author: MR. JUSTICE MILBURN MR. JUSTICE MILBURN Mr. Chief Justice Brantly: Mr. Justice Pigott: MR. JUSTICE MILBURN

text:
    ANDERSON, Respondent, v. COOK et al., Appellants.
    (No. 1,290.)
    (Submitted March 19, 1901.
    Decided May 6, 1901.)

      Water Rights — Owners in Oommon — Diversion of Water— Sufficiency of Findings — Appeal—Question Considered— Conflict of Evidence — Waiver of Objections — Briefs.
    1. Where the record on appeal does not show what amendment, if any, was made to the complaint, error in allowing it will not be considered. _
    2. Wliere the evidence is conflicting, the findings of the trial court will not be disturbed on appeal.
    3. The defendant in an action for diverting water contended that the reason that the water did not flow in plaintiff’s ditch was due to the improper construction. Findings were made that plaintiff and defendant liad agreed to construct their ditches on a 12-inch grade, and that plaintiff’s ditch was not on a 12-inch grade, and that one point in plaintiff’s ditch was as high as the bottom of the main ditch where plaintiff’s ditch connected therewith, but that plaintiff’s ditch was sufficient to irrigate his land. The findings did not show the grade of plaintiff’s ditch, or that the bottom of the main ditch was not below the agreed grade. The court found that the allegation of the complaint was sustained. Held, that the findings were sufficient to support a judgment for plaintiff.
    4. An owner in common of a water right, who takes water at a main ditch at a point above where the other owner takes water therefrom, is not entitled to withdraw an amount of water in proportion to his ownership of the water right, provided he leaves the proportionate share of the other owner in the main ditch, without regard to the seepage and evaporation of the remainder before it reaches the other owner, a mile distant.
    D. Where assignments of error are not mentioned in the brief of appellant, they will be considered as waived.
    On Motion for Rehearing.
    A brief disrespectful in language and tone to the supreme court will not be considered, and will be ordered stricken from the files and returned to counsel who prepared it.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    Action by Mose Anderson against W. W. Cook and another for the diversion of water. From a judgment in favor of the plaintiff, and from an order denying’ a motion for a new trial, the defendants appeal.
    Affirmed.

      Mr. Ransom Cooper and Mr. W. B. Sands, for Appellants.

      Mr. William C. Downing and Mr. Sam Stephenson, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This is an appeal from the judgment in the case and from an order denying a new trial. It is a suit wherein the plaintiff demands damages from the defendants for injury to his crops on certain lands in his possession, the said injury alleged to have occurred through the wrongful acts of the defendants in the year 1896 in their having checked the flow of the waters in question in a certain common ditch running from a common reservoir belonging to tlie parties to the action. Plaintiff also prays for equitable relief.

It is alleged by the plaintiff, and admitted by the defendants, that they built, owned and held in common a certain ditch running from the said reservoir down to the point at which plaintiff constructed another ditch to cany the waters from the common ditch to his irrigable lands. The complaint alleged that the ditch running from the reservoir and the reservoir itself were owned by the defendants and plaintiff in the following proportions, — that is to say, plaintiff was the owner of a one-third undivided interest in the common ditch and a one-third undivided interest less one-seventh of one-eighth in the said reservoir, and that the defendants owned the remaining interests in the ditch and reservoir; whereas the defendants alleged that they owned fifteen twenty-seconds of the ditch and reservoir. It is alleged in the complaint, and admitted in the answer, that the reservoir and the main ditch at all times during the spring and summer of 1896 contained an abundance of water for tlie irrigation of the lands of the plaintiff and of the defendants. The complaint also stated that the said ditches furnished, and there flowed through them, a large volume of water down to certain head gates on the lands of the defendants, and that at two points on said ditch the defendants, without right, wrongfully, and intending to deprive the plaintiff of the use of said water, which belonged to the plaintiff, and to which he was entitled, and in order to prevent the same from flowing-on through said ditch to plaintiff’s lands, erected head gates at two points on said ditch, and stopped and checked the flow of the water in said ditch, so that the same ceased to flow in quantities sufficient to irrigate any of plaintiff’s crops. It was further alleged that the defendants so* checked the water, and erected said head gates in such manner, as to check and stop the flow of said water wilfully and maliciously, intending to deprive this plaintiff of the same, and without any reason therefor; that the water so checked and stopped in said ditch over-> flowed, and was needlessly wasted upon the lands of the defendants, during the season of 1896, and during this time the plaintiff was deprived of the use of the waters, which were greatly in excess of the water needed and used by the defendants, and which would have been ample and sufficient h> have irrigated the crops of the plaintiff; that, but for the wrongful checking of the flow of said water in said ditch, and the diversion of said water unnecessarily by the defendants as aforesaid, the said waters would have flowed down to his crops, and would have been ample and sufficient; that from the end of the main ditch running from the reservoir plaintiff continued said ditch down to and upon his said lands, and constructed laterals therefrom to and upon the lands sufficient to irrigate all of the said crops; and that by reason of the cheeking and diversion of said waters by defendants as aforesaid his crops were greatly damaged, to-wit, in the sum of $1,300.

The defendants demurred to the complaint, stating, among other things, that the complaint did not state facts sufficient to constitute a cause of action, and that the complaint was uncertain in that it did not state the quantity of water wasted by the defendants, and, further, that it did not state the quantity required by the plaintiff over and above the amount received by him. Subsequently a stipulation withdrawing the demurrer and giving the defendants ten days in which to file an answer was made and entered into by respective counsel, and duly filed in said cause. Thereupon the defendants answered, and denied that the said lands of the plaintiff were deprived of water through any acts, wrongful or otherwise, of the defendants; and denied that they, or either of them, or any one else, constructed two or any head gates on any ditch without right or wrongfully, or with the intention of depriving plaintiff, or any one else, of the use of the water, or to prevent the water from flowing to' plaintiff’s lands or elsewhere. They denied that they, or either of them, or any one else, constructed any head 'gates whatever which could prevent the free flow of water in the plaintiff’s ditch or ditches, and denied that defendants’ head gates, or either ox them, stopped or checked the flow of water from the main ditch to or into plaintiff’s ditch or ditches; and denied that defendants, or either of them, checked the said waters, or constructed said head gates so as to check the water or to stop the flow thereof wrongfully, or maliciously, or otherwise; or that the said head gates, or any act or omission of defendants, or either of them, stopped or checked the flow of said water into plaintiff’s ditch; or that the water so alleged to he checked overflowed or was maliciously wasted upon the lands of the defendants or elsewhere; and denied damage of any kind to the said crops. For further defense they set up that plaintiff’s ditch was not at any time of sufficient capacity toi convey water sufficient to irrigate any portion of plaintiff’s lands, said ditch not being at any time “deep, enough to .enable sufficient water to> flow! through the same” for irrigating any portion of his lands.

Upon the trial of the cause, after the swearing of the jury, upon the offer of evidence by the plaintiff, one M. S. Darling, county surveyor, the first witness, being sworn to testify, the defendants objected to any evidence being received under the1 complaint, for the reason that it did not state facts sufficient which would warrant a court in granting the plaintiff any relief.

