Warnekros v. Cowan

• Decision Date: 02 April 1910
• Docket Number: Civil 1104
• Parties: PAUL B. WARNEKROS, ELI BLUCHER and J. M. COLLINS, Plaintiffs and Appellants, v. THOMAS P. COWAN, Defendant and Appellee
• Court: Arizona Supreme Court

108 P. 238

13 Ariz. 42

PAUL B. WARNEKROS, ELI BLUCHER and J. M. COLLINS, Plaintiffs and Appellants, v. THOMAS P. COWAN, Defendant and Appellee

Civil No. 1104

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Second Judicial District, in and for Cochise County. Fletcher M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

Allen R. English, for Appellants.

The complaint fully complies with the requirements as laid down in the Keppler-Becker Case (Ariz.), 80 P. 334. "In the absence of proof to the contrary, it will be presumed that suit was begun in time, on an adverse claim," and that the adverse was also filed in the land office, within the sixty days allowed. Clark's Mineral Digest, p. 299, par 222; Pennsylvania Min. Co. v. Bales, 8 Colo.App 108, 70 P. 444, 22 Morr. Min. Rep. 436. And the court will take judicial knowledge of the filing mark on the complaint. Complaint states a cause of action without alleging the filing of the adverse, or that the suit was commenced in time. Rawlings v. Casey, 19 Colo.App. 152, 73 P. 1090.

Pickett & Bowman, for Appellee.

"Actions required by section 2326 of the Revised Statutes of the United States are purely statutory, and the proceedings must be conducted in accordance with the statute which authorizes them." 2 Lindley on Mines, 1st ed., 933, 934; Keeler v. Trueman, 15 Colo. 143, 25 P. 311; McGinnis v Egbert, 8 Colo. 41, 5 P. 652, 15 Morr. Min. Rep. 329; Manning v. Strehlow, 11 Colo. 451, 18 P. 625. "There must be allegations that the adverse claim was filed in time, and that the suit was begun in time." Barringer and Adams on Mines, 385; Hopkins v. Butte Copper Co., 29 Mont. 390, 74 P. 1081; Cronin v. Bear Creek Co., 3 Idaho, 614, 32 P. 204, 17 Morr. Min. Rep 548; Marshall v. Kirtley, 12 Colo. 410-416, 21 P. 492, 16 Morr. Min. Rep. 6. The demurrer was properly sustained to appellants' complaint by the trial court, for the reason that the description was fatally defective, in that it did not accurately describe the area in controversy. Smith v. Imperial Copper Co., 11 Ariz. 193, 197, 89 P. 510, 512. "As the proceedings in the land office should form the basis of the action, they should be alleged." Marshall v. Kirtley, 12 Colo. 410, 21 P. 492, 16 Morr. Min. Rep. 6.

OPINION

LEWIS, J.

-- The appellants, plaintiffs in the court below, filed their complaint, which is sufficient in the facts alleged to free it from attack, considered as a suit to quiet title to the Queen of the Hill mining claim. There, however, appears therein, in substance, the following additional allegations: That the defendant made or attempted to make a mineral location called the Sadie No. 2 lode mining claim, of a part of the said Queen of the Hill mine, and that the said Sadie No. 2 claim conflicts therewith; that the defendant on the twenty-sixth day of October, 1907, made his application for patent for the whole of the said Sadie No. 2 lode mining claim to the United States Land Office, in which he claims all of the surface within the confines of his said location and including the south part of the said Queen of the Hill mine in conflict, and the plaintiffs aver that defendant is asserting title thereto, and will receive title therefor from the government of the United States unless prevented from so doing by the judgment of this court. The defendant demurred specifically upon the ground that the complaint did not state facts sufficient to give the court jurisdiction of the subject matter of the action, in this: That the complaint does not allege that the plaintiffs, or either of them, filed in the said land office any adverse claim to the Sadie No. 2 mining claims during the sixty days period of publication of the notice of application for a patent thereto. The special demurrer was sustained, and, the plaintiffs declining to amend, judgment was entered dismissing the complaint, from which judgment the plaintiffs appealed.

The question here presented involves the necessity of examining the source of the jurisdiction of the courts of this territory in an action in aid of an adverse to an application for patent to mining ground and the sufficiency of the allegations of the complaint herein to authorize the trial court to hear and determine the cause of action set forth in the complaint. When an application is made for a patent to public land, all questions involved in the determination of the right of the applicant to such patent are cognizable by the land office. The land office is a quasi judicial tribunal, and has exclusive jurisdiction in the absence of specific provision to the contrary. Bishop of Nesqually v. Gibbon, 158 U.S. 155-167, 15 S.Ct. 779, 39 L.Ed. 931; 32 Cyc. 1000. Generally, pending final action by the land office with respect to title to public lands, neither the state nor federal courts will interfere, nor will they entertain actions relating thereto. Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U.S. 301-308, 23 S.Ct. 692, 47 L.Ed. 1064; Marquez v. Frisbee, 101 U.S. 473, 25 L.Ed. 800; U.S. v. Schurz, 102 U.S. 378-395, 26 L.Ed. 167; McHenry v. Nygaard, 72 Minn. 2, 74 N.W. 1106; Tiernan v. Miller, 69 Neb. 764, 96 N.W. 661. In certain cases, where there exists the necessity of preserving peace or of determining controversies arising out of temporary rights in public lands, courts exercise jurisdiction pending the final action of the land office. Phoenix & Eastern R.R. Co. v. Arizona & Eastern R.R. Co., 9 Ariz. 434, 84 P. 1097; Mathews v. O'Brien, 84 Minn. 505, 88 N.W. 12; Sproat v. Durland, 2 Okl. 24, 35 P. 682, 886; Wood v. Murray, 85 Iowa 505, 52 N.W. 356.

Upon the filing of an application for patent to public mineral land, the jurisdiction of the land office becomes exclusive as to all questions affecting the title to the lands therein applied for, and so remains until the final determination of the application. The exercise of its jurisdiction may be stayed only by the filing of an adverse claim as provided by section 2326 of the Revised Statutes of the United States (U.S. Comp. Stats. 1901, p. 1430). Without the filing of such adverse claim, neither the state nor federal courts will exercise jurisdiction in actions affecting the title to lands included within the application. It is by virtue of the provisions therein contained that courts assume jurisdiction of a question as to the right of possession to the ground in controversy after an application for patent is filed. Section 2326 of the Revised Statutes of the United States provides "Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature,...