119 P. 785 | Mont. | 1911
delivered the opinion of the court.
On March 1, 1899, the defendant, Kaufman, made application to the local land office for a patent to his Little Spring quartz lode mining claim. During the period of publication, an adverse claim, by Thornton and others, was presented and allowed, and suit commenced within thirty days (in May, 1899). Proceedings in the court were carried on for several years. On January 7, 1910, this court rendered its final decision (Thornton v. Kaufman, 40 Mont. 282, 135 Am. St. Rep. 618, 106 Pac. 361); on February 4 the remittitur issued, but was not filed in the district court until December 3, 1910. On January 24, 1911, this action was commenced. In the complaint the plaintiffs set forth the foregoing history, and allege that defendant, Kaufman, failed to do any annual representation work during 1903, 1904, or 1909; that, on January 8, 1910, they relocated the ground as the Fair Trial quartz lode mining claim; and that they have ever since been in the peaceful possession of the same. They allege that the patent proceedings are still pending in the local land office; that Kaufman has not presented) to the local land office a copy of the judgment in Thornton v. Kaufman, or paid to the land office the purchase price of the ground, or received a receiver’s receipt, but that he is about to proceed to secure a patent to the ground in controversy. The prayer is that the plaintiffs’ title be quieted as against Kaufman, and for an injunction, restraining him from prosecuting the patent proceedings. A temporary injunction was issued. Thereafter, on February 16, 1911, defendant appeared and presented a demurrer
But a single question is presented for our determination, viz.: Has the district court of Silver Bow county jurisdiction to hear and determine the questions raised by the complaint! Appellant insists that these questions are exclusively for the determination of the Land Department, and this assertion is predicated upon the failure of these plaintiffs to adverse Kaufman’s application for patent. However, a reference to the facts stated above discloses that plaintiffs’ right to or interest in the property was not initiated until more than ten years after the period of publication of Kaufman’s notice of application for patent expired. During the period of publication, therefore, these plaintiffs did not have any right upon which to base an adverse claim. They could not anticipate that such right would thereafter arise, and even if they could, such contemplated right would not give them standing as adverse claimants. In Enterprise Mining Co. v. Rico-Aspen Min. Co., 167 U. S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96, the court said: “The obvious contemplation of the law in respect to these adverse proceedings is that there shall be a present, tangible and certain right, and not a mere possibility.” If, then, it is only a present, certain and tangible right which justifies an adverse claim, under section 2325, United States Revised Statutes (U. S. Comp. Stats. 1901, p. 1429), clearly these plaintiffs could not bring themselves within the provisions of the law applicable to adverse claimants.
That neither the pendency of the proceedings for patent before the land office, nor the adverse suit by Thornton and others, relieved Kaufman from the necessity of doing the annual representation work upon his Little Spring claim is settled beyond
It is alleged in the complaint, and for the purposes of this appeal will be treated as true, that Kaufman did not do any representation work at all during 1909. Under such circumstances, the ground was open to relocation, and plaintiffs, having relocated it by complying with the law, acquired the right to the peaceable possession of the ground, and to patent, if they follow up their claim, by complying with the law hereafter.
Appellant bases his claim that this action will not lie, upon the following provision of section 2325, above: “If no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication, 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.” Clearly this section refers
But what shall be said with reference to the adverse ■ claim which arises after the period of publication has expired? It is then too late to present to the land office an adverse claim. Counsel for appellant suggest' that the only remedy available to
If the Land Department had jurisdiction over conflicting claims between private individuals, and the machinery for determining such claims, there would never have been any occasion for referring adverse claims to the courts for adjudication. It is only because the Land Department cannot determine such claims that the aid of the courts is invoked. The Land Department has held uniformly that questions arising over the failure of an entryman to do the annual representation work, or the relocation of his claim by another for his failure to do such work, involve matters of conflicting rights between rival claimants with which the Land Department does not concern itself; but such questions are for the determination of the courts. In the Case of P. Wolenberg, above, the Secretary of the Interior further said: “The annual expenditure of $100, in labor or improvements, required by section 2324 of the Revised Statutes, is solely a matter between rival or adverse claimants to the same mineral land, and goes only to the right of possession, the determination of which is committed to the courts, and not to the Land Department. In this respect, the requirement made by section 2324 is essentially different from that made by section 2325, which makes the expenditure of $500, in labor or improvements, a condition to the issuance of patent, and therefore a matter between the applicant for patent and the government, the determination of which is committed to the Land Department.” To the same effect are The Marburg Lode Mining Claim, 30 Land Dec. Dept. Int. 202; Cleveland v. Eureka G. M. & M. Co., 31 Land Dec. Dept. Int. 69.
In Barklage v. Russell, 29 Land. Dec. Dept. Int. 401, there was an attempt made to follow out the suggestion of appellant, in this instance, by protesting to the government against the issuance of patent. The protestant there alleged that the patent applicant
It appears, therefore, that a protest to the Land Department, based upon the allegations of plaintiffs’ complaint herein, would not receive any consideration whatever. If the Land Department will not hear the plaintiffs, and the courts have no jurisdiction to hear them as appellant contends, they are remediless. But this cannot be. If their allegations are true, they have a valid, subsisting mining claim-. Such a claim is property in
Our conclusion is that, if an adverse claim is in existence at any time during the sixty-day period of publication, it must be presented to the land office, or it is waived. If such adverse
Some reliance is placed by appellant upon the decision of this court in Murray v. Polglase, 23 Mont. 401, 59 Pac. 439. So far as the decision in that case is concerned, it does not go further than to hold that these plaintiffs would not have been heard to intervene in the adverse suit of Thornton v. Kaufman, for the reason that they had not presented an adverse claim to the local land office. In the course of the opinion, this court, after determining that the interveners in that action hád no standing in court, by way of suggestion, said: “If they have any right to the ground in controversy, they * * * must be relegated to the land office, where they may be permitted to show that the parties who may succeed herein have not complied with the law” — and in support of this is cited Lindley on Mines, 1st ed., section 758, where the same suggestion is to be found. The decision in Murray v. Polglase was rendered in 1899. In the second edition of Lindley on Mines, issued in 1903, the author adds to the suggestion above the following: “Or the relocator may pursue his remedy in the courts, regardless of the pendency of patent proceeding” — citing Gillis v. Downey, above. But, as shown by the decided cases, the Land Department has now finally adopted the policy that it will not consider a protest, based upon such grounds as plaintiffs here present, so that the suggestion made in Murray v. Polglase is now of no force.
The order of the district court is affirmed.
’Affirmed.