Cronin v. Bear Creek Gold Mining Co.

MORGAN, J.

(After Stating the Facts). — An objection is made to the form of the complaint by the defendant for the reason that it contains no allegation that would indicate that the suit was brought to determine an adverse claim. There is no allegation that the claim was located by the plaintiffs or their grantors; nor is there any allegation that the defendant had made application for patent, nor that the plaintiffs had filed an adverse claim in the land office to contest the right of the defendant to such patent; nor is there any sufficient allegation defining just what land is claimed by the plaintiffs, nor how much of said land is claimed by defendant. The case of Mattingly v. Lewisohn, 8 Mont. 259 , 19 Pac. 310 , was ah action of a similar character, in which the court say: “The fact of filing an 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? Is the complaint in this case sufficient without them? We think not; and, on the familiar principle that allegations and proofs should correspond, one is futile without the other.” A complaint in an action, under the Revised Statutes of the United States (section 2326), to contest an application for a patent for mining land, which fails to show that plaintiff has filed hfs adverse claim within the period prescribed by section 2325, and brought the action within the time thereafter allowed by section 2326, is defective. (See, also, Anthony v. Jillson, 83 Cal. 296 , 23 Pac. 420 .) In this case the court says: “We think that the pleading of both plaintiff and defendant should set forth the *618 facts upon which they rely. This is a rule in reference to the pleadings in actions to determine the right to purchase other public lands.” In Woods v. Sawtelle, 46 Cal. 389 , Rhodes, J., said: “When action is brought to determine which of the parties has the better right to make the purchase, it becomes necessary for each party to state directly all the facts upon which lie relies to show that his is the better right.” In Cadierque v. Duran, 49 Cal. 356 , the same learned justice, speaking for the court, said: “Each party must state in his pleadings all the facts upon which he relies as showing his right to become the purchaser; all the steps he has taken to avail himself of and secure his right to make the purchase— applies to the answer as well as the complaint.” In this case, however, there was no demurrer filed to the amended complaint, probably for the reason that the complaint is sufficient in an action to quiet title, and having no reference to a contest between the parties seeking to obtain a patent from the United States under sections 2325 and 2326 of the Revised Statutes ■of the United States.

In the bill of exceptions, which appears as a part of the record in this case, is the following stipulation:

“MICHAEL CRONIN et al. Plaintiffs, vs. THE BEAR CREEK GOLD MINING CO., Defendant.

“It is stipulated and agreed by and between plaintiffs and •defendant that plaintiffs now have and own by mesne conveyances all the rights acquired by William Bichan, A. D. Craig, Michael Cronin, Pasco Yeatz, Jacob Reeser, James Fleming, by and under their notice of- location of the Reeser lode, dated September 13, 1889; and the defendant now has and owns by mesne conveyances all the rights acquired by S. B. Dilley by and under his notice of location of the Duncan lode claim, -dated in January, 1879; and that said plaintiffs filed in the proper land office at Hailey, in this state, an adverse claim to *619 'the defendant’s application fox patent for said Duncan lode ■olai-m, within the sixty days’ publication of notice of said application, which adverse claim is founded upon and sets forth said notice of September 13, 1889, as the source of plaintiffs’ title. That plaintiffs’ action was commenced within thirty days after the filing of said adverse claim; and that the plaintiffs are citizens of the United States; and that the above-named locators, under which plaintiffs claim, are, and S. B. Dilley is, ■a citizen of the United States, and were such at the time of their respective locations.

(Signed) “R. Z. JOHNSON,

“Attorney for Defendant.

“CAHALAN & BADGER, “Attorneys for Plaintiff.”

Indorsed as follows, to wit: “In the district court óf Elmore county. Michael Cronin et al. v. The Bear C. M. Co. Filed November 3, 1891. A stipulation.”

This stipulation, together with the pleadings in the case, shows that this is an action brought in accordance with section 2326 of the Revised Statutes of the United States, in support ■of the adverse claim to the mining land in question, and to determine the right to the possession thereof. To sustain such .suit, it is necessary to prove that the adverse claim was filed in the land office within sixty days of the publication of the notice of application for patent, and also that said suit was brought in support of such adverse claim within thirty days ■of the filing of the same. If necessary to prove these facts, it is also necessary to allege them in the complaint. The complaint contains no such allegations, and is fatally defective in 'this respect. The complaint does not show wherein the location alleged to have been made by the defendant conflicts -with that made by the plaintiffs, or whether it conflicts at all. The judgment must follow the complaint. It would be impossible 'to construct a judgment in this case which would determine the right of the plaintiffs to the mining claim in controversy, ■or which would sufficiently inform the officers in the land office that the land described in the application for patent was *620 owned by the plaintiffs, without going outside of the complaint, to the proofs or maps or charts, to identify the claim in such manner as to make it sufficiently certain. The complaint, therefore, is not only insufficient to permit proofs to be introduced, but is also insufficient to support a proper judgment in-this case, and nonsuit was properly allowed. (Mattingly v. Lewisohn, supra; Lalande v. McDonald, 2 Idaho, 307 , 13 Pac. 347 .) Defective allegations in the complaint are sometimes cured by the answer, but the entire absence of a material allegation is not supplied by the answer. Neither does the stipulation cure defects in the complaint. The complaint being insufficient to support the judgment, it is unnecessary to go further in this ease. The judgment of the court below must bn affirmed, and it is so ordered. Costs awarded to defendant.

Huston C. J., and Sullivan, J., concur.