Iba v. Central Ass'n of Wyoming

40 P. 527, 42 P. 20, 5 Wyo. 355, 1895 Wyo. LEXIS 30

• Court: Wyoming Supreme Court
• Decided: May 29, 1895
• Status: Published

Opinions

. GroesbeCK,' Chiee Justice.

. This action was brought 'in the district court for Natrona county, and was removed upon change of venue to the district .court for Laramie county. • The amended- petition of the plaintifi. below, who is plaintiff in error here, alleges the citizenship of plaintiff; that defendant is a domestic corporation; that the plaintiff, except against the paramount title of the United States, is the legal .owner of the southwest quarter of section 13 of township 40 north of range. 79 west, in Natrona county in the State of Wyoming, and under and by virtue of a compliance on his part with the laws of the United States, the State of Wyoming and. the rules and regulations .of the-Casper Mountain Mining. District, within the limits ofiwhich.the premises are located, in relation to mineral lands of. the United States, the.plaintiff is entitled to the possession thereof; and that he was such owner on the first day of February, 1892, and had been for a long time prior thereto, and has ever since .-been entitled to the free and -full possession thereof; that on or about the date last aforesaid, the. defendant by its agents and employes entered upon and took possession of said premises, wrongfully and without the consent of plaintiff, and wrongfully and unlawfully interferes with the possession of the plaintiff, and prevents his free and full possession thereof, and wrongfully withheld and still withholds .the possession thereof from the plaintiff to his damage in the sum of one thousand dollars; that on or about the 1st day of February, 1892, the defendant herein filed his application for. a patent for said above described .premises, calling the same the Jackass Oil Placer Mining Claim, in the United States Land Office' at Douglas, Wyoming; that afterwards, within the period of publication as required by law, the plaintiff filed in said land office his protest and adverse claim against the issuing of a patent to said premises to the defendant, and brings the action to support said adverse claim; that plaintiff has necessarily disbursed in support of his adverse claim certain specific sums for the expense of preparing it. He therefore prays judgment against the defendant for the recovery of the full and free possession of said premises, for the sum of $1,000.00 damages and for the sum of $87.00 expended in support of said adverse claim, and for costs of suit.

The answer of the defendant admits its corporate existence, denies the allegation of citizenship for lack of sufficientknowl-edge to form a belief as to the truth or falsity of such allegation, and specifically denies each of the remaining allegations of the petition, admitting, however, the‘filing of the application for a patent for the oil placer mining claim, and •the filing of the protest in the land office against the issuance of a patent to defendant, and denying for lack of sufficient knowledge thereof the alleged disbursements of plaintiff in the matter of making his protest and adverse claim. For a second defense and cross petition, defendant alleges its title, except as to the paramount right of the government to the premises by virtue of its compliance with the acts of congress and State and local regulations, and its ownership and possession of the lands, and "prays judgment against the plaintiff that its title to said realty be freed and cleared of any and all claims of the plaintiff, and for costs. As required by our statute, both of these pleadings are verified. No reply or answer to the defense or “cross petition” was filed by the plaintiff. The cause was Continued and leave was given to plaintiff to take depositions in term time. Plaintiff asked for permission to file a reply to the answer after the time had expired therefor, which was denied by the court, and upon motion of the defendant, judgment was rendered upon the pleadings in favor of the defendant, and certain findings of fact based upon the answer or cross petition of defendant were made by the court, over the objections, of plaintiff. A motion was made to set aside the order for judgment upon the pleadings, upon a number of grounds most of which are waived as not insisted upon in the petition in error, and the sole contention is upon the action of the court in rendering judgment upon the pleadings.

The proceedings were instituted under the provisions of section 2326 of the Revised Statutes of the United States, requiring the party filing the adverse claim in the land office to commence proceedings in a court of competent jurisdiction within thirty days after filing his adverse claim and to prosecute the same with reasonable diligence.