In addition to the facts admitted, there is .proof, or evidence tending to prove, that:

The defendants, during the times referred to in the com-, plaint, had two ditches leading from the main ditch, — one 2 feet 8 inches wide by 2 feet deep, and the other 3.5 feet wide by 2 feet deep. About one-half mile down the Anderson ditch from the end of the main company ditch was a high point in the bottom of the said Anderson ditch, this point being higher than a head gate opening into one of the defendants’ laterals; 1.62 feet of water would run over this high point when the ditch was running full. In 1896 the head gate nearest the reservoir was a board across the lateral ditch, with dirt thrown in above it. Plaintiff did not get one-fiftieth of the water which he claimed. During May and June, 1896, there was plenty of water, but plaintiff did not “get any to amount to anything.” The water went through the head gates of defendants. Plaintiff had water only about four days in May and June. After he had 'entered suit, “water came on steady from July 3d to August.” After suit, water came across the high place spoken of from I to 11 inches deep all the time, and 4% feet wide. When defendants “would keep their boards on so water would come through, there was plenty for all.” Water from the ditch stood a foot deep over an area of 10 or 15 acres on the north side of the company ditch on defendants’ land. On July 15th (after plaintiff went to Great Palls to institute suit) plaintiff was getting all the water he wanted, and defendants had their ditch full, and were getting probably three-fourths of the water. About June 10th defendants were drawing the water off on both sides of the main ditch, their laterals being full, and “the main ditch as full as it could get,” at which time' “Anderson was trying to irrigate with no water.” In some places the main, ditch averaged 20 or 25 feet wide. At the lower end it averaged 12 to 19 feet wide. The reason Anderson got no water was that tire main ditch was “that deep that it just simply drew it off.” Anderson built his ditch on the survey of one Arnold. Said Arnold surveyed the Anderson ditch, laying it on a grade of 12 inches to the mile. At least one of the laterals of the defendants had a fall of 1 foot to 1,800 feet. The capacity of the main ditch was 1,348 inches, that of the defendants’ first ditch 518 inches, and of the second 224 inches. The head gates of the two laterals are about one-half mile apart. The capacity of tire Anderson ditch was 383 inches. All of the parties had lands needing irrigation lying under the ditch, and had means of using the water on the crops on said lands, and actually used the same when they could severally get it.

Plaintiff offered to prove that he tendered his services to defendants to build up the levees, but defendants’ counsel objected, and the objection was sustained.

In the course of 'the trial a large number of witnesses were examined, some of them being persons who qualified as having had considerable experience as surveyors, and as users of water for the purposes of irrigation. Numbers of maps were used and appear as. exhibits in this case. Counsel were permitted by the court to' examine these witnesses with special reference to what was shown by the several maps, and in the course of the testimony they frequently made statements that were very material as affecting the rights of the parties, using the maps to illustrate definitely what they meant to say. There is not anything in the transcript to indicate toi this court to what these witnesses referred when using the maps, so that a large part of what may have been very material and convincing evidence in the minds of the jury or trial judge is altogether without meaning to this court.

There was testimony in conflict with many of the alleged facts stated above.

The defendants assign as error the court’s overruling their objection toi the introduction upon the trial of any evidence under the complaint .upon the ground, then stated, that it did not state facts sufficient to entitle the plaintiff to any relief. The complaint is not conspicuous in the history of code pleading as an example to be followed, for it is redundant in many parts, and not explicit enough in others; but we do believe, and therefore hold, after careful consideration, that it does state facts sufficient to admit proof upon which the court, if satisfied of the. truth of the allegations, could afford relief. The complaint was wide open to demurrer for uncertainty, but this ground of demurrer was waived, as before herein stated.

The defendants complain that the court permitted the plaintiff to amend his. complaint after objection to the introduction of any evidence thereunder, after the jury was sworn, and then refused to grant them a continuance of the said cause. It is assumed in the briefs that the complaint was amended, but the record, while showing that permission to amend was given, does not disclose what, if any, amendment was made. We, having no means of knowing whether anything, material or otherwise, was added to the pleadings, cannot consider this assignment of alleged error.

The contention of the defendants upon which they rely in ,the answer was: First, that they did not check the water; and, second, that, if the plaintiff did not get water to irrigate his crops, it was solely because he did not construct his own ditch “properly, and to a depth sufficient to- enable the water to flow through the same .when maintained to a height in the ditch leading out of said reservoir to which it could be maintained with safety, and without overflowing the hanks of said last-named ditch.”

To consider all the thirty-five particulars in which defendants claim in their brief that the decree of the court or its findings are erroneous, would require more space and labor than we think necessary. The main points are that the evidence fails toi support the findings, and that the decree is not supported by the findings; the principal reliance being upon the ground that the evidence does not show that the defendants used more than their share of the water, and that, if they did, the plaintiff was not damaged by their doing so, for the reason that his ditch would not carry water under safe conditions, or conditions that would allow defendants to use the water in common with him. They further complain “because the decree compels the defendants to forego the use of water two days in each week merely because plaintiff will not put his ditch upon established grade.”

As was the case in Carron v. Wood, 10 Mont. 500, 26 Pac. 388, a study of the evidence presented by the record shows that witnesses for the respective parties had made examinations and measurements of the ditches and head gates, and stated to the jury the dimensions and capacity thereof. As it often happens in controversies, there is considerable difference in the statements of witnesses for the respective parties as to the size, capacity, grade and condition of ditches, head gates, and the nature and effect of any obstructions which may be therein.' It was the province of the jury h> pass upon the credibility of the witnesses and the weight of testimony, and to make findings. They did so> and the findings were adopted by the coum It has been often, announced by this court that, when there is evidence to support the verdict or the findings, the same will not be disturbed because there is conflicting testimony upon the subject. The jury and court having found that the co-owners of the main ditch had agreed that plaintiff should put his ditch upon a uniform grade of 12 inches, appellant says that findings 1, 2, 3, 4 and 10 declare that plaintiff did not put his ditch on a 12-inch grade, as agreed, and that, therefore, these findings show that jolaintiff -was the one in fault. To- find that a ditch was not put on a 12-inch grade is not to declare that it was not on a grade of, say, 11.95 inches, or perhaps as much as 25 inches. Finding 2, it is true, states that “there was a point in the bottom of said ditch, about one-half mile east of the main ditch, which was of the same height as the bottom of the main ditch at the lower end of the main ditch where plaintiff takes •out his water;” but there is no finding that the end of said main ditch was not below grade, or that the laterals of the plaintiff were not taken out within the half mile. The court and jury found, besides, that the condition of the plaintiff’s ditch was sufficient to irrigate his crops, and,. further, that, if the •defendants opened their lateral ditches (into which the head gates let the water), this “would have prevented the plaintiff from getting any water at all.”

The court made its further finding “that the allegations of said complaint have been sustained.” We find nothing conflicting in the findings. We cannot say that they do not support the decree.

The parties did not own the water. They had a right to the use of it in common. They did not have a prior right. The defendants assume that’they were at all times entitled to take out two-thirds of the water, provided they left one-third thereof in quantity in the main ditch. This is error. If there were 1,200 inches in the ditch, and they needed and took out 800 inches at, say, a point 100 feet below the reservoir, there would be left 400 inches, one-third of the volume of water, with a journey of more than one mile to- go in warm weather, and over a slow grade, and through a ditch from 144 inches to 228 inches wide, subject to very great loss from seepag’e, evaporation and actual leakage. Tbe slightest knowledge of the laws of nature will convince any reasonable person that the plaintiff would get a very small part of the 400 inches wherewith to1 make his desert lands produce remunerative crops.

Considering the relations of the parties to the contract under which they were to use the water, the findings against the defendants, the evidence in the case, and the obscure nature of the report of the testimony, we cannot say that the court did not do equity in its decree declaring that the plaintiff should-have the sole use of the water during two certain consecutive days of each week. This works no hardship toi the defendants, as it gives them the use of the water more than two-thirds of the time.

In the transcript appears an assignment “that the evidence is insufficient to sustain the finding that the plaintiff sustained $600 damages, or any damages whatever, at the hands of the defendants;” and it is further assigned that “'the decree is against the law, because the damages awarded by the court to the plaintiff are more than three times the amount that plaintiff suffered, under any view of the evidence.” Suffice it to say that each of these assignments is omitted from those relied on or mentioned in the brief of the appellant, and therefore no consideration is, raider the rules, given to either in this opinion.

For the reasons given in this opinion the judgment, decree and order overruling the motion for a new trial are affirmed.

Affirmed.

On Motion for Rehearing.

(Submitted June 3, 1901. Decided June 7, 1901.)

MR. JUSTICE MILBURN

delivered the opinion of the Court.

