9 Mont. 279 | Mont. | 1890
This action is in the ordinary form of a contest between two claimants of a quartz lode mining claim upon the lands of the United States, to determine the right of defendant to proceed in the United States land office for patent thereto. On November 18, 1887, the defendant, Moses Manuel, made application in the land office for patent for the Marshal Ney Mining Claim. The plaintiff, Ivur Wulf, filed his adverse claim to such application, basing his contest upon his right to the premises by virtue of their location and possession as the Columbia Mining Claim, whereupon the parties were remanded
•1. The court erred in refusing to nonsuit the plaintiff. The sole ground of the motion was that Alfred Manuel, who was a link in the chain of plaintiff’s title, from November 30, 1885,
2. The only other error assigned is the action of the court in nonsuiting the defendant upon his cross-complaint. Moses Manuel, the defendant, obtained his title, if at all, by purchase in October, 1885. He applied to the United States for patent November 18, 1887. The action was commenced February 1, 1888. Defendant answered June 1, 1888. The cause was tried May 28, 1889. At all of these times the defendant was an alien, as admitted by counsel, and had not declared his intention to become a citizen of the United States. He became a citizen during the trial. This act of the defendant retroacted to all the previous events above recited. If this be the law, he should not have been nonsuited. He should have been heard upon his claim, that the right to the possession might have been declared to be in plaintiff or defendant, or neither. (21 U. S. Stats, at Large, ch. 140.) “That an alien may take by deed or devise, and hold against any one but the sovereign until office found, is a familiar principle of law, which it requires no citation of authorities to establish.” (Cross v. De Valle, 1 Wall. 13.) Appellant then cites us to a line of decisions upon the question of the retroaction of the act of naturalization. These cases treat of land in its ordinary sense, and not of possessory rights to mining claims on the public domain. They all discuss grants between persons, and not the peculiar laws, rules, and regulations by which the sovereign power promises to sell its own