Adams v. Benedict, 6330

• Decision Date: 23 April 1958
• Docket Number: No. 6330,6330
• Citation: 64 N.M. 234,327 P.2d 308,1958 NMSC 51
• Parties: Henry C. ADAMS and G. R. Kennedy, Plaintiffs-Appellees, v. Russell BENEDICT, Sombrero Uranium Company, a corporation, Henry Reynolds, d/b/a Creel Drilling Company, Paul Coupey, and John Doe, Defendants,-Appellants.
• Court: New Mexico Supreme Court

Page 308

327 P.2d 308

64 N.M. 234

Henry C. ADAMS and G. R. Kennedy, Plaintiffs-Appellees, v. Russell BENEDICT, Sombrero Uranium Company, a corporation Henry Reynolds, d/b/a Creel Drilling Company, Paul Coupey, and John Doe, Defendants,-Appellants.

No. 6330.

Supreme Court of New Mexico.

April 23, 1958.

Rehearing Denied July 23, 1958.

Henry A. Kiker, Jr., Patricio S. Sanchez, Albuquerque, for appellants.

R. F. Deacon Arledge, Charles Driscoll, Albuquerque, for appellees.

PAYNE, District Judge.

This is an appeal from a judgment or decree wherein Russell Benedict, Paul Coupey and the Sombrero Uranium Company were the defendants and were also counter-claimants, and Henry C. Adams and G. R. Kennedy were the plaintiffs and also counter-defendants. Judgment was rendered for the plaintiffs on their complaint and this appeal followed by the defendants. Hence the defendants will be referred to as appellants and the plaintiffs as the appellees.

The case was tried without a jury and findings of fact and conclusions of law were duly filed in the case.

The appellees' complaint was in the nature of a suit to quiet title to twenty-six unpatented lode mining claims in McKinley County and a petition for a restraining order against the appellants, to restrain them from interfering with the asserted possession of the premises involved. The claims consisted of three groups known as the Tomcat, Pool and Bulldog.

The appellants filed an answer and a counter-claim in which they asserted a possessory right to a certain unpatented lode mining claim known as the Sombrero No. 1. The Court found the issues in favor of the appellees and quieted the title to the three groups of claims described in the complaint.

This appeal concerns only the mining claim of the appellants, known as the Sombrero No. 1, which conflicts with the appellees' claim known as the Bulldog No. 5. The opinion in this appeal with be limited to the two claims mentioned, since the appellants did not challenge the correctness of the judgment or decree as to the other claims, and since the appellants made no claim to the other property involved in the suit.

In the summer or fall of 1955, the appellees' predecessors in interest staked out their mining claims, which included the Bulldog No. 5, and posted location notices on them; copies were filed in the office of the county clerk of McKinley county. The notices were amended in the fall of 1955, the one covering the Bulldog No. 5 being amended about October 30, 1955. Conveyances were thereafter made to appellees to these purported claims including the Bulldog No. 5. The purported location work consisted of placing four inch by four inch posts at the corner of each claim, posting the notices thereon, and in some instances the digging of discovery holes. The court found that a discovery hole was dug on each claim, including the Bulldog No. 5, by the appellees or their predecessors in interest. This finding was supported by a statement of one witness to the effect that it had been reported to him by an employee that pits were dug on each claim by a bulldozer; but he was unable to verify this or to testify from his own knowledge that there was a pit on Bulldog No. 5. There are the positive statements of at least two witnesses that there were no pits on Bulldog No. 5 up to the date of the filing of the complaint, and we doubt that the findings of the trial court with respect to Bulldog No. 5 were supported by any substantial evidence.

In any event, it was conceded by everyone, on oral argument, before this court, that there was no pit which exposed mineral in place on Bulldog No. 5 at the time of the controversy. The evidence showed that the veins or bodies of uranium were approximately two thousand feet below the surface of the earth, and that no ten foot discovery pit would avail to expose mineral in place.

The pits which were dug on any of the the claims, other than the drill holes hereinafter mentioned, were done in the late fall of 1955.

The testimony at the trial was not confined to the two claims in contest, but evidence was introduced concerning activities of the appellees on other claims in the groups described in the complaint in an effort to show that, by an over all plan of action, work was being done looking to the development of all of the claims which would eventually include the Bulldog No. 5.