In the matter of the motion of appellants for a rehearing, the court is of the opinion that the motion should be denied. Examination of the argument of appellants filed with the motion discloses the fact that the language and tone of the brief are disrespectful to this court. It will be sufficient- in this connection to quote the following paragraphs from the brief, to-wit:

“I realize that compared with many of the matters which draw so heavily upon the time and attention of the court that this case is a small one. It is, however, large for the parties interested, and its correct solution means as much or more to them as the proper disposition of the great cases means to the parties interested in them.
“It is of course to be regretted that the record is obscure in some parts, but this does not relieve the court from its obligation to study the record and try to understand it.
“Will the court kindly point out anywhere in the record any evidence which tends to overcome this 'prima, facie case made by plaintiff against himself.
“Now, I do not believe and I cannot believe that this court is ready to establish so absurd a principle of equity jurisprudence as to hold that when defendants hafl need of water and there was abundance in the reservoir and they could fill their ditches and laterals and at the same time let the main ditch run as full as it .could get, that they must stop the use of this water so as toi let plaintiff run water up hill, because he was so shiftless that he would not put his ditch to a proper grade; and yet that is just what this court does say in its opinion.
“T do not believe that this court with its eyes open will perpetrate any such outrage as this.
“I deny the legal or moral right of this court to make the defendants assume the burden of compensating plaintiff for that which has resulted from his own fault, and the last quotation made above from the court’s opinion shows that it has undertaken to do this very thing.”

The only inference possible or proper to be drawn from this language is that it is not respectful. The arguments contained in the brief of counsel are not such as to convince this court that there is any reason why a brief, disrespectful in tone as this is, should be retained in the files and made the subject of further consideration. The brief is stricken from the files and the clerk is directed to return it to counsel for appellants. The motion for a rehearing is denied.

Motion denied.

Mr. Chief Justice Brantly:

I concur.

Mr. Justice Pigott:

I concur with the majority of the court in the order striking from the files the argument in the brief of counsel for appellants on motion for a rehearing, but I do not feel entirely satisfied with the judgment of affirmance and personally should not be averse to hearing the cause re-argued.

Order.

Bansom Cooper, -Esq., counsel for appellants, having made a satisfactory showing to this court that the language used by him in his brief on motion for a rehearing herein, was not intended to be disrespectful to the court-, the order heretofore made striking said brief from the files and denying a rehearing is revoked so far as it denies the motion, the court adhering to the opinion that the said brief was disrespectful in tone; and the motion is permitted to stand for further consideration after said Cooper shall have filed with the clerk and served upon counsel for the respondent, provided he shall do so within seven days from this date, an appropriate brief setting forth his reasons for asking for a rehearing. It is further ordered that this order be appended to the opinion heretofore filed in the matter of the said motion.

Done in open court this 10th day of June, 1901.

Motion for rehearing granted July 18, 1901.

On Eetiearing.

(Submitted October 1, 1901. Decided November 4, 1901.)

MR. JUSTICE MILBURN

delivered the opinion of the Court.

This cause is before us on rehearing. We have again carefully considered the briefs and argument, additional briefs having been submitted. We are more'fully convinced of the correctness of our decision, the reasons for Avhich appear in the opinion rendered May 6, 1901.

It is more apparent uoav, after a rehearing, than upon the first consideration of this case, that the record is so obscure, - and the evidence so conflicting, that Ave cannot say that the evidence does not support the findings which are set out in the judgment.

We again emphasize the fact that Ave have no means of knowing how material the evidence Avas Avhich was given by those witnesses avIio referred to certain maps in such a way, indicating one unmarked point and another, that one cannot get any idea of their meaning in respect of such evidence.

The judgment and the order denying a neAv trial are affirmed.

Affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    MENDENHALL et al., Respondents, v. LYON et al., Appellants.
    (No. 1,337.)
    (Submitted May 15, 1901.
    Decided May 15, 1901.)

      Appeal — Briefs—Affirmance.
    Where no brief is filed and submitted to the appellate court, nor any oral argument made pointing out any of the matters on which appellants rely for relief, the judgment will be affirmed.

      Appeal from District Court, Park County; Prank Henry, Judge.

    Action by Susan A. Mendenhall and another against Gr. M. Lyon and others. Erom a judgment in favor of plaintiffs, defendants appeal.
    Affirmed.

      Messrs. Campbell & Stark, for Appellants.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

Appeal by the defendants from a judgment and an order denying them a new trial. No brief has been filed and submitted in this court, nor has any oral argument been made pointing out any of the matters upon which the appellants rely for relief. The judgment and order are therefore affirmed, on the authority of Killhonic v. Nuss, 24 Mont. 292, 61 Pac. 648.

Affirmed.


author: MR. JUSTICE MILBURN Mr. Chief Justice Brantly: Mr. Justice Pigott

text:
    BUTTE HARDWARE CO., Appellant, v. FRANK et al., Respondents.
    (No. 1,325.)
    (Submitted April 18, 1901.
    Decided May 27, 1901.)

      Mines — Patents — Judgments—Liens—Unpatented Claims— - Abandonment — Pleading—Quitclaim Deed — Appeal.
    1. An unpatentecl mining claim being real estate, a judgment lien attaches, to it, under Code of Civil Procedure, Sec. 1197, declaring that from the time a judgment is docketed it becomes a lien on all real property of the judgment debtor.
    2. A judgment lien on an unpatented mining claim is not lost by the transfer in writing of the claim by the judgment debtor, on the ground that such transfer is an abandonment thereof, since the transfer in writing of an unpatented claim does not amount to an abandonment.
    3. Rev. St. U. S. Sec. 2332, declares that nothing in the chapter of the Revised Statutes relative to the locating, holding or procuring of titles to mining claims and to adverse claims, etc., shall be deemed to impair any. lien which may have attached in any way to any mining claim prior to the issuance of the patent. Held, that a judgment creditor having a lien on an unpatented mining claim was not obliged to adverse the claim of the locator under the United States statutes providing for the filing of adverse claims against one seeking a patent for a mining claim on the public domain. But after execution levied and officer’s deed made and delivered, the purchaser should adverse, because the lien is gone as a lien.
    4. A quitclaim deed implies a doubtful title in the grantor, and it should not be held to pass anything more than a doubtful title.
    5. A complaint alleged that plaintiff had a docketed judgment against R., and that certain unpatented mining claims were conveyed by deed absolute from D. to R., who on the same day gave a quitclaim deed to h\, and that the property was sold to plaintiff at judgment sale. If. was in the possession of the property at the time the quitclaim deed was made. J-Ieldj that there being neither an allegation that R. ever owned any of the property, nor that If. ever got any property or title from him, and there being an implication of doubt as to the title from R., owing to his having given a quitclaim deed to one in possession, the complaint -was insufficient to sustain a suit on the theory that the judgment sale of the land to plaintiff transferred to him title to the claims.
    «6. If the act of the trial court in sustaining a demurrer was right, such act must, on appeal, be sustained, notwithstanding the trial court may have, in sustaining the demurrer, done so for a wrong reason.
    7. A judgment may be affirmed for a substantial defect in the complaint, although counsel in their briefs and arguments are silent as to such defect (Mr. Justice Pigott dissenting).

      Appeal from District Court, Silver Boiu County; John Lindsay, Judge.

      Suit by tlie Butte Hardware Company against Henry L. Frank and others. From a judgment in favor of defendants, plaintiff appeals.
    Affirmed.

      Mr. F. T. McBride and Mr. Bernard Noon, for Appellant.

      Messrs. Campbell & Parr, for Respondents.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This case comes before this court upon the appeal of the plaintiff from a judgment entered after the sustaining of a •demurrer to a complaint, the ground of said demurrer being that the pleading did not state facts sufficient to* constitute a •cause of action. The plaintiff elected to abide his complaint, and a judgment was entered for the defendants.

