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ON PETITION FOR REHEARING.

4. This case was first set for oral argument August 28, 1888. September 20th following counsel stipulated that the argument before the commission should be set for October 11th. On October

4th it was reset for the 25th. On that date it was agreed that the argument should be postponed until the return of one of the counsel from Washington, which would be in a few days. No further steps were taken by either party to have the oral argument heard, and on March 29, 1889, the final opinion was filed by the commission, (whose members were about to go out of office,) by order of the court, the cause having been pending for six years, and it being assumed by the court that oral argument had been abandoned. Held, that a rehearing would not be granted, no excuse being shown for the neglect in being heard in oral argu

ment.

Commissioners' decision. Appeal from district court, Gilpin county.

tion in support of his adverse claim, may be per- | said Wash Lewis and Henry claims. Plainmitted by the court to bring in other adverse tiffs' demurrer to so much of defendant's anclaims by a supplemental complaint, if they have been duly filed, and are so brought within the time Swer as alleged a failure to adverse the Wash limited for bringing an action in support thereof, Lewis and Henry claims, based upon the though he may have acquired the right to them grounds that, if said allegations were true, by purchase after the commencement of the action. the facts would be no bar to the action, and 3. The objection that the evidence shows that plaintiff did not bring the action in support of his that a failure to adverse is no bar to bringadverse claim within 30 days after filing such ing an action to try title to claims for which claim cannot be raised for the first time in the suno entry has been made, was sustained. By preme court. a supplemental complaint the plaintiffs seek the Steam-Boat lode mining claim. to recover possession of the west 1,426 feet of A motion to strike out this supplemental complaint was denied. Defendant's answer to said complaint puts in issue all the material allegations thereof, and alleges that the land claimed or covered by the said Steam-Boat claim is covered by patents issued to defendant by the United States, for the No. 8, No. 10, and O. K. lode mining claims, and by applications by defendant for patent for the Wash Lewis and Henry claims, and that no adverse claim was filed on behalf of said Steam-Boat claim against said applications for patent by defendant within the period allowed by law for filing adverse claims, and that defendant is the owner of said patented This action was brought by appellees, who claims, and is the owner of, and has the right were plaintiffs below, against the Marshall to occupy and possess, said unpatented cla ms. Silver Mining Company, to recover the pos- A demurrer to so much of the answer to the session of the Kirtley lode mining claim, an supplemental complaint as relates to the apundivided one-half of the Junction lode min- plications for patents for the Wash Lewis ing claim, and an undivided three-fourths of and Henry claims, on the ground that the altile Trade Dollar lode mining claim, and it was legations thereof are not sufficient to constiaverred in the complaint that the action was tute a defense, was sustained. The Colorado brought in support of an adverse claim filed Central Consolidated Mining Company was against said defendant's applications for a pat-made co-defendant on its petition. The jury, ent for the Wash Lewis and Henry lode min- by their verdict, found that plaintiffs were ing claims. The defendant, answering the entitled to the premises in conflict between complaint, denied plaintiff's title to said the Kirtley and Henry lodes, between Kirtmining claims, admitted that the action was ley and Wash Lewis lodes, between the Trade brought in support of an adverse claim as to so Dollar and Henry lodes, and between the much of the Kirtley claim as is covered by Junction and Henry lodes, and as to the the Wash Lewis claim, but denied that it was Steam-Boat and No. 10 lodes they found that brought in support of an adverse claim as to plaintiffs were the owners of a certain porthe remaining portion of the Kirtley claim, tion of the Steam-Boat lode, and were entiand, as to the Junction and Trade Dollar tled to the possession thereof, excepting the claims, alleged that plaintiffs failed to bring grounds embraced within the lines of the O. any adverse claims in support of their title, K. lode. The judgment entered on the veror pretended title, to said Junction and Trade dict is for the recovery of the premises thereDollar mining claims within the 60 days dur-in described, excluding so much thereof as ing which defendant's applications for a pat- | are embraced within the side and end lines ent for the Wash Lewis mining claim, and of the No. 7, No. 8, No. 10, and O. K. claims. for a patent for the Henry mining claim, were published, and that by such failure plaintiffs were barred from asserting title to either the Junction or Trade Dollar claims, so far as said claims conflicted with or were covered by either the said Wash Lewis claim or the said Henry claim; alleged that defendants claimed the right to occupy and possess all that part of the Junction and Trade Dollar claims lying within the exterior lines of said Wash Lewis and Henry claims, by the pre-emption, discovery, and location, as parcels of said Wash Lewis and Henry claims, and also by reason of the failure of the plaintiffs to file adverse claims in favor of said Junction and Trade Dollar claims against

Morrison & Fillius, for appellants. L. C. Rockwell, for appellees.

