8 Mont. 259 | Mont. | 1888
The respondents in this court (the plaintiffs in the District Court) filed their complaint, in which they alleged that they were the owners of three-fifths undivided interest of the Great Eastern Lode Mining Claim, and that two of the appellants were the owners of the other two fifths of said claim. The complaint also alleges the citizenship of the plaintiffs, and
The complaint shows that the action is a statutory one, intended to be brought under section 2326 of the Revised Statutes of the United States; otherwise, the allegations that the defendants have filed application for patent, and if they are permitted to proceed (with the application) it will render plaintiffs’ title valueless, are without force or meaning. Sections 2325 and 2326 of the Revised Statutes of the United States point out clearly the steps to be taken by an applicant for patent for mineral lands, and by an adverse claimant who resists such application. The first section limits the time for filing an adverse claim to sixty days during the period of publication, and, upon a failure to file an adverse claim within that time, declares that “ it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and that thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.” Section 2326 requires the person or persons filing an adverse claim within thirty days thereafter, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and a failure to do so shall be a waiver of the adverse claim. By both these sections the rights of an adverse claimant are forfeited or lost upon a failure to avail himself of the remedy given him by the statute. If he fails to file the adverse claim in the
We are confirmed in this view for the additional reason that a contrary practice to the one here laid down would or might lead to a conflict of action between the officers of the land department and the courts, in suits of this character. The law makes it the duty of the agents of the land department to stay proceedings, on an application for a mineral patent, only when an adverse claim is filed within sixty days of the publication of notice of application for patent; and when this is not done, the agents of that department would doubtless consider it their duty to issue a patent to the applicant. This might be done while an action for the same premises between different claimants was pending and undetermined in court.
The record and brief of appellants (the only brief on file) suggest other errors, on overruling and striking out evidence offered by the plaintiff on the trial, but a majority of the court think it unnecessary to consider them, as all concur in the opinion that the cause must be reversed for overruling the demurrer to the complaint. Cause reversed and remanded.
Judgment reversed.