14 Mont. 274 | Mont. | 1894
This is an action in the nature of ejectment. Plaintiffs recovered judgment. Defendants’ motion for new trial was denied. From the order and the judgment defendants appeal. The subject of the action is described as lots 5, 6, 7, 8, and 9, in block 5, of the townsite of the town of Neihart. These lots are a portion of the surface of the Keegan mining claim. Plaintiffs became owners of this mining claim by mesne conveyance from the locators on June 30, 1884. On July 27, 1887, plaintiffs were granted a patent by the
There are two points which are urged by appellants, and which we will examine. This action was commenced June 27, 1891. On the trial the.defendants offered to prove facts tending to show an adverse possession of the premises in controversy for a period sufficiently long to bar the action, but a portion of such period was necessarily prior to July 27, 1887, the date of the issuance of the United States patent for the Keegan mining claim. The district court held that such testimony, showing adverse possession prior to the issuance of patent, was not competent, for the reason that the statute of limitations did not commence to run against a mining claim until the issuance of United States patent therefor. This ruling is assigned as error. The district court in this respect followed exactly the decision in King v. Thomas, 6 Mont. 409, in which case precisely the same point was decided, and in the same manner as in the case at bar. In fact, on this appeal we must, as to this point, affirm the district court, or we must directly overrule the doctrine of King v. Thomas, 6 Mont. 409. Indeed, the latter is what appellants’ counsel, in a very able brief, ask us to do. But to reconsider King v. Thomas, 6 Moat. 409, would be to disturb a rule of decision and a principle as to titles of real property which are now of seven years’ standing. The case of King v. Thomas, 6 Mont. 409, was decided in the year 1887. It is a matter of history in this state and in this court that at that time very many cases were tried and pending in which the plaintiffs were grantees in United States patents for mining claims, and the defendants were occupying portions of the surface of such claims for town-site purposes. There was great contention at that time in such cases as to how the statute of limitations should be applied as against lands held as mining claims; that is, whether the statute should begin to run at the date of the location of the claim, or at the date of the issuance of the final receipt from the land-office, or at the date of the issuance of patent. King v. Thomas, 6 Mont. 409, settled this contention, and announced the rule that has now been undisturbed for seven years. It must be that many contentions have been settled under this
The appellants urge a second point as follows: They pleaded and offered testimony on what they insist is an equitable defense. The offered testimony is as follows: In the spring of 1882 about fifteen or twenty people were in the gulch where the town of Neihart. now is; on the 6th of April of that year a meeting of those citizens was held for the purpose of laying off a townsite; the Keegan was then a located mining claim; one of its owners, Paul McCure, attended the citizens’ meeting, and took part in the proceedings. It was resolved at that meeting that the surface ground in the gulch be laid out for townsite purposes, and the town was named Neihart. From the minutes of that meeting, which were offered in evidence, it appears that the boundaries of said town were fixed; a recorder was appointed to' lay out the town and keep a book of records of lots; the size of the lots and widths of the streets were defined, and it was resolved that one person could “ take up” two lots only. These lots were “ taken up,” as it was called, by the recorder making an entry in his book, and transfers of claims seem to have been made in about the same way. In pursuance to the proceedings of this citizens’ meeting, James L. Neihart filed upon, or “took up,” the ground which is now in controversy. He sold to one Thompson, and Thompson, on August 3, 1884, sold the premises to the defendants, who have put valuable improvements on the same. The owners of the Keegan claim were aware of the proceedings of the citizens’ meeting, and one of them, Sutton, took up two town lots in pursuance to the proceedings of said meeting.
The defendants submitted to the court an elaborate set of instructions. In view of the action taken by the court, and
We must here turn aside from this alleged equitable defense, and examine for a moment a question of practice as to the action of the court just described. Defendants contend that the action of the court in so peremptorily instructing the jury was, in effect, a nonsuit of defendants as to the equitable defense, but that no motion for a nonsuit was made, and that therefore, although the effect of the action was a nonsuit, yet the defendants were not in a position to apply the rules governing a nonsuit; that is, defendants contend that, instead of nonsuiting their equitable defense, the court took the verdict of the jury thereupon. But in the view that we have heretofore taken of the nature of a direction by the court to find a verdict, we are of opinion that defendants were not injured by the action of the court. When upon a trial the court peremptorily directs a jury to find for the defendant, this is in effect granting a nonsuit against plaintiff, and must be treated as such. (McKay v. Montana Union Ry. Co., 13 Mont. 15; also Creek v. McManus, 13 Mont. 152.) There seems to be no reason why the ruling of a nonsuit against plaintiff should not be applied to what is in effect a nonsuit of defendants’ defense. Therefore, in this case, when the court peremptorily directed the jury to find for the plaintiff, it practically nonsuited defendants as to their equitable defense. Therefore the rules and principles applicable to a nonsuit should be applied to defendants’ situation in this case. Therefore, whatever defendants’ testimony tends to prove as to the equitable defense will be taken as proved, and as the fact.
