Lily Mining Co. v. Kellogg ( 1903 )

BASKIN, C. J.

(After stating the facts.)

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The appellant, Ralph M. Kellogg, contends that the court erred in rendering a decree in favor of the respondent for the additional area set out in the amended complaint, which was not covered by the adverse claim-. It is provided in section 2326 of the mining laws of Congress (Act May 10, 1872, c. 152, 17 Stat. 93 [U. S: Comp. St. 1901, p. 1430]) that, “where an-adverse claim is filed during the period of publication, it shall be upon the oath of the person or persons making the same, and shall show the nature, boundaries, and exT tent of such adverse claim," and all proceedings;, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession; and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. ’ ’ In view of the facts disclosed by the record, it is clear, from the foregoing provisions of the mining law, that the pending action is purely statutory, and that the statutes of this state regulating generally actions for the recovery of real property, or for questioning the title thereto, are inapplicable. Bennett v. Harkrader, 158 U. S. 441-447,15 Sup. Ct. 863, 39 L. Ed-. 1046; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. 289, 30 L. Ed. 474; Rutter v. Shoshone Min. Co. (C. C.) 75 Fed. 37; Doe v. Waterloo Min. Co. (C. C.) 43 Fed. 219. In the case of Bennett v. Harkrader, supra, the court said: “Again, in this action, brought under a special statute of the United States in support of an adverse claim, but one estate is involved in the controversy. No title in fee is or can be established. That remains in the United States, and the only question presented is the priority of right to purchase the fee. Hence the inapplicability of a statute regulating generally actions for the recovery of real estate, in which actions different kinds of title may be sufficient to sustain the right of recovery. It would be purely surplusage to find, in terms, a priority of the right to purchase, when that is the only question which can be litigated in such statutory action. If the plaintiff owns the fee, he is not called upon to file an adverse claim or commence such an action, and the statute providing therefor has no application.” Iron Silver Mining Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. 765, 34 L. Ed. 155. In regard to the proceeding in the case of Rutter v. Shoshone Min Co., supra, which was an action in support of an adverse claim, Beatty, District Judge, said: “So far as the court is concerned, it is a special proceeding, referred to its determination for the guidance of the land office, and the jurisdiction of the court in such cases is based upon prior proceedings in such office.” In the case of Doe v. "Waterloo Min. Co., supra, Ross, J., said: “The proceedings here in question are purely statutory, and they had their inception, not in the court in which the suits were commenced, but, as said by the' Supreme Court in Wolverton v. Nichols, 119 U. S. 488, 7 Sup. Ct. 289, 30 L. Ed. 474, by the assertion of the defendant’s claim to have the patents issue to it for the land in controversy. The next step was the filing of an adverse claim by the plaintiff in the land office, and the present suits are but a continuation of those proceedings, prescribed by the laws of the United States, to have a determination of the question as to which of the contesting parties is entitled to the patents.” It follows that in such statutory actions ^ an allegation by the plaintiff that an adverse claim, in due time and form, showing its nature, boundaries, and extent, was filed in the land office, is traversable and necessary to confer jurisdiction upon the court to decide the controversy (Mont Blanc Con. G. Min. Co. v. Debour, 61 Cal. 364), and that “an action brought in support of such adverse claim must be based upon the right asserted in such claim, for the reason that it must be conclusively assumed that no adverse claim exists, except such as has been filed” (Marshall Silver Min. Co. v. Kirtley, 12 Colo. 410-415, 21 Pac. 492). Individual rights to mining claims can be acquired and held, and an absolute title to such claims obtained through the land office, only upon the terms and conditions prescribed by the mining laws of Congress. Under section 2325, Rev. Sh U. S. [U. S. Comp. St. 1901, p.-1429], when no adverse claim within the time therein prescribed is filed, it must be assumed that the applicant is entiled to a patent, and that no adverse claim exists. In Lavag-nino v. Uhlig, 26 Utah 1, 71 Pac. 1046, this court held that the expression in the mining law, “It shall he assumed,” must be construed to mean “conclusively assumed.”

It is clear from the record and the provisions of the mining law that the pending action is purely statutory, and was brought in pursuance of the United States statutes, and in support of the adverse claim, the filing of which constitutes the very basis of the action; that the only controversy between the contesting parties is as to which, if either, has the right of possession to that portion of the Ralph within the boundaries of the adverse claim filed by the plaintiff, which, it is alleged, conflicts with the Lily of the West; and that it must be conclusively presumed that the plaintiff has no adverse claim other than that filed in the land óffice. It follows that that part of the decree which awards to the plaintiff the area outside of the boundaries of the adverse claim in erroneous and must be set aside, and the decree in favor of the defendant amended so as to include said area. In ali-other respects the decree is supported by the facts and findings.

It is ordered that the case be remanded, with directions to the court below to modify the decree in accordance with this opinion, and that the appellant recover his costs herein expended.

BARTCH, J., concurs.