Fuller v. Mountain Sculpture

• Decision Date: 12 August 1957
• Docket Number: No. 8576,8576
• Citation: 314 P.2d 842,6 Utah 2d 385
• Parties: d 385 Kathy FULLER and Kimberly G. Fuller, minors, appearing by and through Glen E. Fuller, their guardian ad litem; Glen E. Fuller, Connie J. Fuller; Jack R. Decker and Lejeune Decker, Plaintiffs and Respondents, v. MOUNTAIN SCULPTURE, Incorporated, a Utah Corporation; Richard K. Hatch, Ralph Maxwell, Warren M. O'Gara, and Peter M. Lowe, Defendants and Appellants.
• Court: Utah Supreme Court

Page 842

314 P.2d 842

6 Utah 2d 385

Kathy FULLER and Kimberly G. Fuller, minors, appearing by and through Glen E. Fuller, their guardian ad litem; Glen E Fuller, Connie J. Fuller; Jack R. Decker and Lejeune Decker Plaintiffs and Respondents, v. MOUNTAIN SCULPTURE, Incorporated, a Utah Corporation Richard K. Hatch, Ralph Maxwell, Warren M. O'Gara and Peter M. Lowe, Defendants and Appellants.

No. 8576.

Supreme Court of Utah.

Aug. 12, 1957.

Peter M. Lowe, Salt Lake City, for appellant.

Glen E. Fuller, Joseph Y. Larsen, Jr., Salt Lake City, for respondent.

CROCKETT, Justice.

A canyon exposure of blue-green quartzite rock, valued as building stone, is the prize over which these parties contend. Each claims to have made prior valid mining locations on the area. The trial court found for the plaintiffs and defendants appeal.

The challenge to plaintiffs' right to the property relates to claimed defects: in descriptions of the claims; indefiniteness of monuments; and in location notices.

In the latter part of 1954 plaintiff Glen E. Fuller discovered the stone mentioned above in a canyon known as Rock Canyon in northwestern Box Elder County. This canyon is distinguished by steep rocky walls and a small stream which courses down it southeasterly. This is an area remote from any community, but the blue-green coloring of the canyon's southern slope can be seen from the town of Park Valley, Utah. The ground in question is valueless for any purpose except mining, and is federal land open to the location of mining claims.

After removing some of the stone for use in their family home in Salt Lake City, plaintiffs decided to claim it. Glen E. Fuller, accompanied by his wife and children, the other plaintiffs, located four lode claims May 12, 1955, asserting a discovery of mineral in place as required by federal law for a lode claim location, ¹ and properly placed signed notices of location on rock discovery monuments at the four corners and the middle of each of the four lode claims. These notices were recorded in the County Recorder's Office.

After giving further consideration to the matter, Fuller returned to Rock Canyon on May 14, 1955, and made a placer location ² which encompassed the four lode claims and came within the permissive limits of the federal regulations which allow four persons to locate, as a placer claim, a total of 80 acres in two adjacent 40-acre tracts. ³ He appears to have been correct in his second determination as to the nature of the mining claim required. Although considerable difficulty is encountered in some instances as to whether a lode or placer claim should be used, ⁴ fortunately no such difficulty exists here. 30 U.S.C.A. § 161 provides:

'Any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer-mineral claims.'

Mr. Fuller did not procure a professional survey, but by his own devices and relying upon his sense of direction, laid out the claim partly by guesswork and in some instances by stepping distances, a not unusual practice in locating mining claims. In doing so he attempted to follow generally the contour of the canyon, and to include its adjacent hillsides and the saddle at its head. He made up his notices containing the following description:

'Eighty (80) acres in area, consisting of two contiguous 40 acre tracts, covering the south slope and face of a hillside (and other area) prominently visible from Park Valley by reason of the Turquoise colored rock visibly exposed thereon * * * entire area is covered with said stone * * *

'Beginning at Monument #1 upon which is placed this Location notice, being about 175 feet south of the campsite at the mouth of Rock Canyon--where the tall cottonwood trees are located--at the creek crossing on the west side thereof; and running thence 2,640 feet north generally along the creek and up the hillside to Monument #2, consisting of stone; thence west down said hill and across creek and up other side to and beyond top of ridge to clearing to stone Monument #3, a distance of 1,320 feet; thence south down hill, 2,640 feet to Stone Monument #4; thence East 1,320 feet along the base of hill to point of beginning at this Monument #1.'

