Dredge Corp. v. Husite Co., 4413
| Citation | 369 P.2d 676,78 Nev. 69 |
| Decision Date | 28 February 1962 |
| Docket Number | No. 4413,4413 |
| Parties | The DREDGE CORPORATION, a Nevada Corporation, Appellant, v. HUSITE COMPANY, a Nevada Corporation, Respondent. |
| Court | Supreme Court of Nevada |
Deaner, Butler & Adamson, Las Vegas, George W. Nilsson, Los Angeles, Cal., for appellant.
Cantwell, Loomis & Murphy, Reno, for respondent.
Appellant corporation, which was plaintiff below, will be referred to as Dredge. Respondent corporation, defendant below, will be referred to as Husite. Dredge filed its complaint to quiet title to eight community placer mining claims, alleging that it was the owner and entitled to possession thereof, and that Husite asserted an estate or interest therein, which was, however, without right. The land covered by the placer claims is described as sections 16 and 21, T. 20 S., R. 60 E., M.D.B. & M., in Clark County, Nevada. The pleadings will have to be referred to later at greater length. Under such pleadings and under the circumstances hereinafter set forth, both parties sought a summary judgment. Dredge's motion for summary judgment was denied, and Husite's motion for summary judgment granted and judgment entered accordingly. From such judgment Dredge has appealed.
Dredge claims title by reason of its placer locations. Husite asserts title by reason of two patents from the United States for some 12,000 acres of land, including the two sections embraced in the placers. The summary judgment in favor of Husite was based on Husite's patents. See infra, the chronological order of the locations, filings, etc.
Dredge's amended complaint contained two counts. The first count alleged simply its ownership of the eight placers, Husite's claim of title, and that the latter was without right. The second count included such allegations and alleged that Husite claimed title to the described lands in fee simple by reason of two patents from the United States government; that said patents were issued in exchange for other lands which were subject to a reservation of minerals by Southern Pacific Land Company, former owner, and that Husite's application for an exchange of lands excluded 'existing gas and oil leases and other valid mineral rights'; that, under the provisions of the Taylor Grazing Act, when an exchange is based on lands of equal acreage and the selected lands are mineral in character, the patent shall contain a reservation of minerals to the United States; that since Husite's application and amended application under the Taylor Grazing Act offered to exchange lands in which minerals were reserved, and that since the Husite application excluded valid mining claims, Dredge, 'the owner of eight valid placer mining claims,' was not required to file any objection to such application for exchange; that at the time of Husite's application Dredge was the owner of said mining claims; and that by reason of the premises the United States was without authority to grant a fee simple title to Husite, and that Husite holds all mineral rights in said claims in trust for Dredge. Dredge accordingly prayed that its title be quieted to the placer claims and that Husite be enjoined and barred from asserting any adverse claim therein; also that the court adjudge that Husite holds in trust for Dredge the said sections 16 and 21.
Husite answered, admitting that it claimed title by reason of the two patents which were issued by the United States in exchange for lands which were subject to a reservation of minerals by the Southern Pacific Land Company, a former owner, and admitting that its application for exchange excluded 'existing gas and oil leases and other valid mineral rights,' and admitting the provisions of the Taylor Grazing Act, above recited, in connection with reservation of minerals to the United States. Husite's second defense asserted that the particular provision of the Taylor Grazing Act, relied upon by Dredge, was only a partial recital of the provision, was not applicable to the exchange in question, and cited at length provisions of the Taylor Grazing Act assertedly applicable to the present exchange whereunder either party to an exchange may make reservations of minerals, easements, or rights of use.
As a third defense, Husite alleged that the complaint failed to state a claim against Husite upon which relief could be granted. As a fourth defense, Husite pleaded that Dredge had waived any right to hold the placer mining claims because it had failed to file a protest to the exchange application, although with notice and knowledge of the proposed exchange. Husite's sixth defense was that Dredge was guilty of laches in that it had notice of Husite's claim to absolute and exclusive ownership and nevertheless refrained from commencing any action at law or equity 'to enforce its rights for a period of more than four years after patents to said property were issued' to Husite. As a seventh defense, Husite asserted an abandonment by Dredge by reason of its failure to protest Husite's application.