Appellant declares that the questions raised by respondents in the lower court are: First, “Does the lien of a judgment attach to an unpatented mining claim under the statutes of Montana, which provide that a judgment becomes a lien upon all the real property of Hie defendant from the time of the docketing thereof?” and, second, “If it does, is such a lien an adverse claim, within the meaning of the United States statutes providing for the filing of adverse claims in the land office against one seeking a patent for a mining claim on the public •domain ?” Counsel for the respondents in their brief declare that they do not consider either of the foregoing questions of importance in the case, and therefore refrain from discussing them. They hold that the question to be considered by this court is, “Does a judgment rendered against a locator or a holder of a possessory title to an unpatented mining claim attach to tho government’s title, where the locator has only the right to purchase from the government of the United States upon certain conditions, where he has.failed to exercise that right, and has abandoned the same by conveying his possessory right to another ?”

The complaint sets up: that the plaintiff is a corporation organized under the laws of the state of Montana; that a judgment was duly procured and entered in the district court of Silver Bow county in favor of the plaintiff on September 6, 1890, in the sum of $922.02 with costs, against the firm of Gordon & Ritchie; composed of John A. Gordon and Frederick Bitchie, said judgment having been duly docketed on September 17, 1890; that on May 18, 1895, a writ of execution was issued and by the sheriff levied on certain lands described in the complaint, said laaids being levied upon as the lands of the said Bitchie; that on the 10th day of June, 1895, the sheriff sold all right, title and interest of the said defendant in said lands; that the plaintiff was the highest bidder, and became the purchaser thereof; that a certificate of sale was executed and delivered by the sheriff to> the plaintiff, and was duly recorded in the office of the clerk of Silver Bow county; that there was no' redemption, and the sheriff executed and delivered to the plaintiff (it being still the owner of the said certificate) on July 30, 1896, a deed of conveyance of the premises in question; that said property consisted of an undivided one-half interest in the John the Baptist lode, an undivided one-half interest in the Silver Moon lode, all of the Evangelist lode, all of the Mascot lode, all of the Copper Trust lode, and an undivided one^sixth interest in the Eddie lode, situate in said county; that, after the docketing of the judgment one Paul ¿V. Davis “conveyed by deed absolute to the defendant Frederick Bitchie the herein-described premises on May 21, 1891, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining;” that “thereafter, to-wit, on the 21st day of May, 1891, the said defendant Frederick Bitchie conveyed by quitclaim deed all his right, title and interest to the above-described premises to the defendant herein, Henry L. Frank;” that at the time of the purchase of said preanises by the said Bitchie, and the transfer by him to Frank, the same were unpatented mining claims; “that thereafter, and while the lien of this plaintiff’s judgment hei'einbefore alleged was still a valid and suN sisting lien upon said premises, the defendant herein, Henry L. Frank, secured patents from the Hnited States government for said unpatented mining claims as follows, to-wit: Evangelist> August 19, 1893; Mascot, August 19, 1893; John the Baptist, August 19, 1893; Silver Moon, December 21, 1893; Eddie, February 21, 1895 ; Copper Trust, August 19, 1893.”

The complaint further states that on October 23, 1896, the defendant Frank conveyed by quitclaim deed a certain interest in the Copper Trust claim (describing it) to the defendant John S. Clapp; that on the same day said Frank conveyed to F. IT. Symons, by quitclaim deed, all his interest in and to a certain portion of the surface ground of the Copper Trust claim (describing it) ; that “the defendants herein, Henry L. Frank, John S. Clapp and F. II. Symons, are, and have been at all times hereinbefore mentioned, in connection with the said defendants, in possession of and control of tire heretofore described premises; that they claim the same adversely, and withhold the same wrongfully and unlawfully and illegally from this plaintiff; that the said claims of the said defendants ■ are adverse to the rights of this plaintiff, and operate as a cloud upon the title of plaintiff, which, unless removed and possession given to plaintiff, will in time ripen into title by adverse possession ;” that plaintiff at all times “since the execution of the said sheriff’s deed to plaintiff on the 30th day of July, 1896, has been the sole and unconditional owner in fee simple of the said premises herein described, and entitled to the use, benefit and enjoyment of the same, and that it has never parted with the same, or any portion thereof;” that the defendants claim title to said premises by reason of said patents secured by the defendant Henry L. Frank, and the conveyances of Frank to the defendants Clapp and Symons; that defendants further claim that plaintiff is forever barred and estopped from claiming or asserting any right,.title or interest in or to the said premises, by reason of its failure to. file any adverse claim to the application of said Henry L. Frank for a patent to the premises at the time ho secured the said patents; that plaintiff claims title to the said premises by reason of tire sale and the execution of the sheriff’s deed as aforesaid; that on May 21, 1891, said judgment became and was a lien upon said property; that the lien of its jirdgment was preserved by Section 2332 Bev. St. 11. S..; and that plaintiff was not required to assert an adverse claim against the alleged application of Frank for a patent. Plaintiff prays that the lien of said judgment may be adjudged and decreed as a valid and subsisting lien upon, the property in controversy at the time of said sale, that the sheriff’s deed be declared to have passed the title in fee to said premises, that plaintiff be declared the sole owner as against the said defendants, and that the claims of'the' defendants be declared to be void as to the plaintiff. Plaintiff further prays that it be awarded the possession of the premises free from all claims and demands of the defendants, or those claiming under them, and for further relief. The demurrer was submitted without argument.

The question of whether a judgment lien attaches to* an unpatented mining claim is new to this jurisdiction, and is not devoid of difficulty. Section 1197 of the Code of Civil Procedure provides that, “immediately after filing the judgment roll, the clerk must make the proper entries of the judgment under appropriate heads, in the docket kept by him; and from the time the judgment is docketed it becomes a lien upon' all real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterward acquire, until the lien ceases. The lien continues for six years, unless the judgment be previously satisfied.” Is an unpatented mining claim real property of the owner? This question must be answered in the affirmative. There is no need to argue this point, as it seems to be settled by authority that unpatented mining claims are real estate1. (Robertson v. Smith, 1 Mont. 410; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280; Tibbitts v. Ah Tong, 4 Mont. 536, 2 Pac. 759.) They are property in the fullest sense of the word. They may be sold, transferred, mortgaged and inherited without infringing the title of the government. They may be sold to enforce a lien for taxes. (Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; State ex rel. Baker v. Second Judicial Dist Ct., 24 Mont. 330, 61 Pac. 882.) We cannot do else, in the light of authority, than hold that unpatented mining claims are real estate, and that therefore a judgment duly docketed as provided in Section 1197, supra, is a lien upon them, with all other real estate belonging to the judgment debtor.

The point is raised by respondents that a judgment, if a lien, would not be such after sale of the mining claim, — he giving up possession to the vendee, — for the reason that such sale would be an abandonment, and all his rights would be gone, and the lien with them. In support of this position counsel cite Murley v. Ennis, 2 Colo. 300, which declares that title by location may be lost by abandonment, and that if, without writing, he yield up the possession to another, “the right of the first occupant is gone by abandonment, and by virtue of his occupancy a new right has arisen in him who succeeds.” It is to be noted that the transfer is said to be abandonment if made luithout writing. The alleged transfer from Ritchie to Erank was in writing; hence the authority does not fit the averment of the complaint. Respondents also cite Derry v. Ross, 5 Colo. 295, but we find nothing in that case to support the contention that a conveyance to another works an abandonment; for the court holds that mining claims are “rights which may be devested by sale, gift or abandonment.” This language is very far from a statement that a sale is an abandonment, but is very strong in its implication that it is not.

Section 2332, Rev. St. U. S., clearly contemplates the buying and selling of mining claims, as it provides that, upon application for patent, evidence may be offered to show the possession of and work done by the applicant’s grantors. It would be absurd to permit sales for the benefit of the vendees, and then declare such sales proof of abandonment of all rights of the grantor.