RISING, C., (after stating the facts as above.) The ruling of the court upon the plaintiff's demurrer to the defense, set up in the answers, based upon the failure to adverse the Wash Lewis and Henry claims with the Junction and Trade Dollar claims, is assigned for error. In considering the question presented by this assignment it is proper to first examine the pleadings for the purpose of ascertaining the object of the action. The complaint contains the proper allegations for an action brought to recover the possession of the Kirtley lode, the undi

cated. Wolfley v. Mining Co., 4 Colo. 112, 117; Wight v. Dubois, 21 Fed. Rep. 693. In Mining Co. v. Mining Co., 4 Sawy. 302, 318, it is said by Justice FIELD that, under the act of 1872, “when one is seeking a patent for his mining location, and gives proper notice of the fact as there prescribed, any other claimant of an unpatented location objecting to the patent of the claim, either on account of its extent or form, or because of

vided one-half of the Junction lode, and the claim filed. The issuance of a patent to the undivided three-fourths of the Trade Dollar applicant cannot be stayed by reason of some lode, and also contains the further allegation one else claiming a better right to the possesthat the action is brought in support of an sion of the premises, unless the person makadverse claim filed against the applications ing such claim files the same against the for patent for the Wash Lewis and Henry claim made by the applicant. An action lodes. It is contended by counsel for defend- brought in support of such adverse claim ant in error that the last allegation tenders must be based upon the rights asserted in an immaterial issue, and that the sole object such claim, for the reason that it must be of the action is to recover the possession of conclusively assumed that no adverse claim the premises described in the complaint, and exists except such as have been filed. The that its determination does not in any man- allegation in the complaint that the action is ner depend upon, and cannot be affected by, brought in support of adverse claims must be the filing, or by the failure to file, adverse held as determining the character and object claims against the applications for patents to of the action, and such object is to establish the Wash Lewis and Henry lodes; while plaintiff's right to the possession of the counsel for plaintiff in error contend that the premises in controversy, by reason of a valid object of the action is to have adverse claims location thereof under the acts of congress, against the issuance of patents to the Wash under the adverse claims in support of which Lewis and Henry lodes determined. Section the action is brought, and to stay defend2325, Rev. St. U. S., prescribes the necessary ant's proceedings under the application for steps to be taken by an applicant to obtain aa patent thereto until the right of the plainpatent for mineral land, and declares: "If tiff under said adverse claims may be adjudino adverse claim shall have been filed with the register and the receiver of the proper land-office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chap-asserted prior location, must come forward ter." Section 2326 declares: "Where an with his objections, and present them, or he adverse claim is filed during the period of will afterwards be precluded from objecting publication, it shall be upon oath of the per- to the issue of the patent." The object of son or persons making the same, and shall an action, brought in support of adverse show the nature, boundaries, and extent of claims, being to determine the plaintiff's such adverse claim, and all proceedings, ex- right of possession and title under such cept the publication of notice and making claims, it becomes a material question in the and filing of the affidavit thereof, shall be case whether the requirements of the statute stayed until the controversy shall have been in relation to the filing of such claims have settled or decided by a court of competent been complied with, as the very basis of the jurisdiction, or the adverse claim waived. action is the filing of such adverse claims in It shall be the duty of the adverse claimant, the land-office; and when it is alleged in dewithin thirty days after filing his claim, to fendant's answer that his right to a patent commence proceedings in a court of compe- was not adversed by a claim under which tent jurisdiction to determine the question of plaintiff claims the right of possession to the the right of possession, and prosecute the premises in controversy, such answer presame with reasonable diligence to final judg- sents a defense as against such claim. It ment; and a failure so to do shall be a waiver follows, therefore, that the court erred in of his adverse claim." By those provisions sustaining the demurrer to the defense allegof the statute the filing of an adverse claiming a failure to adverse the Wash Lewis and is made the first step to be taken in proceed- Henry claims with the Junction and Trade ings for determining the right of possession Dollar claims. and title under a valid location, for the purpose of establishing the right to a patent, and upon taking this step the issuance of a patent is stayed until such right has been determined or has been waived by the party filing such adverse claim. That a party who commences an action under the statute, to determine such right of possession, must stand or fall by the rights which he has asserted in his adverse claim, seems evident from the requirement of the statute that the nature, boundaries, and extent of such adverse claim must be shown by the adverse

