Manuel v. Wulff
This was an action in the ordinary form of a contest between two claimants of a quartz lode mining claim upon the lands of the United States to determine the right to proceed in the United States land office for patent therefor. Moses Manuel, defendant below, made application in the land office at Helena, Mont., for a patent for the Marshal Ney lode mining claim, which application Iver Wulff, plaintiff below, adversely contested, basing his contest upon his right to the premises by virtue of their location and possession as the Columbia mining claim. This proceeding was thereupon commenced in the district court for Lewis and Clarke county of the territory of Montana, in accordance cordance with section 2326 of the Revised Statutes.
The title of plaintiff was put in issue by the pleadings, and the defendant filed a counterclaim charging that the Columbia lode location was forfeited by reason of the want of required annual work, and that the ground in controversy was unoccupied public domain at the time of the location of the Marshal Ney. This was denied by plaintiff in his replication.
Upon the trial it appeared that Henry Pflaume, who was a citizen of the United States, located the Columbia lode mining claim July 1, 1882; that November 1, 1885, he conveyed the claim to Fred. Manuel by deed, and that November 30, 1887, Fred. Manuel conveyed the same property by deed to Iver Wulff, the plaintiff; that one Alfred Manuel, who was a citizen of the United States, located the same mining claim under the name of the 'Marshal Ney' (claiming that the Columbia lode location had been abandoned and forfeited for the reason that no work was done thereon during the years 1883 and (1884), and conveyed to Moses Manuel, the defendant, a one-third interest therein October 12, 1885, and the remaining two-thirds October 15, 1887, by deeds duly executed and recorded.
It further appeared that Moses Manuel was born in Canada, and came to this country when about eight years old with his father, who he supposed had been naturalized, and that he was thus a citizen of the United States. But the court held that he was not a citizen, whereupon he was naturalized pending the trial, under the provisions of section 2167 of the Revised Statutes. The district court then nonsuited defendant upon his counterclaim, and did not permit him to proceed with his case, upon the ground that he was not a citizen at the time that Alfred Manuel executed to him the deeds of conveyance of the Marshal Ney lode mining claim and at the time the suit was commenced, holding that the attempt on the part of Alfred Manuel to convey the mining claim operated as an abandonment thereof. Defendant then moved that plaintiff be nonsuited, which motion was denied, but the question raised in respect thereof need not be examined here. Judgment was thereupon given in favor of Wulff, and defendant took the case by appeal to the supreme court of the state (which had been admitted into the Union in the mean time), by which the judgment was affirmed. The opinion of the court will be found reported in 9 Mont. 279, 23 Pac. 723. The case was then brought to this court by writ of error.
John B. Clayberg, for plaintiff in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.