198 P. 1100 | Mont. | 1921
delivered the opinion of the court.
This action was brought in pursuance of section 2326 of the Revised Statutes of the United States (U. S. Comp. Stats., sec. 4623), to determine an adverse claim to the Royal Dixie
The pleading is very voluminous. It alleges in detail the several steps taken by plaintiff in making location of his claims. It then sets forth the facts upon which defendants predicate their claim, and proceeds to allege the conditions existing at the time their locations were made, for the purpose of impeaching their validity, and thus to make it manifest that their claim of title is without foundation. The foliowing statement will be sufficient to present the questions submitted for decision:
The Royal Dixie and the Dixie Extension locations were made by plaintiff on April 21 and May 8, 1917, respectively. Amendments of both of these were made on July 26, 1917. Defendants base their claim upon 'three conflicting locations, designated as Sutter No. 1, No. 2 and’ No. 3. No. 1 was located on May 15, and the others on March 15 and 22, 1916, respectively. The two Sutters and Noble were the locators. The claims of both plaintiff and defendants are relocations of ground which had theretofore been substantially covered by claims known as the Dixie and Royal, located by one Henry Nietert on June 5 and October 4, 1909, respectively. These had been represented for each year up to and including the year 1915. On July 14, 1916, Nietert conveyed an undivided nine-tenths interest in them to the defendants, the two Sutters and C. B. Noble. On September 12, 1916, he conveyed the
and 5, 6, 7, 8; the Sutter claims by the capital letters A, B, C, D ; B, E, F, D and Gf, H, I, J; and the Royal Dixie and Dixie Extension by the small letters a, b, c, d and e, d, e, f. The point of discovery on the Sutter No. 1 is some distance to the west of the line “B D.” This claim is therefore not involved in this controversy, except to the extent of the small area included in the triangle which has its base at “a.” The points at which the discoveries of the Sutter No. 2 and No. 3 were made are within tlie area covered by the Royal Dixie and the Dixie Extension, though they are not indicated on the diagram.
To show the invalidity of defendants’ locations, the plaintiff alleges that, in making the locations of the Royal and the Dixie, Nietert fully complied with the laws of the United States and the state of Montana relating to discovery, marking the boundaries, doing the preliminary work, and the making and recording of the certificates of location; that he thus became entitled to the possession of the ground covered by them, and thereafter continued to be entitled to the possession by doing, or causing to be done, the annual assessment work
The judgment is reversed and the cause is remanded to the district court, with directions to set aside the judgment and overrule the demurrer.
Reversed and remanded.
Rehearing denied June 20, 1921.