Appellants, in instruction No. 4, requested the court to instruct the jury that the plaintiffs were confined to such title to the premises in controversy as they had at the time the action was commenced, and the refusal to give such instruction is assigned for error. We know of no reason why an adverse claimant, who has brought an action in support of his adverse claim, may not be permitted by the court to bring in other adverse claims by a supplemental complaint, if the same have been duly filed, and are so brought within the time limited for the com

mencement of an action in support thereof, argument to be made, and the day had been although he may have acquired the right to fixed for the same by the commission; but the possession of such claims by purchase, upon motion of R. S. Morrison, attorney for after the commencement of the action. As appellant, the argument of the cause was such purchaser he could bring an independ- postponed, and before another day was fixed ent action in support of the adverse claim the cause was taken up and decided." This filed, and if brought in the same court where statement, unexplained, leaves the action of the first action was pending, the court might the court and commission in the premises order the cases consolidated. We see no ob- subject to unjust criticism. Oral arguments jection to the bringing in of such adverse are favored, and, so far as possible, the conclaims by supplemental pleadings. The in- venience of counsel is consulted in connecstruction was properly refused. It is con- tion therewith. To show that in this case tended by counsel for appellants that the fail- everything within reason was done to have ure of an adverse claimant to bring an action such an argument, a brief review of facts, as in support of his adverse claim within 30 shown by the records and report of the comdays after filing such claim is a waiver there- mission, is alone necessary. The cause was of, and that the application of this rule takes first set for oral argument in pursuance of a the Junction out of the case, it being shown written stipulation on the 28th of August, by the evidence that the action was brought 1888. On the 15th of September following on the thirty-first day after the filing of an it was taken out by the commission for final adverse claim under the Junction location; decision. Concerning the postponement of but appellee contends that, this question can- the argument from August 28th we are not not be raised for the first time in the case in advised. But on September 20th counsel for this court. We think this point made by the parties appeared before the commission, counsel for appellee is well taken. Error is and orally stipulated that the argument assigned upon the giving of each of the in- should be set for October 11th, at 10 o'clock structions requested by the plaintiffs, but in A. M. They then also agreed to furnish the argument of counsel no objection to maps of the premises in controversy for exthese instructions is urged except to certain amination by the commission before the day portions of instruction No. 1, and as to such thus fixed. Two maps were handed in by portions it is contended, as to some parts one of the parties in pursuance of this agreethereof, that the burden of proof is thereby ment. On October 4th a written stipulaplaced on the defendants, when it should tion, signed by the counsel of record, was properly be made to rest on the plaintiffs, and filed, resetting the argument for the 25th of that, by another portion of said instruction, that month. On the 25th of October the the jury were authorized to find against the counsel again appeared, and agreed that the defendants for the entire area of the premises oral argument should be postponed until the in conflict with each of the adverse claims re-return of Mr. Morrison, counsel for appellied on by the plaintiffs, upon a showing by plaintiffs of a better title under either of such claims. We do not think these objections to the instructions are well taken. Under the holding that the object of the action is to establish plaintiffs' right of possession under the adverse claims in support of which it was brought, by reason of a location thereof, in compliance with the provisions of the statute relating to the location of mining claims, the consideration of many of the assignments of error is made unnecessary, for the reason that the questions raised thereby are substantially the same as the question determined, or are such as will by such holding be eliminated from the case on a new trial. The judgment should be reversed.

DE FRANCE and STALLCUP, CC., concur.

lant, from Washington, which would be in a few days. Several weeks later, the attention of counsel for appellee was again called to the matter, without evoking any suggestion or request or satisfactory comment. No further steps were taken by either party to have the oral argument heard, and on the 29th of March, five months and four days after the last day set therefor, the final opinion was filed. It was not, nor is it yet, shown that Mr. Morrison did not return in a few days, or that the argument might not have been made long prior to the filing of this opinion. In the mean time parties interested in the litigation were appealing for a speedy determination thereof, and censuring the court on account of its great delay in the premises, the cause having been pending upwards of six years, two and a half years of aration of abstracts and briefs. No explanawhich period had been consumed in the prep

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment is re-tion or excuse having been given concerning

versed.

UPON PETITION FOR REHEARING.
(May 3, 1889.)

