Davidson v. Fraser

■ Chief Justice Gabbert delivered the opinion of the court: It is contended on behalf of appellee that no exceptions to the rulings of the court on the motions have been properly preserved by bills of exceptions. What are termed bills of exceptions in these cases have been prepared in a form different from that usually followed. Instead of lodging in this court transcripts of the record proper, together with bills of exceptions, the two have been blended in one. That is to say, the record proper, together with those matters which can only be brought to the attention of this court by a bill of exceptions, have been prepared and treated as bills of exceptions. The record as thus made up is certified and attested by the trial judge and also by the clerk. From this it appears that the plaintiff did except to the rulings of the court under consideration; so that over the signature and seal of the trial judge the exceptions taken to the rulings of the trial court have been made a matter of record. The two mining claims conflict, and counsel for appellee objects to the amended complaint filed in the case involving the East Saginaw for the reason that the original only, embraced the parts of the claim which did not conflict with the A. Alexander, whereas, by the amended complaint, the ground in controversy is limited to the conflict between the two claims. The complaint is inartificial in this: That it makes averments which would be appropriate in support of [5] an adverse between hostile locations instead of limiting it to a statement of the case upon'which the plaintiff relies to maintain his action, namely, that he had been ousted and excluded from his interest in.the premises in controversy by a co-owner. Notwithstanding these inconsistencies, we do not think the pleading is objectionable upon the ground urged. •The next question to consider is whether or not the plaintiff, by his amended complaint, filed in the cause involving the A. Alexander lode, departed from the cause of action originally pleaded. A cause of action is the fact, or combination of facts, which gives rise to a right of action. The cause of action as originally pleaded by the plaintiff consisted of two ultimate facts: (1) his exclusion by the defendant from his interest in the premises; and (2) his interest therein. By his amended complaint, there was no change with respect to either of these two facts. He thereby pleaded his exclusion by the defendant, and his interest which he claimed in the premises. With respect to the latter, the facts pleaded were somewhat different, but they were directed to the same ultimate fact presented by his original complaint, namely, his interest as a co-tenant. The amended complaint did not change the cause of action originally pleaded, because, according to each pleading, it was identical as against the defendant. The vital question is, whether or not an owner of an interest in a mining claim, who has been excluded by his co-owner from an application for patent,"may adverse or protest such application and maintain an action in support thereof. So far as advised, this precise point has not been ruled upon by a court of review. Mr. Morrison, in his work on Mining Rights, 10th Ed. 413, and Mr. Lindley, in his work on Mines, 2nd Ed., vol. 2, § 728, each express views to the effect that where a co-owner applies for a patent in his [6] own name to the exclusion of his co-tenant, the latter may institute proceedings in the Land Office and maintain an action in support thereof. The personal views of these learned authors on the subject of mining law are entitled to great weight. §§2325-6 of the Revised Statutes of the United States only apply to adverse claims arising out of independent conflicting locations of the same ground, and not to controversies between co-owners claiming under the same location. — Turner v. Sawyer, 150 U. S. 578; Stevens v. Grand Central M. Co., 133 Fed. 28; 4 Current Law, 656; Thomas v. Elling, 25 L. D. 495. There is no statute prescribing the steps which shall be taken by an owner of an interest in a mining-claim from which he has been excluded by his co-owner in an application for patent. Rule 58 of the land department provides in substance that the claimant of a present interest in a mineral location who is excluded from the application for patent thereon may protest against the issuance of a patent, and such protestant will be deemed a party in interest entitled to appeal. Under this rule, and prior to its promulgation, it is now, and was, the practice of the land department, when an owner of an interest in a mining claim who has been excluded from the application for patent thereon by a co-owner, filed his protest, to direct that a suit be brought in support of such protest, and await the result of such action before issuing patent. — Coleman v. Homestake M. Co., 30 L. D. 364; Thomas v. Elling, 26 L. D. 220. "While the department is not required to await the bringing of a suit in support of such protest, because there is no provision in the statute therefor, and no obligation upon either party to invoke the jurisdiction of a court to determine their rights in such circumstances, nevertheless, the department has adopted the practice indicated for the reason that it [7] is its duty, before issuing patent, to determine who is entitled thereto, and that it is desirable1, as well as expedient, to permit the parties to proceedings initiated in the Land Office by protest to have their rights finally determined in a court of the vicinage where witnesses can be more readily produced than before the land department, and then accept the judgment of such court as determinative of the rights of the parties. This is certainly a wise policy, and there is no legal objection to its recognition by the courts. An owner who has been excluded by his co-owner from an application for patent may maintain an action against the patentee to establish and enforce a trust in the patented claim. Having this right, there can certainly, be no valid objection against the maintenance of an action during the pendency for patent, the purpose of which is to have his rights determined before patent issues. In fact, this course ought to be encouraged, especially when the land department will await the result of such an action before issuing patent, if the excluded owner initiates the necessary proceedings in the Land Office through which the application for patent is made. There may be instances wherein it might be necessary for the excluded co-owner to follow this course rather than await the issuance of patent before bringing suit, because of the dangers which might arise of losing his rights by laches, the statute of limitations, or the intervention of the rights of innocent third parties. Section 275 of our Code of Civil Procedure permits an action for the possession of an interest in realty to be brought by a tenant in common against his co-tenant, where the latter actually ousted the former, or did some act or acts amounting to a denial of his right as a co-tenant. By virtue of this provision, the plaintiff could maintain an action [8] against the defendant independent of the fact that he had filed a protest against the issuance of patent to the premises from which he has been excluded. The action of the defendant in excluding the plaintiff by applying for a patent in his own name amounts to a denial of the rights of the plaintiff, and such action cannot be pleaded as a bar to a suit instituted by the plaintiff to establish his rights. The wrong committed by the defendant cannot abate an action instituted by the plaintiff, the purpose of which is to right that wrong, and establish his rights in the premises in controversy, and which may result, when the judgment in such action is exhibited to the land department, in the issuance of a patent to the plaintiff and defendant instead of the latter, which, for the purposes of the motions interposed below, he admits he is not entitled to. The judgment of the district court in each case is reversed and the causes remanded for further proceedings not inconsistent with this opinion. Judgments reversed. Justices G-oddard and Bailey concur.