Willitt v. Baker

• Decision Date: 10 December 1904
• Citation: 133 F. 937
• Parties: WILLITT v. BAKER.
• Court: U.S. District Court — Western District of Arkansas

133 F. 937

WILLITT v. BAKER.

United States Circuit Court, W.D. Arkansas, Harrison Division.

December 10, 1904

S. W Woods, for plaintiff.

J. C Floyd, for defendant.

ROGERS District Judge.

The bill of complaint in this case was filed in this court November 26, 1902, and process issued on that day. Service was had January 1, 1903, and the answer was filed two days later. Thereafter the rules of practice obtaining in this court were ignored, and all that has been done was done by consent of counsel for the parties. At the trial all questions of irregularity were expressly waived in open court, and the whole case, as prepared, was argued and submitted on the merits. I shall treat the case in that way.

The plaintiff alleges that on the 1st day of January, 1901, the west half of the northwest quarter of section 29, township 17 north, range 14 west, situate in the Marion county mining district, county of Marion and state of Arkansas, was a part of the vacant, unappropriated public domain, subject to location and appropriation as a placer mining claim, and on said day William H. Bradley, C. C. Clendenin, Fred B Sanders, H. Shelden, F. p. Clendenin, Geo. L. Cornell, C. W Darling, and the plaintiff, R. W. Willitt, all being citizens of the United States, and having made a discovery of mineral on said land, entered thereupon in compliance with the mining laws of the United States, the laws of the state of Arkansas, and the rules and regulations of the Marion county mining district, and located said land as a placer mining claim, by posting a placer mining location thereon, and by filing a true copy of the same for record in the recorder's office of Marion county, Ark., where the same now appears of record, and makes a copy of said notice a part of the complaint, marked 'Exhibit A.' By proper allegations in the bill it is made to appear that before it was filed all such rights as were acquired by all of said locators, as hereinbefore stated, became vested in the plaintiff, R. W. Willitt, and copies of the mesne conveyances executed by them to said Willitt are made exhibits to the bill. It is then alleged that, by virtue of said location and mesne conveyances, the plaintiff is the owner and entitled to the possessory right to said land, and that he and those under whom he holds have had the quiet, open, and peaceable possession of said land since the date of said location. It is then alleged that the defendant, E. C. Baker, made mineral application No. 559 for a United States patent for said land at the land office in Harrison, Ark., and published his notice thereof on the 28th day of August, 1902, and during the 60 days of publication of said notice that R. W. Willitt and his grantors above named filed their adverse claim No. 61 against said mineral application No. 559, and paid the legal fee therefor, and that said application No. 559 was on the 27th day of October, 1902, suspended, and a receiver's receipt issued thereon, a copy of which receipt is attached to, and made a part of, the complaint.

In a second paragraph of the bill the plaintiff alleges that on the 1st day of January, 1901, the west half of the northwest quarter and the east half of the northwest quarter of section 29, township 17 north, range 14 west, was a part of the vacant and unappropriated public domain, and subject to location and appropriation as a placer mining claim, and on said date William M. Willitt, C. C. Clendenin, Grant C. Stebbins, William H. Bradley, Fred B. Sanders, William Towers, C. W. Darling, and the plaintiff, R. W. Willitt, all being citizens of the United States, having made a discovery of mineral thereon, entered upon said land in compliance with the mining laws of the United States, the laws of the state of Arkansas, and the local rules and regulations of the Marion county mining district, and located said land as a placer mining claim by posting a placer mining location notice thereon, and by filing a true copy of the same in the recorder's office of said Marion county, where it now appears of record, and attaches a copy thereof to the complaint as an exhibit. By appropriate allegation it is made to appear in the bill that, before it was filed, all such rights as the above-named locators acquired in said lands by virtue of the location hereinbefore stated became vested in the complainant in this suit. It is then alleged that, by virtue of said location and mesne conveyances, the plaintiff is the owner of, and entitled to the possessory right to, said land, and that he, and those under whom he holds, have held the quiet, open, and peaceable possession of said land since the date of said location, and that said last-described lands were also included in a part of said mineral application No. 559 of said defendant, E. C. Baker, and that said plaintiff, R. W. Willitt, and his above-named grantors, at the same time they filed adverse claim No. 61, also filed adverse claim No. 62, also against said mineral application No. 559, and paid the legal fee therefor, and said adverse claim prevailed, and said application was on the said 27th of October, 1902, suspended, and a receiver's receipt issued for said filing fee, a copy of which is attached to the complaint. The bill then alleges that the defendant, Baker, does not hold or own any right, title, or interest in said lands, and that he is not entitled to the United States patent therefor, and states that the location under which the defendant claims title is null and void, and that his application based thereon is fraudulent and constitutes a cloud on plaintiff's title. Plaintiff further states that said lands are wild and unimproved, and are worth the sum of $3,000; that the plaintiff is a citizen of the state of Illinois, and Baker is a citizen of the state of Arkansas-- and prays for a decree declaring that he is the owner of said mining claim, and the possessory right thereto; that said location under which defendant claims is null and void; and that said mineral application No. 559 be canceled, and that he have his costs and all further proper relief.

