#### HOPKINS et al., Appellants, *v.*BUTTE COPPER COMPANY, Respondent.

(No. 1,773.)

(Submitted January 16, 1904.

Decided January 23, 1904.)

*Mines*— Adverse *Claims*— *Actions*— Commencement—Allega*tion*— Pleading—Dismissal — *Demurrer*— Pile *Marks*— Evi*dence*— Jurisdiction.

1. In order to state a cause of action in an adverse suit under Section 2326, U. S. Revised Statutes, the complaint must allege that the adverse claim *391has been filed, within the time allowed, in the proper land office, and that the action has been commenced within the thirty days allowed for that purpose.

2. Failure of a complaint, in an adverse suit under Section 2326, U. S. Revised Statutes, to allege that the suit was commenced within the thirty days allowed for that purpose, is not a jurisdictional defect, but renders the pleading open to general demurrer.

3. Since the state courts derive their powers from the state constitution and statutes, the federal government can neither increase nor diminish their powers to entertain and determine controversies between citizens of the state.

4. In an action to determine an adverse claim to a mining location, the file mark on the complaint, not being- a part of the pleading, was not conclusive evidence of the date it was filed for the purpose of showing that it was not filed within thirty days from the filing of the adverse claim, as required by Revised Statutes U. S. Section 2326.

*Appeal from District Court, Silver Bow Countyj William Clancy, Judge.*

ActioN by John Hopkins and another against tbe Bntte Copper Company. From a judgment in favor of defendant, plaintiffs appeal.

Beversed.

*Messrs. Forbis & Mattison,*and *Mr. M. J. Cavanaugh,*for Appellants.

MB. CHIEF JUSTICE! BBANT’LY

delivered tbe opinion , of tbe court.

On October 11, 1900, tbe defendant, claiming to be tbe owner of tbe Powbatan quartz lode mining claim, -instituted proceedings for patent tberefor in tbe United States land office at Helena. Tbe plaintiffs, having filed in that office their adverse claim to a portion of tbe ground covered by tbe Powbatan location under a location called tbe “Copper Blossom,” brought this action in pursuance of Section 2326 of tbe Bevised Statutes of tbe United States (U. S. Comp-. St. 1901, p. 1430) to have determined tbe right of possession to- the portion of tbe ground in conofiict.

Tbe original complaint, besides tbe necessary averments as to right of possession in plaintiffs, alleged that tbe adverse claim bad been filed and allowed within sixty days after tbe first publication of tbe notice, and that tbe action bad been com*392menced within thirty days after the stay granted thereunder. The clerk’s filing mark upon the complaint indicated that it had been filed on the thirty-first day after stay granted. The defendant’s answer put in issue all the allegations of the complaint, and then, after setting forth affirmatively the nature of its claim, demanded judgment that it be declared entitled to the possession of the ground-in conflict. TJpon these affirmative allegations there was issue by replication. The issues were made up> on February 12, 1901. On November 13, 1901, the defendant moved the court to dismiss the action on the ground that it had been brought to determine an adverse claim to a patent, and that, it appearing that it had not been commenced ■within thirty days after the filing of the adverse claim in the land office, the court had no> jurisdiction to proceed to determine it. While this motion was pending, the plaintiffs filed an amended complaint. This pleading it is not necessary to notice further than to‘ remark that it omitted the allegation that the action had been commenced within thirty' days after the filing of the adverse claim. The motion, being’ then submitted on the original and amended complaints, was sustained, and judgment entered for the defendant. The plaintiffs have appealed. The defendant has made no appearance in this court.