Should a judgment creditor adverse the application of the judgment debtor or his grantee for a patent? We think that there is neither law nor logic suggesting such a tiling. In Hamilton v. Southern Nev. Gold & Silver Mining Co. (C. C.) 33 Fed. 562, 13 Sawy. 113, 117, it was held that the interest obtained by a purchaser at a constable’s sale prior to the time of expiration of the publication of notice is an adverse claim, which, unless filed as the law requires, is waived; but the very reason given for this is the reason why a lienor, merely, cannot adverse. The purchaser at the execution sale has stepped into the shoes of the judgment debtor, the owner of the claim; and if the sale be valid he can go on to perform the work and other things necessary to be done, pay the purchase money, contest the rights of other claimants and procure the title from the government, which does not pass by virtue of the officer’s deed. Such deed from such officer, selling on execution, passes only the present interest, and not an after-acquired title, and can only have the effect of a quitclaim deed in its strictest sense, lienee^ if he have such deed, he must adverse. If he have merely a judgment lien on all the realty of the debtor, he cannot adverse, because ho is not yet in the place of the debtor, and, further, because the lien continuing will be a lien on the realty of the debtor after as well as before patent, — no more, no less. In case of a special lien, such as a mortgage, the lienor need not adverse the debtor’s claim to a patent, as the patent will inure to his benefit. (Lindley on Mines, 719.) The same reason will, we think, apply to a judgment lien1; and, further, such lien, doubtless, is included within the provisions of Section 2332, Rev. St. U. S., which declares that nothing in the chapter of the Kevisecl Statutes which relates to the location, holding and procuring title to mining claims and to adverse claims, ■etc., shall be deemed to impair any lie® which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of the patent. After execution levied and officer’s deed made and delivered, the purchaser should adverse, because the lien is gone as a lien. Before such deed made and delivered, no adverse claim may be made.

We come now to the consideration of the point made by respondents’ counsel: “Does a judgment rendered against a locator or a holder of a possessory title to. an unpatented mining claim attach to the government’s title, where the locator only has the right to purchase from the government of the United States upon certain conditions, where he has failed to exercise that right, and has abandoned the same by conveying his possessory right to another?” This question is petitio principii. It begs the question, for that it assumes that conveying one’s possessory rights is abandonment, which, as we have heretofore shown, is not the case.

The question in this cause is this_: Did Ritchie own’ and convey valid mining claims to Frank by his quitclaim deed, and did Frank prove up on those claims so conveyed to him, and get patents therefor; his right to patents depending, in whole or in part, upon any rights of Ritchie actually conveyed to him by said quitclaim deed ? If he did, he bought and took the claims with all the disabilities of the grantor attaching thereto; that is, he bought real estate from the owner, against ■whom there was a valid, docketed and existing judgment in the district court, and the patent, would inure to the benefit of the judgment creditor, and the sheriff’s deed, after execution sale, would convey title to the purchaser.

But does the complaint state facts showing such a case as last referred to ? The counsel for plaintiff proceeds upon the theory that Ritchie was the owner of said claims; that Frank took title from Ritchie; that Frank had patented certain mining claims located by Ritchie or some predecessor of his, his right to patents depending upon the acts of Ritchie and his predecessor; and that plaintiff is the owner by and through the sheriff’s deed.

The amended complaint does not thus state. It does not reasonably imply that these alleged facts are true. The statement that Davis conveyed by “deed absolute” to Ritchie, and that Ritchie conveyed all his interest by quitclaim deed to Frank, is not a statement that Davis or Ritchie owmed the property or any interest therein, or even located or represented it or any part thereof. The deed of Davis might estop him from denying-that he had sold the property to Ritchie, but h© is not a party to this action. Certainly an admission by Frank, if such should be made, that Davis made a deed of conveyance — a “deed absolute” — to Ritchie, and that Ritchie made a quitclaim deed to him (Frank) ■ would not be an admission that Davis was the owner when he conveyed to Ritchie, or that Ritchie owned said property when he (Ritchie) made the quitclaim deed. A quitclaim deed implies a doubtful title in the grantor, and, such being its character, it should not be held to pass anything more than a doubtful title. (9 Am. & Eng. Erne. Law, 2d Edition, 106, note; Kerr v. Freeman, 33 Miss. 292; Emmel v. Headlee (Mo.) 7 S. W. 22.) In Anderson v. Thunder Bay River Boom Co., 57 Mich. 216, 23 N. W. 776, it was held that a quitclaim deed from a party not shown to have been in possession at the time it was executed is no evidence of a title, — much less when the party claiming under! the deed was already in possession of the land at the time that the deed was given. There is nothing-in the amended complaint in the case before us to show that Ritchie — or Davis, even — was ever in possession; but there is a statement in the amended complaint that Frank was in possession and control of said claims at -the dates connected with him in said amended complaint, and the date of Hie quitclaim deed (May 21, 1891) certainly relates to him as well as to the grantor, so that he must have been in possession and control of the property when the quitclaim deed was made, so> that, as said in Anderson v. Thunder Bay River Boom Co., supra, the quitclaim deed was no' evidence of title conveyed to Frank.

It cannot be held that in Montana an after-acquired title relates back to a quitclaim, and passes to the grantor in it, if the grantor had no equitable title at the date of the quitclaim deed. How, then, can it be reasonably inferred that, if Frank got a patent^ it inured to the benefit of Ritchie’s judgment creditor, when it -would not even presumptively appear that, if it -were in the amended complaint alleged that a patent for tlio land liad been issued to Ritchie, it would convey the title to Frank ? There is no allegation or presumption that Ritchie had the legal or equitable title at the date of the quitclaim deed.

To conclude as to this point, there is neither an allegation that Ritchie ever owned any property on which the judgment was a lien, nor an allegation that Frank ever got any property or title from, by or through him; but, on the contrary, there is implication of doubt as to his title from Ritchie’. To allege that Frank took a quitclaim deed while he was in possession and control of the property does not reasonably rebut the idea that he owned the claim as a locator or as assignee of some locator (not Ritchie), and that ho procured a patent upon such ownership. It is not unreasonable to conclude from the' amended complaint that Frank, in order to prevent the annoyance of a contest in the United States land office, procured such quitclaim deed. The allegation of plaintiff’s ownership ever since the sale by the sheriff is no more than a statement that it owns whatever property was actually acquired by and through such sale, ■whereas, as we have seen, there isno averment that Ritchie had ever any to sell either to Frank or through the sheriff. It must clearly appear from the complaint that the plaintiff -has a right to the thing demanded, or such an interest in the subject-matter of the action as will authorize him to bring a suit concerning it. Failing in this, a general demurrer to the bill for want of equity will lie. (6 Enc. PI. & Prac. 400, and cases cited.)

Where a seasonable attack is made upon the complaint for want of substantive’ allegations, the court should indulge1, as against the pleader, the presumption that he has stated his case as strongly as he can. (Conrad Nat. Bank v. Great Northern Ry. Co., 24 Mont. 178, 61 Pac. 1.)

The amended complaint does not state1 facts sufficient to warrant the court in affording relief. The demurrer having been submitted without argument, we cannot tell upon what ground the court sustained it; and it does not seem that, counsel are agreed upon the points upon which the controversy turned, or upon which it is before us on appeal.

Counsel seem to assrune in their briefs that certain averments therein are contained in the complaint; that is, allegations setting up that Frank got the property from Ritchie, — proved up and got his patents by and through Ritchie’s quitclaim deed, and title conveyed thereby. But there .arel no such averments. This case is before this court on appeal from the judgment, which judgment was on demurrer sustained to the amended complaint for want of substance; plaintiff abiding its complaint. The court was right in its decision on the demurrer. The judgment is right, and must be sustained. The court may have, in sustaining the demurrer, done so for a wrong reason, but we have nothing to do with its reasons. Our duty is to pass upon the correctness of its action. If the act of the court in sustaining the demurrer was right, the court must be sustained. (Ilayne on New Trial & App. p. 839.)

The silence of counsel as to the defects found by this court in the said complaint cannot in such a case as this be regarded as a restriction upon the legal scope of the general objection raised by the demurrer.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly:

I concur.