On the 10th of October, 1904, plaintiff, by consent, filed a supplemental complaint, in which he alleges that for the purpose of perfecting his possessory title to the first-described tract of land under his first location, as stated in his original complaint, on the 11th of May, 1904, he caused a location notice, in amendment of the said original location notice, describing his first-named tract of land by blazed boundary lines, and by stakes set for the corners thereof, and further described the land by measurement of the boundary lines, and caused the names of the said original locators to be posted in a conspicuous place on the said land, in the presence of two witnesses, who signed the same as such, and caused a copy of said amended notice to be filed in the office of the recorder of Marion county on the 7th of May, 1904, where the same is not recorded, all of which is made to appear by reference to a copy of the location notice filed with the amended petition. He further alleges that, for the purpose of perfecting his possessory title to the second tracts of land described in his complaint under his said mining location made on the 1st of January, 1901, on the 12th of May, 1904, he caused a location notice in amendment of the said original location notice, describing the said land by blazed boundary lines, and by stakes set for the corners thereof, and further described the land by measurement of the said boundary lines, and caused the names of the said original locators to be posted in a conspicuous place on the said land in the presence of two witnesses, who signed the same as such, and also caused a copy of the said amended location notice to be filed for record in the office of the recorder of said Marion county on the 17th of May, 1904, where the same now appears of record, all of which will appear more fully by reference to a copy attached to the complaint, and made a part thereof.

On the 5th of January, 1903, the defendant filed his answer, paragraph 1 of which is a special plea to the jurisdiction of the court. It may be remarked, in passing, that the plea is not sworn to, nor does it contain the certificate of counsel, as required by equity rule 31 of the Supreme Court of the United States. In his special plea the defendant alleges that he made mineral application 559 for all of the land described in the complaint, and that on the 27th of October, 1902, R. W. Willitt, William M. Willitt, Grant C. Stebbins, William H. Bradley, Fred B. Sanders, William Towers, C. W. Darling, and C. C. Clendenin filed their adverse claim No. 62 against his said mineral application, and that the said Fred B. Sanders and C. C. Clendenin were at the time of filing said adverse claim, and now are, residents of the state of Arkansas, and that the transfers of said interests in said land under the mining location relied on by the said plaintiff in this controversy, to the plaintiff, were not made for the purpose of parting with their interests in said land under said location, but, as defendant believes and avers, for the purpose of giving the federal court jurisdiction in this case; and the defendant further avers that the said R. W. Willitt now holds the interest transferred by C. C. Clendenin to Fred B. Sanders in trust for them, for their use and benefit, and they are interested in this controversy, and, being residents of this state, for this reason this court is without jurisdiction to try this case, wherefore he prays that the same be tried, and that the cause be dismissed.

In the second paragraph defendant denies that on the 1st of January 1901, the land described in paragraph 1 of the complaint was a part of the vacant, unappropriated...