Schnepel v. Mellen

• Decision Date: 31 January 1878
• Citation: 3 Mont. 118
• Parties: SCHNEPEL, appellant, v. MELLEN, respondent.
• Court: Montana Supreme Court

3 Mont. 118

SCHNEPEL, appellant,

v.MELLEN, respondent.

Supreme Court of the Territory of Montana.

January Term, 1878.

Appeal from Second District, Deer Lodge County.

THE facts of the case are included in the opinion of the court.

J. C. ROBINSON, for appellant.

The probate judge under the law is trustee for occupant alone. The trust is created by act of congress and must conform thereto. U. S. Rev. Sts., §§ 2387-2391.

The act of congress was not intended to deprive a bona fide occupant of his rights. Ricks v. Reed, 19 Cal. 566;Jones v. Petaluma, 38 Id. 399;Allemany v. Same, Id. 556; LeRoy v. Cunningham, 44 Id. 602. The foregoing cases are under an act of congress similar to that of 1867, under which the probate judge was acting in present case and the authorities are in point as to who are the beneficiaries named. To same point see Edwards v. Tracy, 2 Mont. 50; Cod. Sts. of Mont. 547, § 1. Sections 6 and 8 of same statutes designate who are entitled to file prior to public sale. The right is confined to occupants, and respondent was not an occupant within the meaning of the law. He was only a trespasser on another's possession.

As to what constitutes possession see Cod. Sts. 516, § 7; LeRoy v. Cunningham, 44 Cal. 602;Gray v. Collins, 42 Id. 156;Brumagim v. Bradshaw, 39 Id. 24; Tyler on Ejectment, §§ 888-891, 899, 900, 904, 905. The affidavit in this is in due form but false in fact.

Appellant was entitled to file by reason of the value of his improvements and undisputed possession since 1868.

The filing of appellant was within the prescribed time, counting from the ratified act of L. W. O'Bannon. A party entitled to file has until the time unclaimed lots are advertised to be sold, to make such filing. See § 16, Town Site Act; Cod. Sts. Mont., 547; Shaw v. Randall, 15 Cal. 386;Tuohy v. Chase, 30 Id. 527;People v. Lake County, 33 Id. 487; Sedg. on Stat. Const. 368, 370, 376.

If statute does limit filing to sixty days, respondent was not in time, if he had any right to file at all. The time expired August 18, and not on August 20, as stated in notice; but if on the 20th as that was Sunday, it must have expired on Saturday, 19th, the day previous. Bissell v. Bissell, 11 Barb. 96;1 Wend. 42;Ex parte Dodge, 7 Cow. 147; 17 N. Y. (3 Smith) 502. The provision on this subject in the Practice Act is confined thereto.

Either appellant had right to file, or the lot should have been treated as unclaimed, to be disposed of at public sale.

W. W. DIXON, for respondent.

1. The laws for disposal of town lots, both of the United States and of the Territory, are analogous to the pre-emption laws, and the same principles of construction should apply.

The claimant of land or lot must comply with the law in time and manner of filing or he loses his right.

The decision of the land department and courts agree that a party failing to file his claim within time required loses his rights if another claim intervenes. 1 Lester's Land Laws, 444; Copp's Pub. Land Laws, 289 et seq., and 409; Johnson v. Towsley, 13 Wall. 72. Courts have no power to dispense with requirements of act of congress. Megerle v. Ashe, 23 Cal. 74; Damrell v. Meyer, 40 Id. 166;Poppe v. Athearn, 42 Id. 606;Megerle v. Ashe, 47 Id. 632;Carpenter v. Sargent, 41 Id. 557;Borland v. Lewis, 43 Id. 569.

Claimant of town lot must file within time prescribed. Cofield v. McClellan, 1 Col. 372.

2. Respondent entered on lot in dispute August 21, 1876; did some work, and on same day filed statement in due form. See agreed statement of facts. These points cannot now be controverted. Whether it was a case of trespass is immaterial.

The case of Edwards v. Tracy, 2 Mont. 49, differs in this, that there was no occupation or possession.

Appellant lost his right to the lot by failing to file within required time, and respondent's claim intervened.

3. Requirement to file within time limited is mandatory and not directory, otherwise it amounts to nothing. See authorities cited above. The provision is analogous to mining laws requiring work to hold a claim; if work is not done the claim is forfeited, if third person takes advantage of it, though the law may not expressly say so. King v. Edwards, 1 Mont. 235.

4. Respondent filed August 21, 1876. It is agreed that the notice of the probate judge was sufficient, in due form, pursuant to and in accordance with law. Appellant claims his filing Aug. 21, and that it was within the time.

