiffs, and, further, set up that, if plaintiffs ever made any location of the ground as the Maud S. claim, they had forfeited all right thereto by failing to represent the ground in the years 1887 and 1888. Plaintiffs in replication, admitted that they did not place $100 worth of labor or improvements upon the Maud S. claim in the years 1887 and 1888; but allege that on December 29, 1887, they made entry in the United States land office for the said claim, and that they then obtained the receiver's receipt for the same. Upon the trial the plaintiffs introduced in evidence the location notice of the Maud S. claim, and testimony tending to show its location, and the conveyances from the locators to the plaintiffs, and the receiver's receipt which they pleaded in their replication. Thereupon they rested. Thus, at the close of the plaintiffs' case it appeared, by the admissions of the pleadings, that they had failed to represent their claim in the years 1887 and 1888, and, by the evidence, that they had the receiver's receipt dated December 29, 1887. The defendants opened their case by offering the decision of the register and receiver of the United States land office, canceling and setting aside the receiver's receipt which had been introduced in evidence, and, in the same connection, the decision of the commissioner of the general land office affirming the decision of the register and receiver, and also the decision of the secretary of the interior affirming the decision of the commissioner of the land office. These documents were all excluded by the court. After so excluding these papers, the court practically refused to admit any other testimony by the defendants, and instructed the jury to find a verdict for the plaintiffs, for the reason that there was no evidence admitted in the case on behalf of the defendants. The defendants appeal from the judgment.

Forbis & Forbis, F. T. McBride, and L. J. Hamilton, for appellants.

Geo. Haldorn and O. M. Hall, for respondents.

DE WITT, J. (after stating the facts).

The receiver's receipt offered by the plaintiffs was evidence that the title to the mining premises was in them. Section 542, Code Civ. Proc. (Comp. St. 1887). If the court was correct in excluding all of the testimony offered to attack the receiver's receipt, then the plaintiffs had made a case of title in themselves, and the court was correct in instructing the jury to find for the plaintiffs. The inquiry therefore, now is, did the court err in excluding the decisions of the local land office, the commissioner, and the secretary, described in the statement of the case above? The decisions of the land office and the commissioner and the secretary were made upon a protest being instituted against the issuance of a patent to these plaintiffs. The protests were made upon the ground of fraud in obtaining the receipt. The decisions of the interior department of the United States treated the questions of fact raised in the protest on trial before it, and, so treating the facts, arrived at a conclusion. When these decisions were excluded by the district court it was upon the ground, as the judge said that he could not admit them for the reason that there were matters in them which should not go to the jury at that time. Counsel for the defendants thereupon stated, in effect, that they did not care whether the reasons for the decisions, as contained therein, went to the jury or not; but they wished the fact of the decisions to be introduced in evidence, and offered that the court might admit the decisions without giving to the jury the reasons therefore which were set out in the opinions rendering the decisions. This the court refused to do. The judge remarked that he could not admit the decisions as a whole, and he could not see how he could admit a part without admitting the whole, and therefore would not admit them at all. The court certainly erred in this ruling, if the only reason which could be given therefore was that advanced by the court. We are not prepared to say that the opinions and reasons for the decisions of the land department, as given by the officers rendering the decisions, were not competent to be introduced along with the decisions. But the material point to be proved was the cancellation of the receiver's receipt, and, if that were proved by introducing the decisions of the...