Nessler v. Bigelow

Ross, J.: Action to quiet title—plaintiff relying on a patent from the Government, issued March 30, 1876, under and by virtue of the mining laws. In their answer the defendants admit that they, respectively, claimed interests in certain separate and distinct portions of the premises embraced in the patent, adverse to the plaintiff; and aver, that for more than fifteen years immediately preceding the commencement of the action, they had, respectively, held the adverse possession of the respective portions so claimed. But they could not have held adversely to the Government, and the action having been commenced within five years after the issuance of the patent, the statute of limitations could not avail them against the patentee. In their answer, the defendants affirmatively aver that the plaintiff’s patent was duly obtained, and that they had notice of his application to purchase the land, but charge, that for the purpose of preventing the defendants from contesting the plaintiff’s application to purchase the premises, he, plaintiff, [102] fraudulently represented to them, and each of them, that he only wanted the premises for mining purposes, and that he would never disturb their respective possessions; that the title he should acquire should inure to their benefit so far as their respective tracts were concerned, and that on obtaining the patent he would convey such title to them; that relying upon these representations, the defendants took no steps to prevent the plaintiff from acquiring the legal title to the whole of* the premises, but that they continued to reside upon, and at great expense to improve the respective portions claimed by them, with the full knowledge, acquiescence, consent, and approval of the plaintiff, until shortly before the commencement of this action, when the plaintiff for the first time refused to recognize any right on the part of defendants; that nearly the entire value of the premises claimed by the defendants consists in the improvements made by them; that defendants have at all times been, and now are, ready and willing and able to pay to plaintiff their just and proportionate share of the costs and expenses incurred by him in obtaining the patent, etc. Issues of the fact were raised by the plaintiff on the matters thus set up by the defendants, and which they contended constituted the plaintiff trustee for them of the title to the respective portions of the premises claimed by them, which issues were found upon by the trial Court against the defendants, on evidence which clearly justified the findings. Indeed, we find in the statement on motion for a new trial the following: “ The defendants all admit that the plaintiff never at any time made to them any promises to make deeds or deed to them if they would not put in an adverse claim to his application for a patent, and that he never held out any inducements • to them to prevent them from putting in adverse claims and opposing his application for a patent.” The other assignments of error we have examined, but do not find that any of them call for an interference at our hands with the action of the Court below. Judgment and order affirmed. MYRiCK and McKinstry, JJ., concurred.