Sherlock v. Leighton

• Decision Date: 28 February 1901
• Citation: 9 Wyo. 297,63 P. 580
• Parties: SHERLOCK v. LEIGHTON
• Court: Wyoming Supreme Court

63 P. 580

9 Wyo. 297

SHERLOCK v. LEIGHTON

Supreme Court of Wyoming

February 28, 1901

9 Wyo 297 at 311.

Original Opinion of January 10, 1901, Reported at: 9 Wyo. 297.

Rehearing denied.

POTTER CHIEF JUSTICE. CORN J., and KNIGHT J., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER CHIEF JUSTICE.

Counsel for defendant in error has filed a petition for rehearing, and asks a reconsideration of the effect of the failure of plaintiff in error, defendant below, who was an applicant for patent to a mining claim, to prove that he was a citizen.

We held that while such want of proof would warrant a judgment against him, it did not authorize a judgment in favor of the adverse claimant. In arriving at that conclusion several authorities were cited to the effect, first, that proof of citizenship, in an adverse suit, is required only to enable a party to recover a judgment in his own favor; and, second, that the absence of such proof may prevent a recovery by the one party, but does not operate to authorize a judgment, for that reason alone, in favor of his adversary. We quoted from Lindley on Mines that author's statement of the result of the decisions upon the question, and among other matters so quoted was this: "The alienage of the original locator would not avail the subsequent locator so as to permit the court to award the claim to him, for that reason, but the latter would be enabled through the patent proceedings, which are the equivalents of 'inquest of office' to have alienage established, and thus clear the records."

Referring to the remarks of Mr. Lindley, counsel for defendant in error construes the same to mean that the party opposing on alien locator must do something more than prove the alienage; and that the "something more" would be done, if he proved his own qualifications and every act of his own location in compliance with law. In view of the authorities discussed, in this connection, by Mr. Lindley, we think that counsel's contention as to the author's statement may be open to serious question. In Manuel v. Wulff, 152 U.S. 505, 38 L.Ed. 532, 14 S.Ct. 651, it was held that, although the objection of alienage was properly interposed in the adverse suit, the naturalization of the alien applicant for patent before judgment cured the infirmity. Hence, while, as Mr. Lindley asserts, a citizen may peaceably relocate a claim over that of a prior alien locator, and thus qualify himself as an adverse claimant; his relocation would be of no avail, should the alien afterward and prior to judgment in an adverse suit become a citizen by naturalization.

In Laws of Mines and Mining by Barringer & Adams, it is said at page 203, referring evidently to the case of Billings v. Smelting Co., 52 F. 250, that if the principle laid down in that case prevails, the result will be that ground located by an alien cannot be relocated until he has been deprived of his title by some act of the government, which ordinarily will not occur until there has been an application for a patent, and it becomes necessary for him to establish his right either as applicant or adverse claimant.

We are inclined, still, to the view that the observations of Mr Lindley, quoted in our former opinion as to relocation by a citizen of ground claimed by an alien, were intended to show that a citizen could by such relocation obtain a standing as adverse claimant in order to have alienage established, rather than that thereby he could secure a right to an affirmative judgment, awarding the property to him for that reason in the suit brought to adverse the right of the alien to a patent. It seems to us that the language used is not susceptible of any other reasonable construction. Moreover, is that not in line with the principle laid down in Manuel v. Wulff, supra In that case the court applies to mining claims the settled rule that until alienage has been adjudged, an alien may take and hold land by purchase. And a purchase by an alien of a mining claim was held good where naturalization occurred anterior to judgment in the adverse suit, it...