It has been held that ejectment is the proper form of proceeding in such actions, Becker v. Pugh, 9 Colo., 589, and that the suit is one at law and not in equity, Burke v. McDonald, 13 Pac., 351, and that the parties have the right of trial by jury, Manning v. Strehlow, 11 Colo., 451. It is provided that if, in any action brought pursuant to section 2326 of the Rev. Stat. U. S., title to the ground in controversy shall not be established, the jury shall so find, and judgment shall be entered according to the verdict, and in such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title. 21 U. S. Stat. at Large, p. 505. Under this act the rulings are that each party is practically a plaintiff and must show his title; that there can be no. non-suit, but that if'neither show title the verdict must be special, and the title, of course, remains in the United States so far, at least, as the litigating parties are concerned. Jackson v. Roby, 109 U. S., 440; Rosenthal v. Ives, 2 Idaho, 244. Under the section cited, upon the filing of the adverse claim all proceedings in the land office are suspended until the determination of a court of competent jurisdiction is reached, or until it is shown that the adverse claimant has not brought suit upon his adverse claim within thé time fixed by law.

• It has been held that where a defense is interposed setting up the claim of ownership or title in the defendant,-a repliea- , tion must- be filed,' or the plaintiff will be entitled to judgment on the pleadings. Newman v. Newton, 14 Fed., 634. In this case it was sought to vacate a judgment for. the defendants for want of a replication, in an action in ejectment to recover a certain mining claim, which was refused, and the reason for the decision appears in the opinion of Judge Hal-lett to be based upon the peculiar provisions of the Colorado Code of Civil Procedure; and in ejectment for a mining claim, where defendant sets up title in himself, the plaintiff must reply. These provisions quoted from in the opinion are that the defendant may deny the allegations of the complaint or disclaim any interest in the premises, and that “the answer may also state genlrally, as in the complaint, the character of the estate in the premises, or any part thereof, which the defendant claims, or any right or possession or occupancy he claims.” Our code is entirely different in this respect. It provides that in actions to recover realty, “it shall be sufficient, if the defendant in his answer deny generally the title alleged in the petition, or that he withholds possession; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted.” Eev. Stat., sec. 2988. In Ohio, where provisions of the civil code of procedure • identical with those of our code are quoted, it was held that in an action under the code for the recovery of real estate, whereof the legal title is'in the plaintiff, a defense grounded on an equitable title and right of possession under it in the defendant can be set up and must be pleaded, and that a general- denial of the plaintiff’s title merely would not let in testimony of such equitable estate. Powers v. Armstrong, 36 O. S., 357. But where the answer in such actions denies the title alleged in the petition, other defenses in the answer setting up title in the defendant are not material, as the questions thus sought to be presented properly arise on the trial under the general denial of the title of the plaintiff. Rhodes v. Gunn, 35 O. S., 387; Kyser v. Cannon, 29 O. S., 359; Mehurin v. Stone, 37 id., 49; Wintermute v. Montgomery, 11 O. S., 442. It has been held otherwise, Davis v. Clark, 2 Mont., 310; Newman v. Newton, supra; but these adverse decisions are probably based on peculiar statutory provisions. In Kansas, where the code provision is similar to that of Ohio and ours, under a general denial, defendant may prove a paramount title in himself, where such title carries with it a right of possession, whether it is legal or equitable. Clayton v. School Dist., 20 Kans., 256.

