Buckley v. Fox

67 P. 659, 8 Idaho 248, 1902 Ida. LEXIS 9

• Court: Idaho Supreme Court
• Decided: January 24, 1902
• Status: Published

Opinion

SULLIYAN, J.

— This action was brought to quiet title to an undivided one-third interest in and to the Keystone mining claim situated in Blackbird mining district, Lemhi county. Said mining claim was originally located by Angus Cameron, John Taylor, and H. Shipman in 1895. The appellant, J. C. Fox, purchased the interests of said Cameron and Taylor, and by way of forfeiture proceedings instituted under the provisions of section 2324 of the Revised Statutes of the United States, sought to procure title to the one-third interest of H. Shipman in said mining claim, on the ground of said Shipman’s failure to pay for his one-third of .the assessment work on said claim for the years 1897 and 1898. During the pendency of the forfeiture proceedings the respondent by divers mesne conveyances claimed to have acquired the interest of said Shipman, and attempted to redeem said interest from said forfeiture, and brought this action to determine his right to said undivided one-third interest in and to said claim. The case was tried by the court with a jury, and judgment was entered in favor of the plaintiff. The appeal is from the judgment.

Two errors are relied on for a reversal of the judgment: First, it is contended that the complaint fails to state a cause of action, because it fails to allege that the plaintiff is a citizen of the United States, or had declared his intention to become such; and, second, that there is no finding on the question of citizenship. In support of appellant’s contention, counsel cite Rosenthal v. Ives, 2 Idaho, 265, 12 Pac. 904, and Bohanon v. Howe, 2 Idaho, 453, 17 Pac. 583. The case of Rosenthal v. Ives, supra, is not in point, for the reason that that was an action brought in support of an adverse claim on the application for a patent from the United States to a mining claim, and was brought under the provisions' of section 2326 of the Revised Statutes of the United States. And the case of Bohanon v. Howe, supra, is not in point, for the reason that the rule there laid down has been abrogated by the provisions of sections 1 and 2 of an act entitled "An act to regulate the rights of aliens, corporations and associations to acquire real estate.” (Sess. Laws 1899, p. 70.) By said section 2 it is provided that aliens not Chinese or persons of Mongolian descent, may acquire, take, hold, and dispose of mining claims. (See, also, Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708.) This is not an action in support of an adverse claim under the provisions of the statutes of the United States, and under the laws of Idaho, above cited. In a case of this kind it is not necessary to allege or prove that the plaintiff is. a citizen of the United States, or that he has declared his' intention to become one.

The judgment is affirmed, with costs in favor of respondent.

Quarles, C. J., and Stockslager, J., concur.