Mattingly v. Lewisohn , 8 Mont. 259 ( 1888 )

De Wolfe, J.

The respondents in this court (the plaintiffs in the District Court) filed their complaint, in which they alleged that they were the owners of three-fifths undivided interest of the Great Eastern Lode Mining Claim, and that two of the appellants were the owners of the other two fifths of said claim. The complaint also alleges the citizenship of the plaintiffs, and improvements of the value of two thousand five hundred dollars done upon the claim. Then follows the allegation: “That defendants have made application for a patent from the United States to all of said premises, and deny plaintiffs’ right to any and all thereof; and said claim of defendants is placing a cloud upon plaintiffs’ title to said premises, and rendering the title of plaintiffs to the same of less value; and if defendants are permitted to proceed, will render plaintiffs’ title to the same valueless.” The complaint concludes with the usual prayer for relief. To the complaint the defendants interposed a general demurrer, that the complaint does not state " facts sufficient to constitute a cause of aótion, or to entitle plaintiffs to any relief. The court overruled the demurrer, and the first question presented by the record is the correctness of this ruling.

The complaint shows that the action is a statutory one, intended to be brought under section 2326 of the Revised Statutes of the United States; otherwise, the allegations that the defendants have filed application for patent, and if they are permitted to proceed (with the application) it will render plaintiffs’ title valueless, are without force or meaning. Sections 2325 and 2326 of the Revised Statutes of the United States point out clearly the steps to be taken by an applicant for patent for mineral lands, and by an adverse claimant who resists such application. The first section limits the time for filing an adverse claim to sixty days during the period of publication, and, upon a failure to file an adverse claim within that time, declares that “ 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; and that thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.” Section 2326 requires the person or persons filing an adverse claim within thirty days thereafter, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and a failure to do so shall be a waiver of the adverse claim. By both these sections the rights of an adverse claimant are forfeited or lost upon a failure to avail himself of the remedy given him by the statute. If he fails to file the adverse claim in the land office within the sixty days allowed, he has no standing as an adverse claimant or contestant in the land office. If he fails to institute the suit within the thirty days allowed by law, he has no standing in court to contest the claim of another to a patent for mineral lands. The fact of filing the adverse claim within the statutory time, and the institution of the suit within the time limited by law, must doubtless be conclusively established by proof to enable the adverse claimant to'recover. If these facts are necessary in proof, are they not also necessary as allegations? and is a complaint of this kind sufficient without them? We think not; and on the familiar principle that allegations and proofs should correspond, and one is futile without the other. We therefore think that the District Court erred in overruling the demurrer to the complaint; and, for this reason, that the case should be remanded to the District Court, with instructions to sustain the demurrer.

We are confirmed in this view for the additional reason that a contrary practice to the one here laid down would or might lead to a conflict of action between the officers of the land department and the courts, in suits of this character. The law makes it the duty of the agents of the land department to stay proceedings, on an application for a mineral patent, only when an adverse claim is filed within sixty days of the publication of notice of application for patent; and when this is not done, the agents of that department would doubtless consider it their duty to issue a patent to the applicant. This might be done while an action for the same premises between different claimants was pending and undetermined in court.

The record and brief of appellants (the only brief on file) suggest other errors, on overruling and striking out evidence offered by the plaintiff on the trial, but a majority of the court think it unnecessary to consider them, as all concur in the opinion that the cause must be reversed for overruling the demurrer to the complaint. Cause reversed and remanded.

Judgment reversed.

Bach, J., and Liddell, J., concur.