A later survey revealed that the axis of his claim, instead of being due north-south as he had thought, varied about 25 degrees west of north, and was thus oriented northwest-southeast rather than north-south, so that if the description were applied literally it would not include part of the 'saddle' now in controversy.

As the law requires, Fuller marked monuments at each of the four corners of the placer claim and placed a location notice containing the above description at an appropriate place on the claim, to-wit: On a cedar tree near the creek at the mouth of the canyon. In addition to these legal requirements, he went further and posted a large sign reciting the location and the names of the locators at the mouth of the canyon, a short distance from the tree just mentioned. He recorded the notice on May 25, 1955.

Meanwhile, the defendants had become interested in the property. In June, 1955, Richard K. Hatch and Ralph Maxwell visited the area and saw the placer and lode notices and the sign posted by the plaintiffs. They also went to the Recorder's Office and examined the notices plaintiffs had filed. Hatch later surveyed the locality and during the summer and fall of 1955 the defendants made locations of similar deposits of stone on land adjacent to the west, but not encroaching on plaintiffs' claims.

On October 26, 1955, Hatch and Warren M. O'Gara went to Glen E. Fuller's office to discuss the claims in Rock Canyon. During this visit Fuller drew a sketch of the area, and indicated to them the ground included in his lode and placer claims, specifically mentioning that the part of Rock Canyon known as the 'saddle' was included within his placer claim.

Later, on January 7, 1956, Hatch and Maxwell located and filed a placer claim immediately west of Fuller's claim, and oriented due north-south so that it overlapped the northwest corner of Fuller's claim which included this 'saddle.' They in turn assigned it to Mountain Sculpture, Inc., of which they are officers. The following April the defendants built a road from the west into their claim and began removal of stone. Consequent to this plaintiffs brought this action to enjoin them, to recover damages for stone removed and to quiet title to their placer claim. The trial court granted judgment accordingly but refused to award damages.

The specific attacks defendants make on plaintiffs' locations are: (1) The claim is not correctly laid out in that (a) it does not conform to the rectangular subdivisions of the U. S. Survey, and (b) it is not oriented in true north-south, east-west directions, and (2) that the notice of location was technically insufficient because (a) the descriptions are faulty, and (b) the notice does not contain the names of the locators.

The federal statutes do provide that placer claims shall conform as near as practicable to the United States system of public land surveys and the rectangular subdivisions of such surveys. ⁵ Other federal statutes, ⁶ and also the statutes of our state ⁷ provide that the notice of the claim shall contain the names of the locators; the time of location; a description of the claim by reference to natural objects or by distinct monuments which will identify the claim and enable one to readily trace its boundaries.

The purpose of the foregoing statutory requirements is obviously to mark the locator's claim as definitely as possible and give notice thereof to the public. They set up generally the form and procedure to be followed. If that purpose is accomplished, punctilious compliance with the exact letter of the law is not an indispensable requisite and minor variations therefrom will not necessarily invalidate the claim. The statutory rules are subject to variance to meet the practical exigencies confronted by prospectors. It has been held that the claim need not conform precisely to the United States Survey nor be laid out in a true north-south direction when it is confined within a narrow canyon, ⁸ or gulch, ⁹ or other topographical abnormality which would render doing so impractical; nor is the locator compelled to include in his claim land not fit for mining. ¹⁰ Likewise, he is not required to run his lines over prior located claims. ¹¹ Plaintiffs' claim is in a compact and substantially rectangular form and comes as close to conforming to the United States land surveys and true points of the compass as is reasonably practicable, which is all the law requires.

In regard to the sufficiency of the notices, it is to be observed that the same tolerance as to the form of the claim just discussed is also indulged with respect thereto. The notices in question definitely singled out Rock Canyon and described the land claimed by specific reference to the creek and campsite at the mouth of the canyon. Although the corner monuments may have been more satisfactory, as pointed out by the trial court, it appears that such monuments as 'a cedar tree,' 'a stone with a stick and red flag on it,' 'a large white rock with a cedar tree by it,' and a 'cedar tree with a circle of rocks around it,' were the best practical markers available. These monuments, taken in connection with directions and measurements giving the approximate length and breadth of the claim, would enable a person of ordinary intelligence to locate the boundaries with reasonable accuracy and without difficulty. ¹² The evidence supports the trial court's finding that it was Fuller's intention to so orient his claim as to include all of this type of building stone exposed in the canyon and the saddle at its head. Concerning the claimed lack of names of the locators on some of plaintiffs' notices, it...