Rader v. Allen

41 P. 154 | Or. | 1895

Opinion by

Mr. Justice Wolverton,

So far as this court is advised by the record, the plaintiff may be holding by mense conveyances under a certificate from the United States, issued after the performance of all the requirements of the laws and regulations for the acquirement of a patent to such mine, and the premises upon which the same is located. If such is the case, the paramount title may be said to be in the government of the United States, and the right to maintain the action resb with the plaintiff at the same time: Aurora Hill Mining Company v. Eighty-five Mining Company, 34 Fed. 515 (15 Morrison’s Mining Reports, 581); People v. Shearer, 30 Cal 647; Barney v. Dolph, 97 U. S. 652; Wilson v. Fine, 38 Fed. 789. The rule is that when the contract of purchase is completed by payment of the purchase money and the issuance of the patent certificate by the authorized agent of the government, the purchaser acquires a vested right in the land, of which he cannot be subsequently deprived, if he has complied with the law prior to entry. It then ceases to be a part of the public domain, and is no longer subject to the laws governing the disposition of public lands. Under such a state of facts the limitations prescribed by the Justice’s Code, (Section 2178, Hill’s Code,^*) can have no application. Such an interest is a legal estate in lands, and can be recovered by an action of ejectment. With the question as to what estate in lands, whether legal or otherwise, a person may have who has simply located a mine, or who has performed acts thereon for the purpose of acquiring title thereto, short of the acquirement of a certificate from the government, we have nothing to do in this case, and therefore do not now attempt to decide. ‘ ‘ Sufficient unto the day is the evil thereof.” The cause will be remanded with directions to the court below to overrule the demurrer.

Reversed.

* This section reads as follows: “ One year’s adverse possession of a mining claim immediately preceding the commencement of an action therefor by the defendant or those under whom he holds, if pleaded, is a bar to an action for the possession thereof.” — Reporter.