Mr. Justice Pigott

(dissenting) : I concur with the majority of the court in holding that an unpatented mining claim is real property subject to the lien of a docketed judgment, that the holder of such a lien is not am adverse claimant within the meaning of congressional legislation, and that the conveyance of an unpatented mining claim is not an abandonment. The complaint is, I think, defective in the particulars adverted ¡:o in the opinion, and, if they had been pointed out or even suggested in this court I should not hesitate to concur in the judgment of affirmance, But neither party has suggested that the complaint is wanting in substance because the allegations which this court deems necessary have been omitted therefrom. In their briefs and arguments counsel do not intimate that the complaint is insufficient for want of the averments mentioned, ■ — on the contrary, all the arguments are devoted to the question whether the complaint in other respects fails to state facts sufficient to constitute a cause of action. So far as the present appeal is concerned, this court should, I think, examine the complaint for thel purpose of determining whether it is obnoxious to the specific objections urged, and should not affirm the judgment below upon a point not made, but practically waived, in this court. It would be eminently just,and proper in reversing the judgment to call attention to the seeming defect, so that upon remand appropriate steps might be taken, the complaint being susceptible of amendment according to- the facts. But the complaint is now held to be insufficient, and the judgment is affirmed, because of a defect not relied upon by the respondents. It is true that in Wilson v. Harris, 21 Montana, 374 (54 Pac. 46), a complaint was declared to be insufficient upon a ground not specifically relied on by the defendants; but that was a very different case from the one at bar, and there the judgment was reversed and a new. trial ordered on appeal by the defendants, thereby affording an opportunity for amendment.

I am therefore constrained to dissent from Hie judgment of affirmance.


author: MR. JUSTICE PIGOTT

text:
    STATE ex rel. DONOVAN, Attorney General, Plaintiff v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.
    (No. 1,673.)
    (Submitted May 10, 1901.
    Decided June 3, 1901.)

      Wills — Contest—Filing—Leave of Court — Necessity—Fsclieot —Bight of State.

    1. Grounds for contesting a will, wliich were filed before the date to which the hearing of the petition for probate had been postponed, were in time, though the time originally fixed by the court within which objections might be filed had expired.
    2. Code of Civil Procedure, Sec. 589, providing that any person, before trial, may intervene in an action by filing, by leave of court, the grounds of the intervention, does not apply to the filing of grounds for contesting a will.
    3. Under the Codes of 1895, a proceeding by the attorney general to reduce jiroperty to his possession, or a proceeding by him in the nature of an inquest of office to determine whether the state has title to lands, may not, in any event, be commenced within five years after the death of the decedent.
    4. To entitle a person to oppose a testamentary paper under Section 2329 of the Civil Code, it is sufficient if-he disclose the existence of a contingent interest.
    5. Civil Code, Sec. 1852, Subd. 8, provides that if an intestate leaves no heirs, his estate escheats to the state; and section 2329 authorizes any person interested to contest a will. Held, that, where a testator died ' without heirs, the state was entitled to contest a proposed will, since it was an interested party, within the meaning of the Code.
    6. Civil Code, Sec. 18G7, provides that no resident foreigner can take by succession unless he appears and claims such succession within five year& after the death of the decedent to whom he claims succession ; and section 18G8 declares that, when succession is not claimed as provided in the preceding section, the district court must direct the attorney general to reduce the property to the possession of the state, and that the proceeds thereof must be deposited in the state treasury, to be paid to a nonresident alien whenever, within five years after such deposit, he shall prove that he is entitled thereto. Code of Civil Procedure, Part II r, Title VIII, authorizes the attorney general to file an information on behalf of the state requiring all persons interested in an estate to appear and show cause why the same should not vest in the state. Held that, where a testator had no resident heirs, the state was entitled to file objections to the probate of the will before the expiration of five years from testator's death; otherwise the right to contest would be barred by Code of Civil Procedure, Sec. 23GG, making the probate of a will conclusive if not contested within one year.
    Mandamus by the state, on the relation of Janies Donovan, attorney general, against the district court of the Second judicial district of the state of Montana and E. W. Harney, one of its judges. Motion by defendants to quash an alternative writ.
    Motion denied, and peremptory writ granted.

      Mr. James Donovan, Attorney General, and Mr. Peter Breen, for Delator.

      Mr. J. B. Dennis and Messrs. Roote & Clark, for Defendants.
    The state of Montana is not entitled to' take possession of the estate of a decedent until five years after his death. (2d Vol. Code (Mont.) See. 1867.) Nor can the attorney general mince the property to possession until after that time. (2d Yol. ('ode (Mont,) See. 1868; 2d Yol. Codo (Cal.) Sec. 1405.) Tlio estate does not. really escheat until ten years after decedent’s death. (Id. Sec. I860; Id. Sec. 1406; Presumptions Vol. 3, Code California, Sec. 1963, Snbd. 28; Presumptions Yol. 3, ('ode Montana, Bee. 3266, Subd. 28.) The statutes of Montana prescribe and this court has distinctly held that an intervener must first obtain permissioii of the court before he can be heard. (Code of Civil Procedure, See. 589; Deitrich v. Steam Dredye, 14 Mont. 261.) Had the “objections” of the attorney general been filed with the court’s permission, we contend that the state of Montana could not contest the validity of the will until the expiration of five years after Colbert’s death. If there were heirs or legatees, the law gives them the solo right of such a contest. (Franke v. Shipley, 29 Pae. 268.) The law presumes that a citizen dying intestate had heirs. (Wilbur Tobey, 16 Pick. 177; People v. Poach, 76 Cal. 294.) And this presumption continues in this state for five years after death. (Civil Code, Secs. 1867-1808.)
    The attorney general cannot contest the validity of a will until there has been an inquest of office in the manner directed by Section 2250 et seq. of the Code of Civil Procedure of the Statutes of Montana, and Section 1S68 of the Civil Code. And this suggestion is sustained by the following authorities: People ex rel. Alty-GenH v. Roach, 76 Cal. 294; State v. Smith, 70 Cal. 153; People ex rel. Atty.-Genl v. Folsom, 5 Cal. 374; Frank v. Shipley, 29 Pac. Rep. 268 (from Supreme Court of Oregon, March 4, 1892) ; Wilbur v. Tobey, 33 Mass. (16 Pick.) 177; Iloff v. State, 72 Texas 281 (also reported in 10 S. W. Rep. 589) ; Jackson v. Adams, 7 Wend. 367; Rubeck v. Gardner, 7 Watts (Penn.) 455; Crawford v. Commonwealth, 1 Watts (Penn.), 480; Political Code, Sec. 463.
    We urge that it is unnecessary in the determination of !he question raised by the attorney general’s brief (i, e., can the state of Montana become seized at once, under any circumstances, of the property of a person dying intestate?), to lojk beyond our own constitution and statutes and tbe decisions of tbe Supreme Court of California construing the laws of California, from which ours are borrowed. In adopting the statute of another state we adopt the construction placed upon it by the courts of the state from which the statute is borrowed. (.Stackpole v. Hallaban, 16 Mont. 40; Murray v. Heinze, IV Mont. 353; State v. O'Brien, 18 Mont. 1; State ex rel. Milstcd v. Butte City Water Co., 18 Mont. 199: Lar gey v. Chapman, 18 Mont. 563.)'
    The attorney general adverts to the well known doctrine that till© to property must always be vested somewhere; that it cannot remain suspended in the air. This might avail him in this ease if it were true, as he seems to think, that Colbert died wilhout heirs. This, however, is impossible. It is a presumption of law that every intestate has left some one on earth entitled to claim as his heir, however remote. (Code of Civil Procedure, Sec. 3266, Subd. 28; Abbott, Trial Evidence, 2d Ed. p. 110.) In every provision of our Codes relating to the administration of estates and germane to the subject this presumption is indulged. These provisions are numerous. (People v. Roach, V6 Cal. 29V.) The title to the property left by Colbert at the time of his death could not therefore have vested, as urged by the attorney general, in the commonwealth immediately upon Colbert’s death. The attorney general cannot say that there ara no heirs; it cannot be proven that there are no heirs. The law presumes otherwise. And even if it were possible that Colbert died without heirs, this fact cannot possibly be proven. The commonwealth is not a party interested in the estate, and for this reason cannot, as we think, contest the will offered for probate. “Any person interested” has been defined to mean a. person having a pecuniary or property interest in the estate. (Estate of Sanborn, 98 Cal. 103 ; McDonald v. White (111.), 22 N. E. 600; Estate of Parsons, 65 Cal. 240; Hickman's Estate, 101 Cal. 612, 36 Pac. 118; Franke v. Shipley (Oregon), 29 Pac. 268; Estate of Healy, 122 Cal. 163, 54 Pac. V36.)