If the legal effect of the allegations in an answer is a mere denial of the averments in the petition, or where they could have been shown under a general denial, a reply is not necessary. Dayton Ins. Co. v. Kelly, 24 O. S., 345; Corry v. Campbell, 25 id., 134; Ferguson v. Tutt, 8 Kans., 370; Bliss Code Pleading, 396, and cases cited. It is apparent that like a general denial in replevin, under the code, a general denial in an action for the recovery of realty thereunder is sufficient to let in any legal defense, such as paramount title in the defendant or in a third person. It has been a matter of some contention that an action in the nature of one in ejectment, would permit a plaintiff to enforce an equitable right or estate. It is sufficient for him under our code to state in his petition, that he has a legal estate in the premises, and is entitled to the possession thereof, and it may be asserted that in a suit like the one at bar, the paramount title being in the United States, and so admitted in the pleadings, that the prevailing litigant has nothing more' than an equitable estate or the right to the legal title, upon his compliance with the local rules of miners and the national and State statutes relating to the location of working and obtaining title from the government to the mining claim. The “legal estate” which the plaintiff may allege that he has, may comprehend any estate known to the law, and it seems that the early cases have decided that a plaintiff may recover upon his possessory title alone where no better is set up by the defendant. Ludlow v. Barr., 3 O., 407; Abram v. Will, 6 O., 164; Devacht v. Newsam, 3 O., 57. But the act of congress must govern the final disposition of the case, in order that the land officials- may proceed as directed by that statute. The judgment of the court must be filed in the land office, and until that is done, or a showing is made that the adverse claimant has not brought his suit within the time limited by statute or has not prosecuted the same with diligence, all proceedings are stayed in the land office. The act of congress of 1881 directs a finding by the jury in case title to the ground shall not be established by either party, and the claimant for the patent, the defendant in the action, can not proceed in the land office or be entitled to a .patent for the ground in controversy until he shall have perfected his title. So then the ultimate result of a suit is a finding that the plaintiff has the exclusive right and title, save only as to the legal title of the governifient, or that the defendant has the same title, or that neither of them has it. When the relief is afforded- by the courts of a State, the rules of pleadings and the methods of procedure of the State must be followed, yet the matters settled ought to be under the provisions of the Federal statute, or the relief will be wholly inadequate and nothing might be determined that would be of advantage to either litigant or the government. The ordinary rule in such actions that the plaintiff must recover upon the strength of his own title, and that otherwise the defendant is entitled to judgment, does not govern in these actions where application for patent to mining claims has been made, an adverse claim has been filed thereto, and the matter is transferred to a court of competent jurisdiction for determination where not only the title of the parties to the controversy is to be settled but the rights of the government as against either or both of the parties is to be determined, that is, that the plaintiff has the title, or that the defendant has it, or that neither of them has it: The term “title” is used, although it is assumed that the government holds the title until the patent issues, but the grant having been made to the locator of a mining claim who perfects the location by performing the annual work thereon prescribed by law, the government in its statutes and by its practice considers such .locator entitled as of right to a patent therefor upon proper proof of location, working, the expenditure of labor and material thereon, to a certain amount, where no con test-arises over the location, and even then when his claim is established by suit.

The defendant must introduce evidence directly and affirmatively establishing his claim and an instruction in such case that plaintiffs should prove their case by a fair preponderance of the evidence, and if the evidence was equally balanced the defendant must recover was held' erroneous. Becker v. Pugh, 29 Pac., 173. The ordinary rule in ejectment under our statute that the defendant may establish his paramount claim or title under a general denial or specific defense is changed by the direction of the act of congress that he must do so. The reasons for these distinctions between this class of action and others are obvious. The whole proceeding in the government land office is stayed upon the filing of the adverse claim to the application for the patent, until the rights of the parties and those of the government are judicially determined. If one of the parties' litigant establishes his claim, it must be so found, if neither, that finding must be made. Before the government passes its title, there must be an application for a patent, and this notice must be published in the newspaper nearest the claim for the statutory period, and the claim must be described accurately, according to its location and survey, so that the public may know what land is covered by the application and in order that those having or claiming to have adverse rights may be protected and enforce them if they choose by filing an adverse claim, and by seeking to enforce such a right in the courts. 'In this case, the parties are compelled to institute proceedings in the State courts, as they are both considered as residents or citizens of this commonwealth, and where the jurisdiction of the State court is not challenged it should proceed to administer justice between the parties and the government, according to the national statutes. The petition in this case sets forth the fact of the application for patent by defendant, that plaintiff contested this right by filing his adverse claim, and now seeks to enforce his right by proceeding in a court of competent jurisdiction. The defendant specifically denies his possession, or right to it, or his compliance with the Federal statutes, local laws and rules of miners; alleges such compliance on its part in order to perfect its claim, and it further seeks to quiet title hy filing a so-called cross petition wherein no new matter is pleaded, and where the relief sought would he unavailing, as it would not he decisive of his rights in the land office. Defendant insists that all the matter alleged in his so-called cross petition, is “new” and not being controverted hy a reply or answer, must he taken as true, under familiar provisions of our code. But the petition sets up the claim of the defendant and its attempt to secure a patent, and the contest of the application hy filing an adverse claim by the plaintiff. If; under our code, all of the allegations of the answer could have been pleaded as a defense, either as a distinct defense or under the general denial, it is difficult to see how this “cross petition” of the defendant can be considered. as new matter, or anything further than a matter in bar of the plaintiff’s recovery. We do not think that the answer required a reply, as it did not contain new matter. An attempt is-made to quiet the title, but it is doubtful if the defense can be so considered. The title to the premises is not vested in the defendant or in the plaintiff, and the matter in controversy is the right to the exclusive possession, upon which the ultimate title, the patent from the government depends.