The rule of Civil Practice Act should apply in computing time and when the last day falls on Sunday, the day following is in time. 2 Pars. on Cont. 666; 6 Abb. N. Y. Dig. 139, § 132.

5. If neither appellant nor respondent filed in time, the claim of respondent is best, he having filed first. Cod. Sts. 550; Town Site Act, § 16.

6. Appellant's filing only dates from Aug. 22, when he ratified act of L. W. O'Bannon, and this was too late by any possible construction.

Quere, can agent without written authority make application contemplated by Town Site Act.

The act of ratification must occur at time and under circumstances when principal might have lawfully done the act ratified. 1 Pars. on Cont. 45, note and authorities cited; 2 Kent, 450, note; Story on Agency, §§ 244-6.

The law will not admit the ratification of agent's acts to defeat intervening rights of third party. Stoddard v. U. S., 5 Abb. N. Y. Dig. 391, § 9; Taylor v. Robinson, 14 Cal. 396;McCracken v. San Francisco, 16 Id. 624. And see Cook v. Tullis, 18 Wall. 332.

Respondent is entitled to the lot by compliance with the law. Appellant lost his rights by his own laches for which no excuse is offered, and therefore judgment of the court below should be affirmed.

WADE, C. J.

This action was instituted to quiet the title to a certain lot in the town of Philipsburg, in the county of Deer Lodge, and was submitted to the court and determined upon the following agreed statements of facts.

1. That the plaintiff and defendant are now and were at the times hereinafter mentioned citizens of the United States, over twenty-one years of age, and residents and inhabitants of the town of Philipsburg in Deer Lodge county, Montana.

2. That at the times hereinafter mentioned, O. B. O'Bannon was and now is the duly qualified and acting probate judge of said Deer Lodge county, Montana.

3. That about the first day of June, A. D. 1876, the land on which the town of Philipsburg, Deer Lodge county, Montana Territory is situated (then being on public lands of the United States, and said town of Philipsburg being then and now not an incorporated town), was duly and regularly entered in the United States Land Office at Helena, Montana Territory, by said O. B. O'Bannon, probate judge of said county of Deer Lodge, under and by virtue of the act of congress of the United States relating to town sites on public lands, approved March 2d, 1867, and entitled: “An act for the relief of the inhabitants of cities and towns upon the public lands,” and the acts of congress amendatory to said act or relating to said matter of town sites, and said entry was duly allowed, as entry of the town site of said town of Philipsburg, and afterward a patent therefor from the United States to said probate judge was duly issued.

4. That lot No. three (3) in block No. seven (7) in controversy in this case is within and included in said town site of said town of Philipsburg, entered as above mentioned, and is one of the regularly laid off and surveyed town lots thereof.

5. That after the entry of said town site as above mentioned, the said O. B. O'Bannon, probate judge as aforesaid, in pursuance of, and in accordance with, section five (5) of chapter fifty-eight (58) of the Codified Laws of Montana Territory, approved January 12, 1872, on page 548 thereof, in the law relating to town sites, gave, posted and published due notice as required by said section 5, of said entry of said town site, and requiring any claimant of any town lot or lots in the town of Philipsburg to file in the office of the probate judge of the county a statement of his or their claims on or before the 20th day of August, 1876; that the first publication and posting of said notice was on the 19th day of June, 1876; that said notice was given in the manner and for the length of time required by law, and was in accordance therewith; and that the 20th day of August, 1876, was a Sunday.

6. That the lot in controversy in this case has been actually possessed by the plaintiff herein since the year 1868, and that he had on said lot, improvements to the value of about $600, and that plaintiff's right and possession were not disputed by defendant herein, prior to the 21st day of August, 1876, nor did the defendant claim the lot before that time.

7. That on the 21st day of August, 1876, and before any application to enter the lot in dispute had been made, or any statement of claim thereto had been filed by any one, the defendant made application to the probate judge to enter said lot, and immediately thereafter entered upon said lot in dispute, and dug some post holes thereon, and afterward on the same day, to wit, on the 21st day of August, 1876, did make and file with the probate judge, in due form of law, his application to enter, and statement of claim to said lot, which was duly received and filed by the probate judge, and the lawful fees therefor paid by the defendant, and that the proceedings above mentioned were the first claim or right made by the defendant to said lot.

8. That on said 21st day of August, 1876, and between the time when the defendant made application to enter said lot and the time when he filed his statement of claim thereto, as above mentioned, one L. W. O'Bannon, assuming to act as agent of and for and on behalf of plaintiff herein, and in plaintiff's name, filed with the probate judge the application to enter and statement of claim of the plaintiff to the lot in dispute, which was in due form, and was duly received and filed by the probate judge, and the...