Therefore, the consideration now before us is whether the citizens’ meeting, and the taking up and transfer of lots, and all the other facts detailed, constitute an equitable defense to this action of ejectment. This contention, like the first point considered in this case, we are of opinion is at rest in this state.
“Matter is alleged in the answer as an estoppel, and on the trial the defendants sought to prove that the former owners of the Smokehouse claim, and while so the owners thereof, and knowing that the said claim would be in the proposed boundaries of the townsite of Butte, joined others in petitioning the probate judge to enter said townsite for a patent, and in accordance therewith the town site was patented, and the owners of the Smokehouse claim accepted from the probate judge deeds to lots on said claim; and that these owners declared that they would not interpose or assert their title to this mining claim, or any rights thereunder, as against the townsite patent, or those claiming under the same. This testimony was rejected, and error assigned accordingly.
“All these matters alleged as an estoppel took place and were in existence before the time that respondents made their application for a patent to the Smokehouse claim. If they were estopped at all, they were estopped from applying for or-receiving a patent. Subsequent to these alleged acts and! declarations, the owners of the Smokehouse claim took the-necessary steps for procuring a patent thereto. In order to do* so, they filed their application, as the law required, in the proper land-office, showing acompliance with the laws, together with a plat and the field vnotes of their claim, made by and under the direction of the surveyor general of the United States for Montana, showing the boundaries of their claim, and they also, previously to the filing of the application, posted a copy of the plat, with a notice of their intended application, in a conspicuous place on the claim. When such application was filed in the land-office, the register published a notice that such application had been made, for the period of sixty days, in a newspaper nearest to such claim; and also posted a notice in his office for the same period. It is a conclusion from the issuing of the patent that all these requirements were complied ■with in making their application. (Steel v. Smelting Co., 106 U. S. 447.)
“The object of this exceeding care and publicity in applying for a for*290 adverse claimants that such application has been made, in order to give them an opportunity to contest in thehnanner provided by law, and before a court of competent jurisdiction, the applicant’s right to a patent for the ground he claims. The conclusiveness of the title by patent grows out of the fact that this opportunity has been given to all adverse claimants to contest the right of the patentee. The theory of the law is that, unless the adverse claimant sets up his title, and controverts the right of the applicant for a patent during the period prescribed for this purpose, he thereby loses his right or title, whatever it may be, and cannot thereafter assert the same. Therefore, if the respondents were not entitled to a patent for the Smokehouse claim, for the reason that they were estopped from applying for and demanding the same, an adverse claim by appellants would have made this fact to appear, and defeated their application.”
There is a parallel between the facts offered as a defense in Talbott v. King, 6 Mont. 76, and the facts so offered in the case at bar, except that in Talbott v. King it would seem that a much stronger showing was offered by defendants than was shown in the case at bar. Here it is claimed that the mine-owners devoted and donated the surface of the Keegan claim to townsite purposes, by reason of the fact that one of them attended and participated in the citizens’ meeting described above. In Talbott v. King, 6 Mont. 76, the mine-owners petitioned the probate judge, an officer recognized by the laws of the United States as the proper one for such purpose, to enter as a townsite the surface ground of their mining claim, and they thus helped to set in motion the governmental machinery which finally turned out a United States patent for the town-site.
The result of the action of the citizens of Neihart, including the mine owners, was not to obtain any United States title to a townsite, but simply to create a recording office, in which persons could, as it was said, “take up” town lots. On the other hand, the result of the action of the citizens of Butte, including mine-owners, was the issuance of a United States patent. The owners of the Keegan claim “took up” two town lots, in pursuance to the proceedings of the citizens’ meeting.
It is said in Talbott v. King, 6 Mont. 76, that all the matters set up took place and Avere in existence before the time that the Smokehouse claimants applied for their mining title' Such is true also as to the Keegan claim herein. It is said of Talbott v. King, 6 Mont. 76, if the Smokehouse claimants were estopped at all, they were estopped from applying for, or from receiving, a patent. Such would also be true as to the Keegan claimants.
We need not compareany further the facts in the Smokehouse case and those in the case at bar. We think it is perfectly apparent that the Smokehouse case decides the appellants’ contention here adversely to them. If the facts offered in the Smokehouse case were held not to constitute a defense, then, a fortiori, the less forceful facts offered in the case at bar were not a defense, even when their truth is fully conceded.
The order denying a new trial and the judgment are affirmed.
Affirmed.
