Duguid v. Best

• Decision Date: 25 May 1961
• Docket Number: No. 17092.,17092.
• Parties: James DUGUID and Bertha V. Duguid, Appellants, v. Raymond R. BEST, as State Supervisor, Bureau of Land Management, Walter E. Beck, as Manager, District Land Office, Bureau of Land Management, Richard J. Litten, Chief, Lands Adjudication Unit, Bureau of Land Management, and Joseph E. Taylor, Assistant Regional Solicitor, California Region, Bureau of Land Management, Department of the Interior, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

291 F.2d 235 (1961)

James DUGUID and Bertha V. Duguid, Appellants, v. Raymond R. BEST, as State Supervisor, Bureau of Land Management, Walter E. Beck, as Manager, District Land Office, Bureau of Land Management, Richard J. Litten, Chief, Lands Adjudication Unit, Bureau of Land Management, and Joseph E. Taylor, Assistant Regional Solicitor, California Region, Bureau of Land Management, Department of the Interior, Appellees.

No. 17092.

United States Court of Appeals Ninth Circuit.

May 25, 1961.

COPYRIGHT MATERIAL OMITTED

Chas. L. Gilmore, Sacramento, Cal., for appellants.

J. Edward Williams, Acting Asst. Atty. Gen., S. Billingsley Hill and A. Donald Mileur, Attys., Dept. of Justice, Washington, D. C., Laurence E. Dayton, U. S. Atty., San Francisco, Cal., and Floyd R. Mitzner, Asst. U. S. Atty., Sacramento, Cal., for appellees.

Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge.

Appellants appeal from a summary judgment dismissing their complaint on the ground that there existed no genuine issue as to a material fact and that appellees were entitled to a judgment as a matter of law.

Jurisdiction of the district court is predicated on the alleged presence of a federal question, and upon Title 28 U.S. C.A. § 1331, and such jurisdiction is not questioned on this appeal. This Court has jurisdiction to review the judgment under Title 28 U.S.C.A. §§ 1291 and 1294.

In their complaint filed in the district court appellants alleged: that they are the owners in possession and are entitled to the possession of a certain mine and mining location situate in the Lassen National Forest public lands of the United States, County of Butte, State of California, known as "Clifford Mine", located July 5, 1936, and duly recorded in the official records of Butte County; that said mine and mining location contained a valuable deposit of gold bearing gravel; that said location was based upon discovery of gold and other valuable minerals within the limits thereof; and that they have been in possession of said mining claim and location ever since the date of location except as they were forcibly ousted from a portion thereof by Paradise Irrigation District, an irrigation district organized and existing under the laws of the State of California.

It further appears that on March 26, 1956, Paradise Irrigation District was granted a special use permit by the United States Forest Service, and right-of-way or easement to construct a dam and spillway at specified locations in the Lassen National Forest, a portion of which encroached upon the mining claim and location of appellants. This permit was granted "subject to all valid claims". Subsequent to the granting of the permit the Paradise Irrigation District, without the consent of appellants, entered upon, forcibly took possession of a portion of appellants' mining claim and location, and proceeded to construct a dam and spillway thereon. Thereupon appellants instituted an action against the irrigation district in the Superior Court of the State of California, in and for the County of Butte, on May 19, 1959, praying for damages in the sum of $30,000 for such taking, which action is pending and undetermined.

On February 1, 1960, the irrigation district filed in the District Land Office of the Bureau of Land Management of the Department of the Interior, at Sacramento, California, and with appellees, a complaint against the appellants as a private contest, seeking an adjudication by the Bureau of Land Management of the validity of appellants' mining claim. This complaint was dismissed due to formal deficiencies.

Later in February, 1960, another complaint was filed by the irrigation district in the District Land Office of the Bureau of Land Management at Sacramento, California, and with appellees, against the appellants as a private contest, seeking an adjudication by the Bureau of Land Management of the validity of appellants' mining claim. Said complaint alleged that its special use permit entitled it to use the lands specified in its permit, that appellants were asserting an adverse claim, and that the lands described in appellants' mining claim were non-mineral in character and insufficient to constitute a discovery. Appellants alleged in their complaint filed with the district court that the filing of this second contest was with the aid and assistance of appellees. Appellants were ordered to appear before the Bureau of Land Management in this contest proceeding.

