Smith v. Wheeler

Citations

• 5 Alaska 282

Syllabus

<p>1. Mines and Minerals &wkey;>41—Adverse Suit—Patents.</p> <p>Pending a suit in ejectment for mining ground the defendants gave proper notice through the United States General Land Office and applied for a patent to the claim. The first publication of the notice was on February 24, 1913. Act Gong. June 7, 1910, c. 265, 36 Stat. 459 (U. S. Oomp. St. 1916, § 5053), provided that an adverse claim “may be filed at any time during the sixty-day period of publication or within eight months thereafter.” The adverse claim was not filed until December 26, 1913. Held, it was not filed within the time required by the statute to suspend the action of the laud office, and the court lost jurisdiction when the time for adverse expired. Judgment for the defendants.</p> <p>2. Mines and Minerals <&wkey;41—Complaint in Adverse Suit.</p> <p>A complaint in an adverse suit regarding a mining claim in Alaska must allege the pendency of the patent proceedings by the defendant and the filing of the adverse by the plaintiff. Such allegations are necessary, that the court may determine . whether or not it has jurisdiction of the cause.</p> <p>3. Mines and Minerals <&wkey;41—Adverse Suit—Pleading.</p> <p>The mere pendency of an action of ejectment at the time patent application is made is not sufficient to suspend the proceedings. An adverse must be filed in the land office before instituting the action, and the filing of an adverse is essential to the sufficiency of the complaint. The allegation of an adverse claim, however, may be made in a supplementary complaint.</p> <p>4. Mines and Minerals <&wkey;43—Patent Proceedings.</p> <p>The title conveyed by a patent to a mining claim relates back to the inception of the right by location, and gold dust extracted during the time becomes the property of one who located and has held continuous possession to patent.</p> <p><§s»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>