Whatever the economic reasons may be for following this over all plan of procedure, outlined by the appellees, this court is faced with the application of the existing law to the claim in question. We believe that it is fundamental law that a discovery must be made within the boundaries of the claim in order to make the location valid. We also believe that the statutory provisions requiring a discovery pit on each individual claim is a necessity to perfect the location.

In 30 U.S.C.A. Sec. 23, Congress has provided, among other things:

'but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.'

The words 'vein or lode' mentioned in this sentence refer back to a previous sentence in the section with regard to:

'Veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits.'

The appellees entered into working agreements with several other concerns by which several sections of public domain were included in a program for the development of uranium and intended to expend large sums of money over said areas. Tests for uranium had been made with geiger counters, scintillators, and electronic devices, to which tests there were 'favorable reactions' or 'pretty nice readings' on the surface. This was a general finding and was not confined to any specific claim or locality so far as the record shows. An organized system of drilling was commenced whereby nine holes had already been drilled in various places on appellees' claims. In April 1957, a drilling rig was being operated on appellees' land in the same section in which the Bulldog No. 5 claim was situated, but no drilling had been done on this claim.

Although it is not in the trial court's finding, there is testimony to the effect that sometime immediately prior to the event hereinafter related, the appellees had placed a stake with a red flag on Bulldog No. 5 as an indication of the spot where appellees intended to drill a discovery hole on the claim. The appellants denied that the stake and flag were on the premises when they took possession.

The Sombrero corporation, one of the appellants, obtained a quitclaim deed to twenty-three purported unpatented lode mining claims from a third party, which included, with other property, the same area as the Bulldog No. 5 and appellants' Sombrero No. 1. The location notices were never recorded and there was no evidence to establish what, if anything, was done in connection with these locations. Evidently the appellants do not base their claims on these locations, but rather on possessory rights under the doctrine of pedis possessio.

On April 16, 1957, the appellants moved a large drilling rig onto Bulldog No. 4, which joined the Bulldog No. 5. This rig was observed by some of the appellees' employees and pursuant thereto they drove to Grants, New Mexico, the next morning and phoned the attorneys for the appellees. Following this conversation the employees for appellees returned to Bulldog No. 4 sometime before noon of Apirl 17th, and advised Mr. Benedict that the appellees claimed the property in question. At this time there was no machinery belonging to the appellees on the property, and no steps had been taken at that time to do any development work whatsoever, unless it is conceded that a stake with a red flag had been placed on the premises as claimed by appellees which is not in the court's findings and which is a disputed question.

About noon of April 17th, the appellants' drill rig was moved onto Bulldog No. 5, and they started making preparations to drill on the premises. They placed two posts on the northern end of their proposed Sombrero No. 1, but had not yet had time to place the posts at the southern corners.

At about 1:30 in the morning of April 18th, appellees' employees or agents arrived at the scene in a car followed by a bulldozer. They were stopped by appellant Benedict somewhere within the boundaries of appellants' proposed claim. Mr. Benedict protested their entry and stood in front of the bulldozer. The bulldozer was started up and carried Mr. Benedict along for some 25 to 50 yards, when it stopped. Mr. Benedict vigorously protested and resisted the entry of the bulldozer, but he was removed from in front of it and it then went in and prepared a site for the drilling rig of appellees.

Mr. Benedict then departed from the scene of action and left a Mr. Horner in charge of his operations. When the drilling rig, belonging to, or operated by, the appellees came in the next morning, Mr. Horner stood in the way and resisted its entry. The parties in charge of the drilling rig compelled him to move out of the way, although he also protested and resisted. The drilling rig was then driven onto the claim and started drilling the morning of the 18th. The appellants' drill rig also started up on the morning of the 18th, so that both drilling rigs started the same morning. In other words their actual commencement of operations were simultaneous. The appellees completed their drilling before the appellants did, but each of them continued drilling from the time they started until they each discovered uranium ore. In other words each of them actively continued in drilling operations from the morning of the 18th until each of them had completed a discovery hole.

This court must first determine whether or not there was substantial evidence to support a suit to quiet title as to the Bulldog No. 5 claim. Secondly, if we should find that the evidence was insufficient...