      The statute does not give the commonwealth the right to contest wills. Section 2329 of our Code of Civil Procedure prescribes who may appear and contest wills. We urge that no. others may appear. The state is not mentioned as one who may appear and contest a will, but only “parties interested,” which means those having’ a pecuniary or property interest in the estate. The commonwealth of Montana cannot have any pecuniary or property interest in the estate of Colbert. There are heirs . It cannot be said at this time that they will not appear within the time allowed them by law and claim the estate to which they are entitled. If the state ever acquires any interest whatever in Colbert’s estate, it will do so by reason of the fact that the heirs who, as we have seen, do exist, fail to appear within the time allowed by law to claim the estate. {State v. Smith, 10 Cal. 156.) It is clear by the decision just cited that the commonwealth does not acquire any interest whatever in the; estate of a deceased person at the time of his death, and we cannot presume that those: vdio are interested in the estate and who have the right to succeed to it by inheritance will not appear and set up their claims. It cannot be urged either that the state, though having no interest now, may acquire an interest at some future time by the failure of heirs to appear and claim the property. Under a statute similar to ours it was held in Illinois that a will could only be contested by persons interested at the time. {McDonald v. White, 22 N. E. 600.)
    If we are justified in insisting upon a strict construction of Section 2329 of out Code of Civil Procedure, where it is provided that “any person interested” may appear and contest 'wills,, wo contend that, this excludes all persons who are not interested in the estate from appearing and contesting wills offered for probate. The maxim expressio unius est exclusio alterius governs. (Sunderland on Statutory Const. Sec. 321.)
    We agree with the attorney general that the freehold must always vest somewhere; that it cannot remain suspended in the air; but disagree with him in the present instance as to whether or not tlic freehold is vested in the commonwealth, and confidently urge that it is not vested in the commonwealth, but- is vested in either the heirs of the estate, which, as we have seen do exist and which fact cannot be controverted, or else is vested in the devisees and legatees named in the will offered for probate, which is true if the will is genuine: If the will, offered for probate is in fact the lawful will of the deceased, then the freehold vested instantly upon his death in the devisees named therein. (Otto v. Doty (Iowa), 15 N. W. 518; Olleman v. Kilgon (Iowa), 2 N. W. 612.) The provision of the statute that “any person interested” may appear and contest the will excludes all persons who are not interested. There is no exception in favor of the state. She canno-t invoke her prerogative in this matter. The state has iu> interest and in> right to interfere by any proceedings until after five years have expired. Even then the state can only proceed in the manner pointed out by the statute; the proceeds of the estate are then to be paid into the treasury and must remain there for another period of five years, within which the heir can come in and present Kis claim. Only after the expiration of this extended period does the right of the estate begin to operate. We think that, the case of People v. Rodgers, 13 Cal. 159, is conclusive on this proposition and renders further argument unnecessary.
    The attorney general, states in his brief that any interest, however slight, is sufficient to entitle one to contest a, will. His difficulty and his error are in confounding the possibility of an interest at some time in the future Avitli a slight interest. We concede that a person, the Araluo of tvhose interest in an estate amounts to but one dollar, is as much entitled to contest a will offered for probate as one, the value of ivliose interest amounts to one thousand dollars. The case cited by the attorney general on this point, viz., St. John's Vestry Ar. Bostuñclc, 8 D. C. App. 464, is against the great Aveight of authority and does not govern in this case. (McDonald v. White (111.), 22 N. E. 600 ; Franke v. Shipley (Ore.), 29 Pac. 268 ; Shepard's Estafe, 110 Pa. St. 323, 32 Atl. 140; Cochran v. Young, 104 Pa. St. 388; Lockard v. Stephenson (Ala.), 24 So. 996; Storrs v. St. Luke's Hospital, 75 111. App. 152, 72 Ain. St. 211; Estate of Mealy, 54 Pac. 736, 122 Cal. 162; Fallon x. Fallon, 107 Iowa 122.)
    The attorney general urges at great length that inquest of office is not necessary to pass title to the state. Again we must express surprise at his total disregard of the statutes of Montana. Sections 2250 to 2253, inclusivo, of our Code of Civil Procedure, provide the manner of conducting proceedings relative to escheated estates. The question of the escheat of a decedent’s, property for nonexistence of heirs can be- determined only by the method provided by the statute. {Muir v. Thomson, 28 S. C. 499.) It must be established by a judicial proceeding’ in, the proper court in the name of the people, for the purpose of proving and establishing it by judicial determination- {Wallahan x. Ingersoll, 117 111. 123.) The proceeding is in the nature of an inquest of office and the record of it is the only competent, evidence by which a title to escheat, can be established. {Men v. O'Hanlon, 21 N. J. L. 582; Crane x. Ileeder, 21 Mich. 24; Commonwealth x. Ilite, 29 Am. Dec. 226; People x. Folsom, 5 Cal. 373.) Where the statute requires proceedings in the nature of an inquest of office, the record thereof is the only evidence by which title by escheat can lie established by the state. {Wallahan x. Ingersoll, 117 111. 123.) Inquest of office is necessary when required by statute, and until inquest, of office, no title passes to the commonwealth. (People x. Roach, 76 Cal. 294; State x. Smith, 70 Cal. 153.)
    The doctrine that one who does not have a pecuniary interest in the estate cannot contest a will offered for probate is supported in the following cases: Creran x. Williams, 34 N. E. 467; Jele v. Leniburger (111.), 45 N. E. 279; Wilcoxon v. Wilcoxon (111.), 46 N. E. 369; Lewis x. Cook (N. Y.), 44 N. E. 778; Lockard v. Stephenson (Ala.), 24 So. 996; Shepard’s Estate 32 Atl. 1040; In re Brown, 47 Hun. 360; Stewart’s Estate (Iowa), 77 N. W. 574; Meyer x. Fogg (Ela.) 68 Am. Dec. 441, and note; In re Fallon’s Will, 77 N. W. 575; Mid,

      dledith v. Williams, 47 N. J. Eq. 585, 21 Atl. 290; Maurer, v. Naill, 5 Md. 324; Storrs v. St. Luke’s Hospital, 75 111. App. 152, 72 Am. St. 211; Franjee v. Shipley, 29 Pac. 268; McDonald v. White (111.), 22 N. E. 600; McChutchen v. hoggins, 19 So. 810; Murry y. Hennessy, 67 N. W. 470; Taff v. Hosmer, 14 Mich. 249 ; Hopf y. State (Tex.), 10 S. W. 5S9 ; Estate of Parsons, 65 Cal. 240; In re Hickman, 101 Cal. 612; Sanborns Estate, 98 Cal. 103; In re Welch, 106 Cal. 429; Estate of Badfield, 116 Cal. 643 ; Estate of Ilealy, 122 Cal. 163.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The object of this proceeding is to obtain a writ of mandate requiring the defendants, the district court of Silver Bow county and E. W. Harney, one of its judges, to restore to the files certain grounds of opposition to the probate of the will of one Charles Colbert,' deceased, and to hear and determine them.