■ It does not seem possible that where one party alleges the exclusive right of possession in certain realty in himself, and another in himself, that .judgment can he rendered on the pleadings. Even in an action to determine the right of possession to a mining claim, the failure.of the court to find as to the citizenship of the party for whom the judgment is rendered is error although the citizenship of the party was admitted by the pleadings. Rosenthal v. Ives, 2 Idaho, 243.

■ And it has been held in Ohio, where the code is identical with ours, that in an action not founded on contract express or implied, thé verification of the petition does not prima facie embrace or determine the amount of recovery and it is error to enter judgment thereon without evidence of amount or value;. and this pause was for services rendered to- a decedent during his lifetime by bis daughter, the executor being sued. Pollock v. Pollock, 2 Oh. Cir., 143. The code provides that every “material” allegation of new matter in the answer not,controverted by the reply, shall, for .the purposes of the action be taken as true, but the allegations of value or of amount of damage shall not be considered, as true by failure to controvert them. A material allegation in a pleading is one essential to the claim or defense which could not be stricken from the pleading without leaving it insufficient. Eev. Stat., secs. 2468-9. The defense set up in .the answer was not new matter requiring- a reply, and although it is termed a cross petition and seeks to eject an equitable defense for affirmative relief, it can not be so considered. • It is based evidently upon our code provision permitting- an action to be brought by one in-possession^ either by himself or tenant, of real property, against one who claims an estate or interest-therein, adverse to him, for the- purpose of determining such adverse estate or interest. A distinction is made between ordinary actions under- such a provision and proceedings instituted under the. act .of congress to determine the right and title of the claimants for patent. -, Wolverton v. Nichols, 119 U. S., 485. The action to quiet title, is allowed where the application for patent is not resisted, as in case of the location of a lode claim, within the limits of a placer claim, after an application for patent for -the latter has been made, and the lode claim was motlmow-n-to'exist-at. the,time of the application for the patent. Dahl v. Raunheim, 132 U. S., 260. But in such a proceeding- as this where the plaintiff seeks to establish a claim paramount to that of the defendant who has applied for a patent,- it is doubtful if the right of the defendant could-be asserted-to.,-have-the title quieted,-as -the-relief to be obtained in,a suit at law.is adequate, and the- determination .of the controversy settles the rights-.of either party or the rights of neither., -.The question is narrowed to the- absolute-right of either party .to the premises in-dispute, .and nothing further ought to be- permitted in the- pleadings: ■.- A judgment- on the pleadings .ought-to'be sustained unless-the plead- - ings are insufficient to- sustain a different judgment notwithstanding any evidence which might he produced. Rice v. Bush, 16 Colo., 484. A single material issue precludes a judgment on the pleadings. Widmer v. Martin, 87 Cal., 78; Horsky v. Moran, 13 Mont., 250.

The court below made findings of fact upon the allegations of the answer alone, hut this was erroneous, while the allegations of the plaintiff’s petition were of as much force. Miles v. McCallam, 1 Ariz., 491. Such findings of fact should have been supported by evidence in a case of this character. . .

Some contention is made because the plaintiff in error filed a motion to set aside the judgment instead of for a new trial, hut we think this was the proper course; as there was no-examination of the question of fact at issue in the .pleadings, that the plaintiff was the owner, the defendant denying this and asserting its ownership. There was no trial on'.these issues and no motion -for- a new. trial was necessary.

The judgment of the district .court for Laramie county is reversed and the cause is remanded for trial.

Reversed.. -

- Conaway and Potter, JJ., concur.