PER CURIAM. The present application for a rehearing is predicated upon the following among other grounds: "First. Because this action was heard and decided by the commission after this court had allowed an oral

the long delay, the court assumed that the
oral argument had been abandoned, and di-
rected the commission to report an opinion
deciding the appeal. For seven months that
body had had the case under consideration,
and its members were about to go out of of-
fice. It was therefore important that the
matter be disposed of when it was.
sides, further procrastination would hardly

Be

(12 Colo. 453)

COOKE, County Superintendent of Schools, v. the state by reason of the creation of the new

SCHOOL-DIST. No. 12.

(Supreme Court of Colorado. April 5, 1889.)

COUNTIES-DIVISION-SCHOOL FUND.

1. Act Colo. Feb. 25, 1887, creating the county of Logan out of territory formerly embraced by the county of Weld, having made no provision for a division of the school fund, Weld county is entitled to retain the whole fund belonging to it before the division.

2. Gen. St. Colo. § 3067, provides that the county superintendent of each county shall annually estimate "what proportion of the general school fund which may be distributed during the then current year among the districts of his county shall belong to each district." Held, that the making of such estimate is not of itself sufficient to vest in the several districts the ownership of their respective

shares.

STALLCUP, C., dissents.

Commissioners' decision. trict court, Weld county.

Error to dis

have been excusable. The interests of the | from and after that date, the county of Lolitigants were entitled to some consideration, gan was created out of territory formerly and a final disposition of the appeal was due embraced by the county of Weld. The deto them, so that the long and tedious litiga- fendant in error, school-district No. 12 of tion might be terminated. The remaining Logan county, claims that at that time it matters relied upon in support of the present was, and had been for several years prior petition are in our judgment likewise with- thereto, school-district No. 12 of Weld counout substantial merit, and the rehearing is ty; that it still embraces the same territory, denied. and has the same boundaries, as when originally organized; that it lost none of its rights as a school-district under the laws of county; and that it is entitled to a proportionate share of the general county school funds in the treasury of Weld county on the first Monday of April, 1887, the same as though the county of Logan had not been created. The county superintendent of schools of Weld county having refused to recognize such right, this action was instituted by such district against said superintendent to compel the latter, by writ of mandamus, to recognize the same, and to perform and carry out what it asserts was the duty of such officer in the premises. The writ was granted by the court below, and the cause has been brought to this court for review. The act creating Logan county makes no proper provision for a division between the new and the old county of the All the facts necessary to an understand- funds or property belonging to the old couning of the decision are sufficiently stated in ty. See opinion of this court, recently filed, the opinion, save the provisions of the school in the cases of Logan Co. v. Weld Co., and law mainly relied upon. These provisions of Washington Co. v. Same, 20 Pac. Rep. 273. read as follows: "Sec. 3067. On or before These cases, in which said opinion is filed, the first Monday of October next, after hav- were brought to enforce an equitable divising received the reports from the secretaries ion of surplus county and road funds. The of the several districts, as provided in sec-law, aside from said act, contains no such tion fifty-five (55) of this act, and annually thereafter, the county superintendent of each county shall estimate what proportion of the general school fund which may be distributed during the then current year among the districts of his county shall belong to each district. Sec 3068. The county superintendent shall apportion the said fund among the districts entitled to the same, according to the number of persons of school age, as shown by the census-list of the several districts. He shall, after such apportionment is ascertained, proceed as directed in section nineteen (19) of this act." "Sec 3014. The county superintendent shall apportion all school money to the school-districts, in accordance with the provisions of section seventy-two of this act, quarterly, to-wit, on the first Monday in January, April, July, and October, in each year. Immediately after such apportionments, he shall certify to the county treasurer the amounts which are to be placed to the credit of the several districts, and notify the treasurer of each district of the amount placed to its credit.”

Jas. W. McCreery and H. N Haynes, for plaintiff in error. Markham & Dillon and C. A. Bennett, for defendant in error.

DE FRANCE, C. By a legislative act, approved February 25, 1887, and taking effect

provision, and, in the absence of an express statutory provision to that effect, the old county is entitled to retain the school funds now in question, if they belonged to it at the time of the creation of the new county. See opinion, supra, and cases there cited. A fair and proper construction of all the provisions of law concerning the public-school system of this state, can, we think, lead to but one conclusion, with regard to the ownership of the funds over which this contention has arisen, and that conclusion is that they belonged to the county of Weld, for the purposes for which they had been provided, until accredited to the different school-districts of that county under the law. Whether the ownership of such funds may be held to continue in the county after being so accredited to the districts, and until the money is actually paid out by the treasurer of the county in the manner provided by law, we need not say.