The affidavit in support of the application for an alternative writ and the answer of the defendants show these facts: On February 14, 1901, Charles Colbert died in the county of Silver Bow, Montana, leaving an estate therein of the value of $50,-000 or thereabouts. On February 21, 1901, one Woolbeater filed in the district court of that county his petition for the probate of an alleged will of the decedent, dated February 11, 1901, in which Woolbeater and one Lippincott were named as legatees and devisees, and for issuance to Woolbeater of letters testamentary. The petition was set for hearing on March 9, but was thereafter postponed to April 9, 1901. In, the meantime, on April 3d, the attorney general of Montana (the county attorney of Silver Bow county being associated with him) for and on behalf of the state, filed written grounds of opposition to the probate of the purported will, alleging that Colbert died intestate, leaving nn heirs within the state or elsewhere to the knowledge of the petitioners; that Colbert was, by reason of physical and mental debility and unsoundness, incompetent to make a last will and testament; that the pretended will was not subscribed or published by Colbert, but that his name was forged thereto after his death by the beneficiaries named therein; and that the contest was instituted for the reason that, in the absence of any heirs, the estate will escheat to the state of Montana. These gnounds of opposition the proponent on April 9, 1901, moved to strike off because they had been filed without permission after the time prescribed by the court within which persons might appear to contest; because the time within which the estate might escheat had not expired, and because escheat cannot be determined in probate proceedings. Further reasons were recited in the motion, but were abandoned on the argument, and will not be noticed. The motion was granted, and the district court and its judge will, unless otherwise directed by this court, proceed to' hear, and hear, the petition for the probate óf the will, ignoring the objections, and denying the state any right to contest the will before its probate.

Upon the foregoing facts, the defendants ask that the alternative writ of mandate be quashed, insisting that the state has no right to contest the probate of the will.

Although the arguments have taken a wide range, there are really but two questions necessarily presented: (1) Were the grounds of opposition to the probate of the alleged will filed in due season, and (2) has the state such an interest as entitles it to contest the probate of the purported will? We shall do little more than announce our conclusions.

1. The contest was instituted by filing written grounds of opposition before the date to which the hearing of the petition for probate had been postponed. In the recent case of Raleigh v. District Court, 24 Montana, 306 (61 Pac. 991), a contest initiated after the time originally appointed for the hearing or the petition but before the hour to which the hearing had been postponed was held to have been in due season. Applying the rule of that case, the contest in the case at bar was begun in time, and there ivas no. reason or necessity for obtaining leave of court to file the grounds of opposition. Section 589 of the Code of Civil Procedure refers to' intervention, and has nothing to do with the commencement of proceedings to contest a will under Sections 2329 and 2340 of the same Code.

2. Counsel for the defendants insist that the contest which tlie state- endeavored to make was a proceeding in escheat,-or1 to have an escheat declared. If this were its character, the proceeding was premature, and the district court properly refused to entertain it, for, under Sections 1867, 1868 and 1869 of the Civil Code, Sections 4510 and 4521 of tlie Political Code, and Title VIII of Part III of the Code of Civil Procedure, a proceeding by the attorney general to reduce the property to his possession, or a proceeding by him in the nature of an inquest of office, to determine whether the state has title by escheat to lands, may not, in any event, be commenced within five years after the death of the decedent. (People v. Roach, 76 Cal. 294, 18 Pac. 407.) But tlie contest of a will does! not involve the question whether the property has escheated or will escheat, nor the question whether tlie property or its proceeds should be deposited in the state treasury for the benefit of nonresident alien heirs.' Neither question can be adjudicated upon the contest of a will or of its probate. The office of a contest is to attack the validity of a purported will; its object is to have such will rejected; consideration of the question of title, except in so far as it may be essential to ascertain whether the contestant is an interested person, within the meaning' of Sections 2329 and 2340 of the Code of Civil Procedure, would be without the legitimate scope of the proceeding.

Much — indeed the greater paid. — of the argument has been addressed to tlie question whether title to the property of a decedent which escheats, vests immediately upon his death, or not. until tlie heirs have failed to- claim succession within the time prescribed by statute. On the part of the state it is maintained that title vests at the moment of death, while- the defendants argue that that the state does not acquire any title during the five years following tlie intestate’s death. We deem it unnecessary to decide which of these positions is correct Assuming, for the purposes of the present case, that the contention of the defendants in respect of the time when title by escheat vests should be upheld, the question presented is,: Has the state such an interest in the probate of the will or in the property of the estate of Colbert, deceased, as entitles it to contest the will? Subdivision 8 of Section 1852 of the Civil Code provides, in substance, that, if an intestate leaves no heirs, his estate escheats to the state. Section 2329, supra, provides' that any person interested may appear and contest a -will. The grounds of opposition to the probate of the will offered by Woolbeater, if established, would result in its rejection, in which case, if there are heirs or another will, the property would descend to them, or pass by purchase to the devisees or legatees, provided they appear within the. periods prescribed by statute. To show the state’s interest, the attorney general alleged that Colbert, died intestate, leaving no heirs within the state or elsewhere, to his knowledge. Wo think the state exhibited prima fads sufficient interest to enable it to institute a contest of the will. If there is no valid will, and no heir asserts his right of succession within the statutory period, the estate escheats. True, heirs, may appear in due season; the state would then cease1 to have an interest in the property. The present interest of the state depends, therefore, upon the nonascertainment of heirs, but the interest, although contingent, is nevertheless a substantial one. The probability of an interest, or even an interest dependent upon a condition, is enough. It would hardly be contended that a contingent remainder-man or an executory devisee is not sufficiently interested in an estate to have the will proved, or to' object to¡ its admission to probate when asserting rights under a different will; nor do we think that if A. devised lands to B., with remainder over to C. in case B. should die before C., C. would be without an interest in the probate of the will or in the estate of A., although B, were yet alive. A supposed will by which* A. devised real property to B. absolutely is presented for probate. C. files grounds of opposition to) the probate^ alleging that the will is a forgery, or is invalid for want of competency in the testator, a,nd, to show his interest, avers that by a former will tbe testator devised all his property to D. upon the condition subsequent that D. should within twenty years appear and claim it, in default of which the property should ga to C., and that D. has not asserted his right, and the twenty years have not passed. We think that C. discloses an interest in the probate of the second will, although it is manifest that twenty years have not elapsed since the testator’s death, and D. has yet the privilege of making his claim. The state may protect and preserve its contingent interest by contesting a suppositious, will. There is some conflict in the decisions touching.the nature of the interest which the contestant must possess; but we are satisfied, upon principle., that, to entitle a person to oppose a t&stamentary paper, it is sufficient if he discloses the existence of a contingent interest. The following text-books and cases may be cited as lending support to. the doctrine: Williams on Executors, page 279; Redfield’s Law and Practice of Surrogates’ Courts (5th Ed.), page 88; 1 Robertson’s Ecclesiastical Reports, 270; In re Greeley’s Will, 15 Abb. Prac. (N. S.) 393; Note to Meyer v. Fogg, 68 Am. Dec. 447; Vestry of St. John’s Parish v. Bostwick, 8 App. D. C. 464; Watson v. Alderson, 146 Mo. 333, 69 Am. St. Rep. 615, 48 S. W. 478; In re Merchant’s Will, 1 Tucker (N. Y. Surrogate Repts.) 18, 19.

Unless Section 2360 of the Code of Civil Procedure may be so construed as to permit the state to contest the probate or validity of the will within one year after its probate, the possible or contingent interest which the state asserts, and the title which it might apquire by escheat, would be concluded by the probate of the will. Section 2366 of the Code of Civil Procedure provides that “if no¡ person, within one year1 after the juobate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed.” It is apparent, therefore, that if the state may not contest the will before its probate, or within one year thereafter, its rights are forever lost.

We have not been referred to, nor have we found, any reported case in which the precise question here presented was decided. We find nothing in the law which requires a conclusion different from the one reached, which is certainly consonant with reason, analogy and justice.

The motion to quash the alternative writ is denied, and judgment is awarded granting a peremptory writ as prayed for.

Writ granted.