Carothers v. Mayer/Opinion of the Court

Upon the facts above stated, the supreme court held: First, that the statute of limitations did not begin to run against the mining claim until the patent had been issued, following in this particular King v. Thomas, 6 Mont. 409, 12 Pac. 865; and, second, that the matters alleged as an estoppel having taken place before the time the plaintiffs made their application for a patent, and notice of such application having been given, that all adverse claimants were given an opportunity of contesting the applicant's right to a patent, and that, the patent having been issued, it was too late to base a defense upon facts existing prior thereto, citing in support of its position a prior ruling of the court in Talbott v. King, 6 Mont. 76, 9 Pac. 434.

Neither of these defenses presents a federal question. Defendants asserted no right under a federal statute; made no claim under any federal patent; claimed solely under a statute of limitations, which the highest court of the state declared did not protect them; and certain matters of alleged estoppel in pais, which the court held to constitute no defense.

The writ of error must, therefore, be dismissed.