Husite's eighth defense alleged that Dredge's claim was invalid in that its locations prior to patent were void after the issuance of patent. Husite's ninth defense alleged that Dredge does not hold a legal mining claim on the asserted placers in that (among other things) (c) the property described in the amended complaint is nonmineral in character and not subject to location or holding under the laws of the United States or the State of Nevada; and (d) that plaintiff had not discovered minerals within the limits of said claims or any of them, sufficient in quantity or quality to constitute a valid discovery.
Other paragraphs and subdivisions of paragraphs contained in the answer have been omitted as unnecessary to the determination of the appeal.
Husite's counterclaim alleged that it was and had been for many years the owner and in possession of all said sections 16 and 21 under patents identified by number, issued by the United States pursuant to an exchange of lands under the provisions of 43 U.S.C.A., Chap. 8A, § 315g (Supp.1961), subsections (b) and (d), Taylor Grazing Act, as amended, and regulations of the Secretary of the Interior, 43 C.F.R. 146; that Dredge claimed an adverse interest by reason of certain mining claims, but that Dredge had failed and neglected to protest or file objection to Husite's application for patent, although with notice and knowledge thereof and that its claims were without right and prayed that Dredge be barred from asserting any claim to the land. Annexed to such answer and counterclaim as exhibits were photostat copies of the two United State patents referred to. The first patent reserved to the United States all oil and gas deposits covered by existing oil and gas leases and all uranium, thorium, or any other material which is or may be determined to be peculiarly essential to the production of fissionable materials. The second patent quitclaimed to Husite all rights possessed by the government by reason of the reservation contained in the first patent.
Dredge replied to the counterclaim, admitted Husite's holding of the patents as alleged by it, but alleged that the patents were ineffective to convey to Husite the mineral rights, and alleged that notice to Dredge of the exchange application was ineffective so far as concerns, Dredge's right to the land.
Husite moved for a more definite statement and Dredge now relies upon the information given in such 'More Definite Statement' in response to such motion as establishing facts precluding a summary judgment in favor of Husite. To show more definitely 'the means by which and the date on which Plaintiff and its predecessors in interest 'became the owner and entitled to possession' of said mining claims as alleged in * * * the complaint,' as a showing of such facts, we find Dredge's statement: 'Plaintiff became the owner and entitled to possession of the following mining claims by reason of the original location of said claims on the dates shown on the following schedule.' Here each of the eight placers is then listed, with description of the legal subdivisions covered, each being a quarter section, and each showing its 'Document No.' (which we may assume for the purpose of this opinion to be that of the county recorder, although it is not identified as such) and each noting as 'Dated Recorded, 7/14/52.' It is then further recited: 'The date of discovery of minerals corresponds to the date of location of said claims as shown by [said] schedule.'
Such statement is unverified but is signed by the attorneys for Dredge. Other than such 'More Definite Statement' and the statement of Dredge's conclusions of law in its amended complaint that it is the owner of and entitled to the possession of the eight described placers, and any admissions found in Husite's pleadings, there is nothing further in the record to support the repeated contentions in appellant's briefs and oral argument that Dredge was and is the owner of these eight 'valid' placer mining claims. Dredge did not oppose Husite's motion for summary judgment by submitting the originals or copies of the location notices referred to in its schedule supporting its 'More Definite Statement.' Perhaps more important, it did not allege the recording of any location certificates or facts required by statute to be contained therein. And perhaps more important still, it did not by affidavit or otherwise submit any proof that it had ever made a discovery--and this, in the face of the admitted patents issued to Husite, covering the same ground under its original application filed over two years prior to the date of the purported location notices. We discuss later the entire absence of statutory or other presumption of discovery or location resulting from the recording of the location notices.
At this point it would be well to indicate the chronology of the filings involved in this appeal.
July 19, 1950...
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