On March 16, 1960, appellants instituted their action in the district court, seeking to enjoin and restrain appellees from proceeding in any manner in connection with the alleged private contest complaint filed with the Bureau of Land Management by the irrigation district. It was alleged in the complaint that the filing of said private contest complaint was without statutory authority; that the pendency of said contest proceedings would enable the irrigation district to hold and use appellants' mining claim without compensation and thereby cause irreparable injury and subject appellants to a multiplicity of suits; that unless such proceedings be restrained appellants would be required to enter upon a long costly administrative proceedings; that appellants had no adequate remedy at law since said administrative proceedings and an appeal therefrom would take two years, during which period the appellants would be denied the right to occupy and to mine their mining claim; that appellees were without jurisdiction to hear and determine the controversy; and that the controversy between the irrigation district and the appellants was entirely within the jurisdiction of the Superior Court of Butte County.

The private contest complaint of the irrigation district was attached as an exhibit to appellants' complaint. In this private contest complaint filed by the irrigation district it is alleged that appellants' mining claim is adverse to the special use permit; that the lands embraced within appellants' mining claim are non-mineral in character; that insufficient minerals occur in said land to constitute a discovery; and that the use by the irrigation district of land embraced within appellants' mining claim causes no damage to appellants. The irrigation district prayed that appellants' mining claim be declared null and void. Attached to the private contest complaint are the affidavits of the president of the irrigation district and the mining engineer employed by the irrigation district, which affidavits repeat by reference the allegations of the complaint.

Appellees filed no answer to the complaint filed by appellants in the district court. The motion for summary judgment was based on the pleadings and records filed in the case, and as grounds of said motion it is alleged: (1) that the Bureau of Land Management was authorized to determine in the private contest proceeding the validity or invalidity of appellants' mining claim; (2) that appellants have not exhausted their administrative remedies; and (3) that the Secretary of the Interior is an indispensable party.

The district court granted the appellees' motion for summary judgment and held that the complaint was insufficient in law and that the Bureau of Land Management was acting within its authority in proceeding to conduct the private contest instituted before it by the irrigation district.

Before giving specific consideration to appellants' contentions on this appeal, we deem it necessary to discuss the nature of the rights or interests of the appellants in the mining claim which they assert and seek to protect in the state court action, and to analyze the extent of the controversy claimed to exist between appellants and the irrigation district.

A prospector has a statutory right to enter on public land in search of minerals, Title 30 U.S.C.A. § 22.¹ A prospector who has made no discovery which would entitle him to any possessory rights of his claim against the government nevertheless has some possessory rights against forcible, fraudulent or clandestine intrusions while he remains in possession of his claim diligently working towards discovery. Union Oil Co. of California v. Smith, 1919, 249 U.S. 337, 39 S.Ct. 308, 63 L.Ed. 635. An extended discussion of the requirements of this doctrine, known as pedis possessio, is not required. It is sufficient to note that Congress has passed a statute recognizing this doctrine.²

Appellants, however, claim a greater right than that of a mere prospector. Appellants allege discovery of valuable minerals on land which is mineral in character. Accordingly they claim that right of exclusive possession which inures to the owner of a mining location which is perfected under the law but unpatented. Such an interest has been declared to be property in the fullest sense of that term. Wilbur v. United States ex rel. Krushnic, 1929, 280 U.S. 306, 50 U.S. 103, 74 L.Ed. 445; Ickes v. Virginia-Colorado Development Corp., 1935, 295 U.S. 639, 55 S.Ct. 888, 79 L.Ed. 1627; United States v. Etcheverry, 10 Cir., 1956, 230 F.2d 193. If a prospector may assert a possessory interest cognizable in a court of law, a fortiori the owner of such a perfected mining claim may do so.

We are satisfied from our review of the authorities and the provisions of Section 53, Title 30 U.S.C.A. supra, that appellants resorted to the proper forum in instituting their action in the Superior Court of the State of California, in and for the County of Butte, against the irrigation district to recover damages for the alleged trespass of the irrigation district on the possessory interest of appellants in the mining claim. Under the express language of said Section 53 the paramount title of the United States to the land in which such mining claim lies is not affected by such lawsuit, and the rights of the parties to such lawsuit must be adjudged by the law of possession. We recognize that there is a dispute between the parties as to the nature of...