It is contended by counsel for defendant in error that at least after, if not before, the annual estimate provided for in section 3067, Gen. St., is made, the funds provided for the current school year belong to the school-districts in proportionate parts, according to such estimate, and not to the county; and that, when such estimate was made in October, 1886, by the county superintendent of

Weld county, the right of defendant in error or division between the two counties, or the to a proportionate share of such funds at- respective school-districts thereof, the old tached and became vested in it, and that such country is entitled to retain the same as right was not divested or impaired by the funds belonging to it, according to the princreation of Logan county. Much importance ciple announced by this court in the opinion seems to be attached by counsel to the words hereinbefore referred to. That the general "shall belong to each district," found in said school fund, referred to in section 3067 of section 3067; but the language of this sec- the General Statutes, belongs to the county, tion must be construed in connection with to be used and distributed for the purposes all other provisions of the law which have a and in the manner provided by law, until bearing upon the same subject-matter. When such time at least as it is apportioned and acthus construed, the words “shall belong to credited to the respective school-districts, is each district" cannot be held as importing an evidenced, we think, by the whole tenor of ownership in the districts from the date of the law, and notably by section 4, art. 9 of such estimate, but rather that at some time the state constitution, and sections 3006, 3064, thereafter the districts should have such con- Gen. St. The custody and control thereof is trol over or interest in such funds as is pro- in the county, through its proper officers, unvided by law. The making of such estimate til actually paid out by the county treasurer. does not include an apportionment of the It is not paid or delivered over to the schoolfunds, for no part thereof is thereby actually districts or their respective treasurers, but it set apart or credited to any district, nor is is kept in the county treasury, and paid out that done until the quarterly apportionments to the legal holders of the orders of such disare made as provided for in section 3014, Gen. [tricts, properly drawn in favor of parties to St. The amount which each district shall whom the districts have become lawfully inreceive during the year is not fixed by such debted, and not otherwise. Section 3048, estimate; nor could it be, for such amount Gen. St. The special district funds are paid depends upon the amount to be derived from out in the same manner, 'but the districts the collection of taxes and from other sources, themselves direct the levy of such special as well as upon forfeitures and the creation funds and its amount, while they have no of new districts from unorganized territory. voice in the levy of the county school tax. Such new districts, if any be created, are en- The county commissioners control the latter, titled to a share of such funds. Section 3025,-under certain restrictions, it is true; but Gen. St. They must, within the time limit- they are given a discretion, within certain ed by the section last named, open and main-limits, as to the amount of such general levy. tain public schools. A public school is one that derives its support in whole or in part from moneys raised by taxation. Taxes for the support of our common schools are all levied by the respective counties, and but once in each year. A new district may be created from unorganized territory shortly after such annual levy; and in that case, if it were not entitled to a portion of the public funds, it could not, for want of proper funds, maintain the school required by law, and would as a consequence lose its organization. By giving to such new district its share, the amount going to each of the old districts is proportionately reduced. In case of forfeiture by one or more districts, then the amount going to each of the others is, by reason of such forfeiture, proportionately increased. The fact that the amount or proportion to which each district may be entitled is thus subject to diminution or enlargement undermines and destroys the argument advanced by counsel for defendant in error, that a right attached and became vested in it to a proportionate share of the funds in dispute, upon the making, and from the date, of such annual estimate.

The control of the general fund is thus removed from the districts as far as it may be consistently with their right to participate in the same at all, or in the benefits to be derived therefrom. Counties are expressly made responsible to the state for taxes levied for state purposes, with certain exceptions, (section 2686, Gen. St. ;) but there is no statutory provision, so far as we can discover, which makes a county liable to school-districts, or otherwise, for a loss of the general school fund, even though such loss should occur after the fund has been apportioned and accredited to such districts. A county school superintendent has no supervision over school-districts situated outside of his own county; nor has he any official knowledge thereof, or official connection therewith; nor has he any authority to apportion to such outside districts the general school fund of his county, or any part thereof. The case presented is one of apparent hardship. But the courts are powerless in the premises. It was competent for the law-making power, when it established Logan county, to make provision for an apportionment of the fund in question; but it did not see fit to do so. The act establishing Logan county does Its failure in this respect may be deemed an not refer to or mention by name the subject- omission or oversight, but it is one which the matter of school funds, or of school districts, courts cannot supply without passing outside unless school funds were intended to be in- of their own province. They cannot extend cluded in the expression "all matters of reve-provisions of law enacted for an entirely difnue," found in section 11 of said act; and, if ferent purpose, and having no such object in such was the intention, then for the want of view, to apply to a case in hand in order to a proper provision for their apportionment furnish the relief demanded, for that would v.21p.no.7-32

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