Kannaugh v. Quartette Mining Co.

Mr. Justice Hayt delivered the opinion of the court. Although there is a large number of errors assigned, the determination of two questions will, we think, dispose of all of them. 1. Could plaintiff under the pleadings show title by purchase? Inactions of this character it is provided by the code that ivhen “plaintiff claims the legal right to occupy and possess the premises under the local laws and rules of any mining district, or of the United States, the state of Colorado, or otherwise, the complaint shall contain a brief statement of such possessory claim, and whether the right claimed is by pre-emption or purchase, or by right of actual [345] prior possession on the public domain of the United States.” Code 1887, § 267. Plaintiff in his complaint in this case bases his claim upon his prior possession and location of the property under the mining laws of the state and of the United States, etc., the claim by purchase first appearing in the replication. If it be conceded that the claim of title by purchase as set up in the replication is a departure from the cause of action as pleaded in the complaint, this could only have been taken advantage of by demurrer, motion, or otherwise before trial. If this had been done, the complaint might have been amended, and the omission supplied. It was not done. By voluntarily going to trial with the pleadings as they were, the defendant must be held to have waived such objections. This is true at common law as well as under the code. Bliss, Code Pl., § 396; 2 Chit. Pl. (16th ed.) p. 678; Keay v. Goodwin, 16 Mass. 1; Andrus v. Waring, 20 Johns. 152; New v. Wambach, 42 Ind. 456. 2. By the answer and cross-complaint they claim the right of possession to the property in controversy by virtue of a lease of the Treasure Yault lode; hence it becomes important to determine the effect of the patent proceedings upon the title to said claim. This raises the second question, which may be stated thus: May the owners of the Treasure Yault mining claim, notwithstanding their failure to adverse, present in this action claims which they or their grantors then had to the ground included in the application for a patent to the Little Winnie lode mining claim? The facts in reference to the patent proceedings and adverse suit were admitted or conceded upon the trial practically as set forth in the replication. It thus appears that the owners of the Treasure Yault lode filed within the time given by statute its protest and adverse against the issuance of a patent to plaintiff’s grantor, the then owner of the Little Winnie claim; and that in due time said parties commenced an action in support of said adverse claim, [346] which, action was pending for a number of years, and then dismissed at appellant’s cost for failure to prosecute. Appellant, after permitting the suit instituted by him to be dismissed for want of prosecution, certainly stands in no more favorable position here than if he had failed entirely to file adverse proceedings. The act of congress declares that, if no adverse claim be filed within sixty days, “ it shall be assumed that no adverse claim exists.” The object of the law is to require the claims of all parties to be adjusted prior to the issuance of a patent. The proceedings before the land department are judicial in character, and the publication of notice as required brings all parties into court; and, if they stand by and allow the statutory time for filing adverse claims, or for bringing suit in support thereof, to elapse, their rights, so far as the same might have been determined in such proceedings, in the absence of fraud or mistake (neither of ivhich are here pleaded), are forever lost. Lee v. Stahl, 9 Colo. 208; Hunt v. Mining Co., 14 Colo. 451; Seymour v. Fisher, ante, p. 188; Wight v. Dubois, 21 Fed. Rep. 693. The case last cited is directly in point. It received the sanction of this court in Hunt v. Mining Co., supra. It is not necessary to repeat the reasoning or give in detail the conclusions there announced. It is absolutely decisive of this case. The defendant, having failed in his adverse proceeding, cannot in this action be permitted to show that the discovery shaft of the Little "Winnie claim was not within the boundaries of such claim, or to take advantage of any failure on the part of said United States Gold & Silver Mining Company to file its articles of incorporation, together with the laws of the state of Illinois, in the office of the secretary of state, before -the purchase of the property in controversy. It is only necessary in conclusion to say that the trial below seems to have been conducted in accordance with the foregoing views. The evidence justifies the judgment, and it must be affirmed. Affirmed.