Thornton v. Kaufman

• Decision Date: 14 February 1907
• Citation: 88 P. 796,35 Mont. 181
• Parties: THORNTON et al. v. KAUFMAN.
• Court: Montana Supreme Court

88 P. 796

35 Mont. 181

THORNTON et al. v. KAUFMAN.

Supreme Court of Montana

February 14, 1907

Appeal from District Court, Silver Bow County; Geo M. Bourquin Judge.

Action by W. D. Thornton and others against Louis Kaufman. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

E. B Howell and John J. McHatton, for appellant.

Chas Mattison and M. J. Cavanaugh, for respondents.

BRANTLY C.J.

This action was brought to determine an adverse claim in patent proceedings under section 2326 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 1430]; the plaintiffs claiming under a lode location named the "Vigilant," and the defendant under a lode location named the "Little Spring." The district court found for the plaintiffs. The defendant has appealed from the judgment. He relies upon several alleged errors, the principal one of which is that the complaint does not state facts to constitute a cause of action, in that it is not alleged therein that the adverse claim was filed in the proper land office within the 60 days allowed by the statute or that the action was brought within the 30 days after the filing of the adverse claim.

In the case of Mattingly v. Lewisohn, 8 Mont. 259, 19 P 310, decided by the territorial Supreme Court in 1888, it was first declared in this jurisdiction that the allegations referred to are substantial facts, which must be alleged by the plaintiff in order to warrant a recovery. The theory entertained by that court was that, whether the action assumed the form of a suit in ejectment or to quiet title, the purpose was to determine which of the claimants was entitled to a patent, and, in order to make the judgment effective, it must be based upon a complaint the allegations of which would show facts justifying the entertainment of the action and the rendition of the particular judgment or decree. This rule, it was also thought, would promote harmony of action between the local courts and the officers of the United States Land Department. Hopkins v. Butte Copper Co., 29 Mont. 390, 74 P. 1081, and cases cited. The rule thus established has been uniformly approved and followed by this court, as is shown by the following cases: McKay v. McDougal, 19 Mont. 488, 48 P. 988; Murray v. Polglase, 23 Mont. 401, 59 P. 439; Hopkins v. Butte Copper Co., supra. So well recognized was the rule that, upon the adoption of the Code of Civil Procedure in 1895, the Legislature recognized the distinction between ordinary actions to determine adverse claims, authorized by section 1310 of the Code of Civil Procedure, which had theretofore been in force in this jurisdiction, and adverse claims to determine the right of the contestants to a patent, by the adoption of section 1322 of the same Code, which applies especially to adverse claims in patent proceedings, and seems to contemplate a special action, equitable in its nature. This section, however, has not changed the rule of pleading established by the cases referred to (Hopkins v. Butte Copper Co., supra), and the fact of the filing of the claim in the land office within the prescribed time and the bringing of the action within the prescribed limitation must be alleged, or the complaint will not support the judgment. We are aware of the fact that in other jurisdictions, as Colorado and Arizona, a different rule prevails; yet we do not feel inclined at this late day to overturn the established practice by overruling the cases decided by our...