Gebo v. Clarke Fork Coal Mining Co.

MR. JUSTICE HOLLOWAY, after stating the case, delivered the opinion of the court. o The demurrer challenges the jurisdiction of the court, and the sufficiency of the allegations of the complaint to state a cause of action; but, as the last ground of the demurrer only is contended for by the respondents in this court, our examination is confined h> that inquiry. Appellant argues at length that this character of action is maintainable, and this is readily conceded by respondents, so that the only inquiry before us is, does the complaint state facts sufficient to constitute a cause of action, or bring the plaintiff within the rule applicable to such actions ? The rule is that if, as a matter of fact, the government was imposed upon, and by fraud or mistake issued a patent to some other person, when in truth the plaintiff -was entitled to it, then, upon a proper showing, a court of equity will decree the patentee to he a trustee, and to hold the land in trust for the use and benefit of the party really entitled to it. (Meyendorf v. Frohner, 3 Mont. 282.) But what is a proper showing? The very foundation of the rule is that the patent was issued to another when plaintiff was justly entitled to it. Then the complaint must show such facts as that it will appear therefrom [91] that she has connected herself with, the original source of title in the government, and that her rights are injuriously affected by the existence of the outstanding patent. She must show such equities in herself as will control the legal title in the defendants’ hands. (Power v. Sla, 24 Mont. 243, 61 Pac. 468.) The filing of the so-called declaratory statement does not even withdraw the land from entry, but any number of filings may be made upon the same land successively. The only effect of the filing of "such declaratory statements is to give to the applicants, in the order of their filings, preference rights to purchase the land, and that only for a period of fourteen months from the date of filing. In other words, such filing only initiates a right, which may be lost by relinquishment, by failure to prosecute work on the land in good faith, or by failure to make proof and payment within the fourteen months; and, in order to make out a cause of action, plaintiff must show, first, that she did not voluntarily relinquish her right so initiated, and, second, that she did in good faith prosecute work upon the land, and, within the time allowed by law, did make proof and payment for the land, or at least offer to do so. She must show affirmatively that upon her part she did, or offered to do, all that was necessary to be done in order to secure the patent, and upon the doing of Avhich patent should have issued to her (Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61) ; and these in addition to the facts necessary to be shown in order to entitle her to make the filing in the first instance. If, as a matter of fact, plaintiff' had knoAvn of the filing of the so-called forged relinquishment before the expiration of the fourteen months, she might with some show of reason claim that it was unnecessary for her to offer to make proof or tender payment, upon the theory that the law Avill not require the doing of a vain thing; but, on the contrary, she shows affirmatively that she did not knoAV of the existence of such relinquishment until more than five months after the expiration of the time Avithin Avhich she might have made proof and payment, and yet there is no allegation in the complaint that Avithin the fourteen months, or at all, she ever [92] made any offer to prpve up on the land or pay for it. The reason for the necessity of this allegation is apparent, for, if there was another valid filing made upon the same land subsequent to the plaintiff’s, and prior to the expiration of such period— and there is no allegation that there was not — and such subsequent applicant had in good faith complied with the law, plaintiff’s right to patent would have ceased absolutely on May 20, 1898, and thereafter she would have been a stranger to> the title (Section 2350, Rev. St. U. S. [U. S. Comp. St. 1901, page 1441]), and unable to maintain this action at all. The complaint must negative the fact of plaintiff’s voluntary relinquishment of her filing on the land. It is not enough to show an initiation of a valid claim, but she must show a valid, subsisting claim during- the time allowed by law for finally merging such claim into patent. The mere allegation that a fraudulent relinquishment was filed by certain parties is not an allegation that plaintiff herself never voluntarily relinquished her claim. It is not enough for her to show that the patent should not have been issued to Thomas and Burchmore. (Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428.) She must show affirmatively that it was the filing of the so-called fraudulent relinquishment .alone which deceived or misled the officials of the government, if they were deceived or misled, who otherwise would have received her proof and payment for the land, and issued to her the patent therefor. (Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29 L. Ed. 570.) And the reason for this rule is manifest, for the execution and delivery of the patent to Thomas and Burchmore were the final acts of the officials of the government in the transfer of its title to the land, and, as those acts could lawfully be performed only after certain steps had been taken, the patent itself is in the nature of an official declaration by that branch of the government fix which the disposition of the public lands is intrusted that all the requirements preliminary to its issue have been complied with. (Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875.) In the absence of any showing to the contrary, the presumption will be [93] indulged that, the officials of the land department had before them sufficient proof to justify the issuing of the patent to Thomas and Burchmore. (Lee v. Johnson, supra.) Numerous other infirmities in the complaint have been pointed out, but the foregoing considerations are sufficient to demonstrate its insufficiency, and the correctness of the trial court’s ruling. The judgment is affirmed. Affirmed.