14 Colo. 451 | Colo. | 1890
’ By the record m this case it appears that the appellee, defendant below, on the 26th day of October, 1885, filed its application for a United States patent for a certain mining claim, particularly described in the complaint, called “No Name Lode,” under the provisions of sections 2325, 2326, Revised Statutes of the United States; that notice of the application, by direction of the register and receiver of the United States land-office at Durango, Colorado, was published in the Animas Forks Pioneer, and that the notice first appeared in the issue of said newspaper on the 31st day of October, 1885, and appeared in each and every weekly issue of said newspaper thereafter, up to and including
The cause was tried to the court, and the court found that the adverse claim was not filed within the time allowed by law for filing adverse claims, and therefore dismissed the action, at plaintiffs’ cost. To reverse this action this appeal is prosecuted.
The question for our determination is, did the plaintiffs file their adverse claim within the time allowed by law? if not, can they maintain their action? In the brief and argument appellants take the position that, whether an adverse claim be filed in the land-office or not, still they are entitled to maintain their suit under section 257 of the Civil Code. The complaint in this case clearly shows the cause of action which the pleader intended to state. No one can read it and fail to conclude that the suit was brought upon an adverse filing, to contest defendant’s application for patent to the premises in controversy, and that the purpose of the pleading was to put in issue and try the questions which by section 2326, Revised Statutes of the United States, are submitted to courts for adjudication. The language of the complaint is that they “were the owners of and in possession of certain mining premises situate, lying and being in Eureka mining district in the county of San Juan, Colorado; * * * that the said premises comprise all of that certain lode mining claim that is known and recorded as the ‘ Nameless Lode; ’ that the defendant claims an estate or interest in and to said premises, and all thereof, adverse to that of plaintiffs; that defendant has made application at the United States land-office at Durango, Colorado, for a patent for all of said premises, claiming in said application to be the owner of said
The above is all of the complaint necessary for us to recite to indicate unmistakably'the purpose and object of the action. To permit the plaintiff, after the trial of the cause, to assume altogether another and a different object, would be in violation of every rule of pleading. The allegations in the complaint determine the character and object of the action. Becker v. Pugh, 9 Colo. 589; Mining Co. v. Kirtley, 12 Colo. 410.
The plaintiffs having elected to proceed under the provisions of the section above referred to, the next and only remaining inquiry is, did they bring themselves within the provisions of those sections? It is admitted by the complaint and in the argument of appellants that the appellee made its application for the patent on the 26th day of October, 1885, and that, pursuant to the order of the register and receiver of the United States land-office, notice of this application was published on the 31st day of October, 1885, and that the appellants did not locate the claim and file the adverse until the 1st day of January, 1886.
Section 2325 provides that, upon filing an application for ,a patent for land, the register of the land-office ‘ ‘ shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim, and he shall also post such notice in his office for the same period of time. At the expiration of the sixty days of publication the claimant shall file his affidavit showing that the
In Wight v. Dubois, 21 Fed. Rep. 693, Judge Brewer, adopting the construction of these provisions announced by Judge Hallett in the same case, sums up in brief his conclusions (page 696), as follows: “(1) The government, as a land-owner, offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between the owner and the purchaser alone, and with which no stranger to the title can interfere. (2) Publication of notice is process bringing all adverse claimants into court, and, if no adverse claims are presented, it is conclusively presumed that none exist, and that no third parties have any rights or equities in the land. (3) Thereafter the only right or privilege remaining to any third parties is that of protest or objection filed with the land department, and cognizable onty there; if sustained by the department, the proceedings had by the applicant aré set aside; if overruled, the protestant or objector is without further right or remedy.”
Accepting the above conclusions of the learned judge as being the correct interpretation of the statute, it follows that, unless the appellants have brought themselves within the provisions of the law by filing their adverse claim within the sixty days provided for the publication of notice, the action of the court in dismissing the comnlaint must be sustained.
It is contended by appellants that because this notice
We are not without authority in our own court to sup
In the Eureka Case, 4 Sawy. 302, Justice Field uses this language: “When one is seeking a patent for his mining location, and gives proper notice of the fact as therein prescribed, any other claimant of an unpatented
Appellants cite in support of their position Decker v. Myles, 4 Colo. 558. The conclusion of the court in that case was based upon a section of law which required a notice tó be published once a week for three consecutive weeks; consequently it is not in point. Other cases cited are not upon similar provisions; therefore do not apply. The number of publications is not provided for by the provisions of the United States law. By no system of computation can we arrive at any other conclusion than that the full time required by the statute had expired before plaintiff’s adverse claim was filed. “A distinction, however, is made between statutes requiring publication for a certain period of time in what manner soever such period is denominated, and those requiring the insertion of the notice a certain number of times in a newspaper, where the continuance of the publication will be determined by the number of regular issues within a given time.” Wade, Notice, § 1077.
The time for filing an adverse can no more be extended than can be the time for commencing action after filing such adverse, and it cannot be said that the plat and notice required to be posted on the claim must remain so posted for a longer period than sixty days. The publication is made by posting a notice in the office of the register and receiver, upon the claim, and publishing in a newspaper for the period of sixty days. Failure to do either would not be a compliance with the statute, but, as in this case, doing all in the manner directed will defeat an adverse claimant who fails to file the adverse within the period of sixty days. Our conclusion, therefore, is that, the plaintiffs having failed to file their adverse in the United States land-office within the time
The judgment should be affirmed.
Pattison and Reed, CO., concur.
Por the reasons stated in the foregoing opinion the judgment is affirmed.
Affirmed.
having presided at the trial below, did not participate in this decision.