16 Mont. 234 | Mont. | 1895
The defendant applied for a United States patent for certain mining premises. The plaintiff filed his adverse claim in the United States land office, and commenced this action, which is commonly known as an ‘ ‘adverse suit. ’ ’ (Davidson v. Bordeaux, 15 Mont. 245, and cases cited; Anthony v. Jillson, 83 Cal. 296.) A demurrer to plaintiff’s complaint was sustained, and judgment rendered and entered for defendant. Plaintiff appeals.
The plaintiff depended upon the location of the Yellow Jacket claim. He set out the location notice of this claim, and the affidavit verifying the same, in his complaint.
One point raised by the demurrer was that the verification of the location notice was insufficient. Our statute requires that the notice of location of a mining claim shall be on oath. (Compiled Statutes, fifth division, § 1477.) That this requirement of our statute is within the power of the state legislature was doubted in Wenner v. McNulty, 7 Mont. 30, but was
The question then presents itself, was the verification of the Yellow Jacket notice of location insufficient ? It is as follows:
‘c Territory of Montana, County of Meagher — ss.: J ohn C. O’Brien, James L. Neihart, and Samuel R. Harley, being duly and severally sworn, depose and say that they are of lawful age, and citizens of the United States; that they have heard read the above notice of location of fifteen hundred linear feet on the Yellow Jacket lode; that the description of said lode as therein given is true and correct; that they have in every respect fully complied with the requirements of chapter 6, title 32, of the Revised Statutes of the United States, and the local customs and laws regulating mining locations, and that they are three of the within-named locators. ’ ’ (Subscribed .and sworn to.)
Does this affidavit verify the notice ? Is the notice a declaratory statement upon oath ? (Compiled Statutes, fifth divison, § 1477; Metcalf v. Prescott, supra.) The notice is a declaratory statement, but the question is, do the locators, or any of them, make the statement under oath? We are of opinion that they do not. They make only one portion of it under oath, and that is that the description of the lode, as given in the notice, is Hue and correct. There is no oath that any portion of the location notice is true, except this one item, and therefore the location notice is not verified, except as to this one item, unless it can be held that the words, ‘ ‘description of the lode, ’ ’ include the whole notice. But we are of opinion that such construction of these words cannot obtain. The meaning of the words, ‘ ‘description of the lode, ’ ’ we think, is
We are therefore of opinion that the word “description,” as used in the affidavit under consideration, meant the delineation or account of the Yellow Jacket mining claim by the recital of its metes and bounds, or' courses and distances, and its geographical position. See definition from Black, Law Diet., supra.
Counsel for appellant contend for a broader definition or use
Plaintiff contends further, however, that even if he had no notice of location at all, he pleads in his complaint that he and his predecessors in interest have been in possession of the premises, and worked them as a mine, for a period equal to the statute of limitations of this state, and that, therefore, he is entitled to prevail in this action. He relies upon section 2332 of the Revised Statutes of the United States, which is as follows : £1 Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim. ’ ’
It is said in Glacier Mining Co. v. Willis, 127 U. S. 471: ‘ ‘ With reference to the third ground of the demurrer, it is only necessary to say that the complaint alleges that a valid and legal location of said tunnel was made by persons under whom the plaintiff claims, and that the plaintiff held possession of the same for more than five consecutive years prior to the ouster by the defendants, and paid all the taxes during that period legally or otherwise assessed upon said property. This, under the laws of Colorado would give the plaintiff a right to the premises in dispute superior to any other claim except that of the government. ’ ’ But these remarks are not applicable in this case. There plaintiff depended upon a £ ‘valid and legal location. ’ ’ Here plaintiff had not a valid location, as we have determined.
We are of opinion that the words ££ adverse claim ” in section 2332 are used in the same sense as they are employed throughout the whole of chapter 6, title 32, which is the min
To support our view as to the meaning of the words ‘ ‘.adverse claimant’ ’ and ‘ ‘adverse claim’ ’ we note the following language of section 2325. That section states: “If no ‘adverse claim’ shall have been filed * * * at the expiration of sixty days, it shall be assumed that the applicant is entitled to a patent, *
* * and thereafter no objection from third parties *
* * shall be heard.” Again, in section 2326, we find the following: “ Where an ‘adverse claim’ is filed * * * it shall be upon oath,” etc. Again, in the same section: “It shall be the duty of the ‘adverse claimant,’ within thirty days,” etc. Again, it is stated in the same section “that a failure on his part shall be a waiver*of his ‘adverse claim. ’ ’ ’
We must therefore conclude that the “adverse claim” mentioned in section 2332 means the land office adverse claim. Section 2332, in its order in the act, follows the provisions of law as to applying for patent and proceedings under said application, and the filing of adverse claim. The section says: “ Where such person or association * * * have held and worked their claims for a period equal to the time prescribed by the statute of limitations,” etc. We are of opinion that the words, ‘ ‘such person or association, ’ ’ etc., refer to the persons and associations which have been the subject of treatment in the preceding sections, namely, persons and associations who have complied with the terms of the law, and are applying for a patent for their mining premises. Preceding section 2332, all the details for an application for a patent and ad-versing the same have been provided for. Then comeg section 2332, and provides that if such person or association, — that is to say, such applicants for patent — have held and worked their claims for a period of the statute of limitations, such facts shall establish their right to a patent, in the absence of an
We do not think it can be properly contended that the statute means “ in the absence of an adverse claim filed within the period of the statute of limitations. ’ ’ If that construction were to obtain, it would be necessary to add words to the statute, and make it read, “in the absence of any adverse claim ’ ’ filed withim, the period of the statute of limitations. The better view, in our opinion, is that the statute means that patent shall issue to an applicant for patent who brings himself within the requirements of section 2332, if no one appears in the land office to adverse his application. It is clear that plaintiff in this action is not within the purview of section 2332.
There are other points raised on the argument, but our views upon the matters disczzssed dispose of the appeal. The demurrer was properly sustained. It is ordered that judgment be affirmed.
Affirmed-