Brettell v. McMaster , 4 Colo. L. Rep. 374 ( 1884 )

Secretary Teller to Commissioner McFarland, December 7, 1883.

I have considered the appeal of Samuel McMaster from your decision of March 19,1883, in the matter of the Lincoln Quartz mine, No. 132, in the Deadwood, Dakota, land district.

It appears that McMaster filed an application for patent for this mine October 30, 1878, and that December 30th following, during the period of McMaster’s publication, George Brettell, as attorney for F. S. and A. L. Brettell, filed an adverse claim for the Greenback lode, sworn to by himself, and that suit was commenced thereon January 27, 1879. On February 25, 1880, you dismissed the adverse claim for the reason that it was not sworn to by either of the claimants, but by their attorney. No appeal was taken from this dismissal.

March 30, 1880, McMaster filed in your office a certificate of the clerk of the Court that no suit was pending involving title to any part of the Lincoln claim, except the one brought by A. L. and F. S. Brettell, as owners of the Greenback lode vs. him as owner of the Lincoln claim.

On these facts you held it would be improper for you to issue patent to McMaster pending suit in a Court of competent jurisdiction involving the possessory title to a large portion of the Lincoln claim, until he filed in your office a certificate from the clerk of the Court that the suit had been dismissed, or had been decided in his favor. Although section 2326 of the Revised Statutes requires that, “An adverse claim shall be upon oath of the person or persons making the same,” and the present claim was filed upon oath of their attorney only, and although your decision dismissing the adverse claim became final against such claimants for want of appeal so far as respects proceedings in the Land Department, I am of the opinion that the claim having acquired a status in the Courts, the question of its regularity and validity should be left to the judgment of the Court, and that pending the proceeding, this Department should take no action therein.

Your decision is affirmed.