Berto v. Wilson
| Decision Date | 25 April 1958 |
| Docket Number | No. 4013,4013 |
| Parties | Clair BERTO and James Woolever, Appellants, v. William WILSON, Glen Woods, Orville Carlock, Bob Franks, and Charles Cavanaugh, Respondents. |
| Court | Nevada Supreme Court |
George G. Holden, Battle Mountain, Cecil S. Haynie, Grand Junction, Colo., for appellants.
William P. Beko, Tonopah, for respondents.
This is an action to quiet title to mining property. Mining claims located by the respective parties overlap and to that extent are in dispute. Judgment was entered by the trial court, sitting without jury, quieting title in the respondents to the property claimed by them. From that judgment this appeal is taken. The sole question involved is whether the record supports the determination of the trial court that respondents were senior in the posting of their claims and in the discovery of mineral in place and thus were senior in location of the disputed area.
The problem is an old one in modern setting. The rush to a new strike and the scramble for the most desirable locations set the stage for a drama well-known to the west. Today the magic word is 'uranium'; the scintillation counter and the mineral-light lamp have taken their places as prospectors' tools; the airplane and the 4-wheel-drive truck have reduced the factors of time and distance. The plot of the drama, however, remains essentially the same: the rush, the locations, the overlapping of claims, the discovery of values, the dispute. And in the orderly resolution of the dispute the principles of law remain substantially unchanged from the days of the mother lode and the Comstock.
Appellants' first contention is that the record fails to support the trial court's findings that respondents were first in the posting of their claims. There is no merit to this contention. The record amply supports the findings. Appellants are in the position of contending that the trial court chose to believe the wrong witnesses, a proposition which this court rejects. Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002; Canepa v. Durham, 65 Nev. 428, 451, 198 P.2d 290, 202 P.2d 286.
The record presents a tale worth the telling, however.
In October, 1955 the Atomic Energy Commission was engaged in a series of aerial explorations seeking by airborne scintillation counters to locate radio-active anomalies: areas in which scintillation indicates the presence of greater radio-activity than is normally found as natural background. Notice was given that an anomaly map would be posted on the morning of October 17, at the post office bulletin board in Tonopah, Nevada. Uranium prospectors thus alerted, were on hand ready for a race to the announced anomaly.
Respondents, while engaged in other mining activities, had observed the commission airplane in its explorations and judged that the anomaly would be located in southern Lander or northern Nye Counties. They gambled in support of their judgment and respondent Wilson was posted at Carver's Station in Smoky Valley, halfway between Tonopah and Austin, to await a telephone call from respondent Woods in Tonopah as soon as the map was posted. The call came at about 11 o'clock a. m. and Wilson was directed to a point a few miles south-east of Austin near the Blackbird ranch. He was off in a jeep at 75 miles an hour with a substantial lead over all competitors. He reached the anomaly area at about noon, first on the ground, and commenced his search for the anomaly by aid of scintillator. By 1:15 he was satisfied that he had found it. By 2 o'clock, when Woods arrived to join him, Wilson has posted two claims. The two men completed posting two additional claims, concluding at about 2:30. Location notices were immediately recorded at Austin.
Meanwhile, back at the Tonopah post office, appellants had prepared themselves with a plane stationed at the Tonopah airport and a rented pick-up truck. In their assault upon the anomaly it was to be Woolever by land and Berto by air. They ran into time-consuming difficulties, however. The truck broke down about halfway to Austin. The mishap was discovered by Berto who landed on the highway and took Woolever aboard with him. They returned to Tonopah to radio a request that arrangements be made for a truck to meet them at the Austin airport. En route back to Austin they detoured to fly over the anomaly area in an air reconnaissance. They observed several motor vehicles already there. By the time they had landed at Austin, had been driven to the anomaly area and had hiked in to the ground itself, several two-man parties were already at work posting claims. Several witnesses, including both respondents, testified to having seen the plane on its reconnaissance at about 2 o'clock. While appellants deny this and fix a much earlier time, we shall not question the manner in which the trial court apparently resolved this dispute.
We conclude that respondents have been properly established as senior in the posting of their claims.
Appellants next contend that the record discloses that respondents had not made any discovery of mineral in place on October 17 and that their locations for that reason cannot be recognized as of that date.
The right to location of a mining claim presupposes the discovery of a lode or vein, for that which is claimed is the lode which has been discovered. N.R.S. 517.010. The location of a mining claim, therefore, cannot rest upon the conjectural or imaginary existence of a vein or lode. King v. Amy & Silversmith Consol. Min. Co., 152 U.S. 222, 14 S.Ct. 510, 38 L.Ed. 419. In Cole v. Ralph, 252 U.S. 286, 40 S.Ct. 321, 326, 64 L.Ed. 567, involving conflicting mining claims in the state of Nevada, the court stated,
Appellants, having posted their claims on the 17th, returned to the property the following two days for further prospecting and location work and the staking of corners. Several shallow pits were dug and a deposit of radio-active mineral-bearing ore was uncovered. Samples were taken which proved to be autunite, a commercially valuable uranium-bearing ore.
Respondents, on the other hand after posting their claims and recording location notices on the 17th, were required to return to Tonopah that same day due to the illness of respondent Woods. They did not return to their property for six days. On their return they came prepared for active mining. A shaft was dug at their original point of...
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