152 P. 208 | Idaho | 1915
This is an action to quiet title to a certain mining claim known as the “Midnight” claim, situated in Centerville and Pioneerville Mining Districts, Boise county.
A demurrer was sustained to the amended complaint and the plaintiffs declined to plead further, and thereupon judgment of dismissal was entered. This appeal is from that judgment.
The following facts appear from the complaint.
The plaintiffs had employed William A. Sample, Esq., as their attorney, to represent them in their adverse claim, and in their said action to quiet title thereto. Sample died on or about the 25th of December, 1912, but during his life he informed the plaintiffs that their said case in the land office and in the federal court had been compromised in such a way that the said “Dessie D” group of claims would go to patent, except or excluding the “Midnight” claim, and the plaintiffs would retain their ownership of said ground.
Thereafter and during the month of March, 1914, a receiver’s receipt was issued to the defendants which would entitle them to a United States patent to the whole of said “Dessie D” group of placer claims, including said “Midnight” claim. Upon being informed of those facts, -plaintiffs at once employed O. R. Woods, Esq., an attorney at law, to file anew their protest and adverse claim against the issuing of a patent to said group of claims so far as the same conflicted with plaintiffs’ claim. Thereupon said attorney made
The sustaining of said demurrer and entering judgment of dismissal are assigned as error.
This is not a .case where the plaintiffs are seeking to acquire a patent from the United States to the mining ground in controversy under their adverse claim or protest. The defendants only are applicants for a patent — not the plaintiffs. The plaintiffs claim title and right to the possession of this land as against the respondents by virtue of their locations and by virtue of being in possession and of working said claims for the last five years next before the commencement of this action, alleging that their possession has been actual, quiet, peaceable, adverse, visible, notorious, hostile, exclusive and continuous.
Respondents contend that this is an adverse suit brought under see. 2326 of the Rev. Stats, of the United States, and is governed by the law applicable to such suits, and that by the allegations of the complaint the plaintiffs have elected to try this case as an adverse suit under secs. 2325 and 2326, Rev. Stats, of the United States, and that that was the theory upon which the case was tried out on demurrer in the district court.
We cannot agree with that contention, although the theory above suggested may have been the theory upon which the demurrer was determined. The suit upon the adverse claim, which was begun and transferred to the United States court, was dismissed upon an alleged agreement that the applicants
Said letter is made a part of the complaint, and clearly shows that the commissioner of the general land office would consider a protest against the issuance of a patent to the defendants for said “Midnight” placer mining ground.
The adverse suit which was brought by the plaintiffs had already been dismissed, according to the allegations of the complaint; because of the agreement and compromise made between the applicants for the defendant and attorney Sample for the plaintiffs. The time having already passed for beginning another suit on an adverse claim, the plaintiffs
Counsel for defendants also contend that the amended complaint shows that this action was not commenced in the time-required by the laws of the United States. They are right in that contention, but are entirely wrong in their contention that this is a suit on an adverse claim and that it must be brought within the time provided by the laws of the United States. A person who is entitled under the laws of the United States to the possession of mining ground by reason of his-having complied with the statute may defend his possession and have it protected in an action to quiet such right in him. He does not need to be in a position to acquire a patent from-the United States for such ground. He may protect his possession and right from the attempts of others to procure a patent from the United States for land of which he is-legally possessed and make no application for a patent himself in such proceedings.
Under the provisions of sec. 1, art. 5, of the state constitution, there is but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, and under the provisions of see. 4168, Rev. Codes, the complaint must inter alia contain a statement of the facts-constituting the cause of action in ordinary and concise language. It was held by this court in Rauh v. Oliver, 10 Ida. 3, 77 Pac. 20, that the technicalities of pleading have-been dispensed with by the code, and the plaintiff need only state his cause of action in ordinary and concise language,, whether it be in assumpsit, trespass or ejectment, without regard to the ancient forms of pleadings, and that the plaintiff can be sent out of court only when, upon the facts pleaded, he is entitled to no relief either at law or equity.
In Anderson v. War Eagle Con. Min. Co., 8 Ida. 789, 72 Pac. 671, this court held that no particular form of complaint was required; that the complaint must contain a statement of the facts constituting the cause of action, in ordinary andi
We find many allegations in the complaint not necessary to a complaint in an action to quiet title, but the complaint as a whole contains the allegations necessary to a complaint in an action to quiet title. We recognize the rule that a general demurrer only admits matters properly plead, but if a complaint contains many matters that are not essential to it but contains sufficient to state a cause of action, it is error to sustain a general demurrer to it.
Beading the complaint in the light of the provisions of the constitution and statute above cited, if the plaintiffs can prove those allegations on the trial, they will certainly be entitled to a judgment protecting them in the possession of said mining ground as against the defendants.
Under this view of the matter, the court erred in sustaining said demurrer and the judgment entered must be reversed and the cause remanded, with direction to the court to overrule the demurrer and to permit the defendants to answer. Costs are awarded to the appellants.