Allen v. Laudahn

• Decision Date: 21 July 1938
• Docket Number: 6533
• Citation: 59 Idaho 207,81 P.2d 734
• Parties: J. A. ALLEN, Respondent, v. LUCY LAUDAHN, Appellant
• Court: Idaho Supreme Court

81 P.2d 734

59 Idaho 207

J. A. ALLEN, Respondent, v. LUCY LAUDAHN, Appellant

No. 6533

Supreme Court of Idaho

July 21, 1938

MINES AND MINERALS-LOCATION-DISCOVERY-LOCATION NOTICE-EVIDENCE - ADVERSE POSSESSION - ESTOPPEL - NONSUIT, WHEN SUSTAINED.

1. In action to quiet title to mining claim, wherein defendant filed cross-complaint asserting title under deed from prior locator, testimony of prior locator should not have been considered either to defeat or impeach his representations as to location evidenced by his deed to defendant where he had lived on and been in possession of mining property for 20 years, had filed location notices for all claims involved and affidavits of annual assessment work for all claims, and had represented ownership of claims by deed conveying three-fourths interest in claims to defendant.

2. Persons who locate a mining claim and record a location certificate of such location are estopped, as against a purchaser of an interest in the claim, from showing that the location is void for want of discovery of mineral in place within the limits of the claim. (30 U.S. C. A., sec. 38.)

3. As between a prior and subsequent locator of mineral claim evidence of discovery by prior locator will not be examined with great strictness where in order to sustain contest subsequent locator shows that ground in fact contains valuable mineral deposits and at same time contends that prior locator had not made a mineral discovery.

4. The locator of a mining claim is not required to be the first discoverer of a vein or lode in order to make a valid location, but if it appears that the locator knew at the time of making his location that there had been a discovery of a vein or lode within the limits of his location, he may base his location thereon and thus avoid the necessity of making a discovery for himself.

5. Location notices and records of mineral claims should receive a liberal construction to the end of upholding a location made in good faith.

6. In action to quiet title to mining claim, wherein defendant filed cross-complaint claiming interest under deed from prior locator, evidence was sufficient to establish prima facie valid location of claims under locations by prior locator under whom defendant claimed as against plaintiff's motion for nonsuit. (30 U.S. C. A., sec. 38.)

7. Locators who have filed for record their notices of location are presumed to have complied with the law and made a discovery.

8. The granting of a nonsuit where the plaintiff has made a prima facie case is reversible error.

9. In action to quiet title to mining claim, wherein defendant filed cross-complaint claiming under deed from prior locator and made prima facie case of valid location, rejection of proof of publication of notice of forfeiture of interest of third person with whom prior locator had located claim and deed from prior locator to defendant and agreement between prior locator and defendant for conveyance of interest in claim to show title by deed from prior locator to defendant was error.

10. In action to quiet title to mining claim, wherein defendant filed cross-complaint claiming under deed from prior locator and made prima facie case of valid location, testimony showing consideration paid by defendant to prior locator for deed should have been admitted.

11. In action to quiet title to mining claim, wherein defendant filed cross-complaint claiming under deed from prior locator and made prima facie case of valid location, rejection of testimony as to conversations and statements had with witnesses and made by prior locator in regard to discovery and location of mining claims was error.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action to quiet title. Judgment for plaintiff. Reversed and remanded for new trial.

Reversed and remanded. Costs awarded to appellant.

Leo McCarty and R. Hubbard, for Appellant.

Where a claimant to mineral lands has been in open, exclusive adverse possession of and working mining claims for a continuous period equal to that required by the local statute of limitations governing adverse possession of real estate, he is relieved of the furnishing of evidence of record title to same, and the burden is not upon him to show every step in the location of the mining claims, and every reasonable presumption will be indulged in favor of a discovery after a mining claim has stood unchallenged for years and work of importance done and the claim has been transferred to innocent purchasers. (18 R. C. L., p. 1128, sec. 39; 40 C J., p. 779, sec. 165, p. 867, sec. 360; Humphreys v Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823; Bradley et al. v. Johnson, 11 Idaho 689, 83 P. 927; sec. 38 of Title 30, U.S.C. A.; Glacier Mountain Silver Min. Co. v. Willis, 127 U.S. 471, 8 S.Ct. 1214, 32 L.Ed. 172.)