It has long been the rule in this jurisdiction that, in order to state a cause of action in an adverse suit under Section 2326 of the United States Devised Statutes (U. S. Comp. St. 1901, p. 1430), it must be alleged that the adverse claim has been filed within time in the proper land office, and that the action has been commenced within thirty days, allowed for that purpose. The rule -was first' declared by the territorial supreme court in *Mattingly*v. *Lewisohn,*8 Mont. 259, 19 Pac. 310. It doubtless grew out of the view early entertained by that court that, though the action assumed the character of ejectment or a suit to quiet title, according as the one or the other form of action was appropriate, the ultimate purpose of it was to determine which of the contestants was entitled to a patent, the final judgment in the case being determinative of this question. *(Wolverton*v. *Nichols, 5*Mont. 89, 2 Pac. 308; s. c. on error *393to the Supreme Court of the United States, 119 U. S. 485, 7 Sup. Ct. 289, 30 L. Ed. 474; *Garfield M. & M. Co.*v. *Hammer,*6 Mont. 53, 8 Pac. 153; *Milligan*v. *Savery,*6 Mont. 129, 9 Pac. 894.) Whatever be its origin, it has been more than once recognized by this court since the decision in *Mattingly*v. *Lewisohn, supra,*as the correct rule. *(McKay*v. *McDougal,*19 Mont. 488, 48 Pac. 988; *Murray*v. *Polglase,*23 Mont. 401, 59 Pac. 439.) In *McKay*v. *McDougal,*after reference to the rule as stated in *Mattingly*v. *Lewisohn, supra,*is was said: “As applied to actions of the class to- which *Mattingly*v. *Leiv-isolm*belongs, we believe that to be correct, in order that it may appear that the court had jurisdiction to proceed with the case; but such averments of fact have nothing directly to do with the title or right of possession to the property involved, and are not probative facts of the ownership- of the plaintiff.” The use of the word “jurisdiction” in this passage is unfortunate, in that it implies that the jurisdiction in the state courts to try adverse suits is derived from the United States statute. This is not true, because the federal government can neither increase nor diminish the power of state courts to- entertain and determine controversies between citizens of the state. These courts derive their powers from the constitution and statutes enacted in pursuance thereof, and administer them without reference to the duty cast upon the adverse claimant under the federal statute. They may entertain suits under the state statute (Code of Civil Procedure, Sec. 1310) to determine adverse claims, without regard to the fact that proceedings for patent are pending in favor of one of the parties. In the class of actions brought under this section no question touching the right of either of the parties to- a patent from the United States government is involved, and it is only necessary for the complaint- to contain the necessary allegations of title and right of possession in the plaintiff and ouster by the defendant, or the assertion of some claim adverse to the plaintiff. Nevertheless, state courts may, as they have heretofore done, recognize the fact that in the class of cases involving the right to- patent from the United States government the judgments rendered will not be effective *394unless tbe action is commenced and prosecuted after the necessary steps have been taken by the plaintiff, and within the limitations provided by the federal statute; for, as was said of the rule in *Murray*v. "Polglase, *supra,*“It prevents conflict of action between the state court and the officers of the land department, and enables the court to know whether its judgment thus sought, often through tedious and expensive litigation, will, in the end, be effective for any purpose.” In accordance with this idea, doubtless, the legislature enacted Section 1322 of the Code of Civil Procedure, which declares: “In an action brought to determine the respective rights of claimants to the possession of a mining claim or quartz lode, under the provisions of the Acts of congress of the United States, it is immaterial which party is in possession, and it is sufficient to confer jurisdiction upon the court, if it appears from the pleadings that the application for a patent has heen made and an adverse claim thereto filed and allowed in the proper land office; and the verdict or decision must find which party’ is entitled to the possession of the premises in dispute.” This provision clearly implies that in this class of cases it is useless for the court to proceed to judgment, unless it appears that an application for patent has been made, and that an adverse claim has been filed and allowed in the proper land office. It does not, however, change the rule established by the cases cited, but leaves it undisturbed as to the allegation under consideration here. Its presence in,the pleading is necessary to state a cause of'action, but it is not a jurisdictional fact. Its presence leaves the pleading open to general demurrer, and this is the proper method of attack. It was- error, therefore, for the court to sustain the motion on the ground it did.

The filing mark upon a complaint is not part of the pleading, and the court could not, look to it, as it evidently did, in considering the motion, as conclusive evidence that the plaintiffs’ action was without merit. At best, the filing mark - is only *prima facie*evidence of the actual filing; for a paper is actually filed when it is deposited with the clerk in his office for that purpose, accompanied by the filing- fee. The date of the filing *395may become an issuable fact, like any other, wbicb must be alleged in order to state a cause of action. It would seem to be a more logical rule to require tbe failure to bring tbe action within the statutory limitation to be set up> as a matter of defense, but the rule as stated has been so long observed in this jurisdiction that we do not now feel justified in changing it.

The judgment is reversed, and the cause is remanded for further proceedings in accordance with the views herein expressed.

*Reversed and remanded.*