Cox, Ware & Stellmon and Therett Towles, for Respondent.

Discovery of a mining claim and marking of boundaries on the ground are not matters of record but in pais, and if disputed in an adverse suit or otherwise, must be shown by parol testimony. (Lindley on Mines, 3d ed., vol. 2, sec. 392, p. 921; Creede & Cripple Creek Min. etc. Co. v. Uinta Tunnel etc. Co., 196 U.S. 337, 352, 25 S.Ct. 266, 49 L.Ed. 501, at p. 510.)

The locator of a mining claim may base his location upon a prior discovery but he must perform additional work on the original discovery shaft or open cut or tunnel to the depth or extent of 10 feet and must erect new posts or monuments. (I. C. A., sec. 46-607; Pitcher v. Jones, 71 Utah 453, 267 P. 184.)

Compliance with the mandatory provision of the state statute as to discovery work is necessary to make a valid location, in the absence of which the claim is void. (I. C. A., sec. 46-603; Hedrick v. Lee, 39 Idaho 42, 227 P. 27.)

Mere occupancy of unpatented mining ground without other acts of location does not constitute a valid location thereof as against one who peaceably enters and prospects and makes a valid location. (40 C. J. "Mines and Minerals," sec. 163, p. 777; Whiting v. Straup, 17 Wyo. 1, 95 P. 849, 129 Am. St. 1093; Lindley on Mines, 3d ed., vol. 1, sec. 216, p. 476.)

BUDGE, J. Holden, C. J., and Morgan, Ailshie and Givens, JJ., concur.

OPINION

BUDGE, J.

This is an action brought by respondent to quiet title to certain mining claims in what is known as the Deer Creek Mining District, located in Nez Perce and Lewis counties. Both parties concede that their rights are subject to the paramount title of the United States.

It may be well at the outset to call attention to the fact that respondent Allen and appellant Laudahn are the only parties before this court, other matters in this litigation concerning various defendants and cross-complainants having been disposed of in the trial court.

Upon issues joined by the amended and supplemental complaint of respondent and the answers and cross-complaint of appellant the case came on for trial before the court without a jury and after appellant rested her case respondent made a motion for nonsuit which motion was granted as to the cross-complaint of appellant.

The material question for determination is contained in the following statement taken from respondent's brief:

"Respondent Allen went into possession and located the ground in controversy, not because he thought the claims had been abandoned or that no assessment work had been performed on them and they were subject to forfeiture, but because he had undisputable proof that valid mining locations covering the ground in question had never been created by McNeish under the 1928-1931 pretended location or the 1933 pretended locations." (Emphasis inserted.)

In other words, if we understand respondent's position, it is that McNeish made no valid discovery or location of the claims in controversy, either in 1928, '31 or '33.

The facts are substantially as follows: Prior to 1920 the Deer Creek Mining & Milling Company was the owner, subject to paramount title of the United States of a group of mining claims embracing the ground in dispute in this action. This corporation expended large sums of money in development and improvement, constructed a mill, flume, buildings concentration machinery, and tunnels and worked said claims as a group or unit of lode mining claims. In 1920, the Deer Creek Company failed to do the annual assessment work on the claims and abandoned the same. In August, 1928, McNeish and one Johnson located the Ajax, Orion and Bison claims, and duly and regularly filed notices of location of said claims with the county recorder of Nez Perce county. On June 11th, 14th, and 16th, and July 13th, 14th, 15th and 17th, McNeish alone located twelve further claims adjacent to and a part of the group of claims involved herein, and duly and regularly filed notices of location of said claims with the county recorder of Nez Perce county. All of the foregoing claims were upon the ground included in the claims of the Deer Creek Mining & Milling Company. Johnson who joined with McNeish in the location of the Ajax, Orion and Bison was not a party to this action and it is quite evident from the record that he claims no further interest in the mining claims involved. On January 19, 1933, McNeish, by mining deeds, conveyed to appellant an undivided three-fourths interest in all of the mining claims heretofore referred to, located by himself alone and himself and Johnson, pursuant to a contract theretofore entered into. There is evidence to the effect that appellant and McNeish expended for assessment and development work on the mining claims, the same being worked as a group or unit, more than $ 100 for each claim, completing the assessment work for the year ending June 30, 1933. There...