Globe Min. Co. v. Anderson

• Decision Date: 19 November 1957
• Docket Number: No. 2761,2761
• Citation: 318 P.2d 373,78 Wyo. 17
• Parties: GLOBE MINING COMPANY, a Wyoming Corporation, Plaintiff and Appellant, v. Karl John ANDERSON, George E. Fairfield, and H. J. Beach, Defendants and Respondents.
• Court: Wyoming Supreme Court

Page 373

318 P.2d 373

78 Wyo. 17

GLOBE MINING COMPANY, a Wyoming Corporation, Plaintiff and Appellant, v. Karl John ANDERSON, George E. Fairfield, and H. J. Beach, Defendants and Respondents.

No. 2761.

Supreme Court of Wyoming.

Nov. 19, 1957.

W. T. Schwartz, William H. Brown, Jr., and G. Joseph Cardine, Casper, for appellant.

W. A. Smith and W. J. Nicholas, of Smith & Nicholas, Lander, for respondents.

Heard before BLUME, C. J., PARKER, J., and McAVOY, District Judge.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff, ¹ Globe Mining Company, successor in interest to the partenership of H. D. Hand and Page T. Jenkins, brought a suit in Fremont County to quiet title on ten lode mining claims, Phil Nos. 3-12. Plaintiff alleged that, as relating to said land, beginning October 2, 1953, it had complied with Federal and Wyoming mining laws pertaining to location of lode claims but in defiance of plaintiff's interest defendants had entered upon said claims May 5, 1955, overtaking same and attempting to initiate rights thereon. On May 12, 1955, the court issued a temporary restraining order against defendants who thereafter filed an answer and cross-petition, denying any rights of plaintiff, alleging themselves to be the legal owners of a substantial portion of said lands by virtue of compliance with the Federal and Wyoming mining laws on their five lode claims, Andria and Andria Nos. 1-4, and praying that title be quieted in them. ²

The trial court in 'findings of fact,' expressing views on the law as well as the facts, decided against plaintiff and in favor of defendants, entering judgment accordingly. From the judgment plaintiff has appealed, filing fifty-six specifications of error, fifty-one of these complaining of erroneous findings, two of improper rulings on the admission of evidence, one of the court's basing judgment on its view of the premises, and one on the denial of plaintiff's application to reopen the case for the receiving of evidence of the Atomic Energy Commission's work performed on plaintiff's claims.

In brief the background of the litigation is as follows: In September 1953 plaintiff by means of airborne scintillation counter determined that there was a highly radioactive anomaly in the area; in October examined the ground on foot, determined its geology to consist of the Wind River formation, a coarse sandstone lying in a relatively horizontal bed or lode with a radioactive count ranging from two to seven times a normal background, took samples from that portion of the area later staked as Phil Nos. 5, 6, 8, and 10, posted location notices, staked the ground, and caused signed copies of the notices to be recorded with the county clerk. In November plaintiff caused a discovery pit or cut to be dug on each of the claims, arranging with a mining engineer to take samples and assay them. (An effort was made to prove that in April 1954 the A.E.C. through some understanding with plaintiff performed drilling work on the claims and made certain assays from samples taken from the claims, but this evidence encountered objection and was excluded by the court.) Beginning in July 1954 Stanley Grant, a geology student sponsored by plaintiff, made a study of the region, including the Phil claims, with a view to completing a thesis for a master's degree in geology. In August and September 1954 the American Smelting and Refining Company under a lease arrangement with plaintiff made some reconnaissance of the area embraced by the claims, taking at least one sample and preparing an isorad map. On December 31, 1954, the American Smelting and Refining Company relinquished its lease to plaintiff; and plaintiff then employed Eldridge Lockhart as mining superintendent to look after some 120 claims which plaintiff had in that vicinity and get 'the area in hand so that it could be explored and exploited.' Beginning in late December 1954 or early January 1955 and continuing into March, Lockhart according to his testimony did some shallow digging on Phil Nos. 5, 6, 7, and 8 and blocked out material which he later expected to mine.

In May 1955 the defendants discovered the anomaly by airborne means, inspected the ground, decided it was of value, and believing that plaintiff's location was defective took steps to locate the Andria claims in an area principally within that covered by Phil Nos. 3-12, precipitating the action now under consideration.

The trial court in the 'findings of fact' lists four essential steps for establishing a valid lode mining claim under the Federal and Wyoming statutes as 'discovery,' 'discovery working,' 'marking of boundaries,' and 'filing of certificates of location.' It would serve little purpose to pursue the arguments of the parties on the various specifications of error since the ultimate determination of the case depends largely upon the measure of plaintiff's compliance with the statutes in accomplishing the four requisite steps.

This court in a case relating to the title of lode mining claims has previously enunciated the well-settled rule that 'unless the judgment is without support in, or is clearly against the weight of, the evidence, it will not be set aside.' Columbia Copper Min. Co. v. Duchess Mining, Milling & Smelting Co., 13 Wyo. 244, 79 P. 385, 387. Accordingly, it is desirable that we view the findings herein to determine whether or not each portion thereof is supported by or is clearly against the weight of the evidence, accepting that which is supported and rejecting that which is unsupported.

Proceeding then to 'discovery' we find that under the Federal statute 'no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.' R.S. § 2320 (1878), 30 U.S.C.A. § 23.

The parties hereto do not insist that the mining statutes relating to the location of lode claims are inapplicable in the present situation. Nevertheless, a search of the record and a review of current thinking seem to indicate that secondary uranium deposits do not usually occur within clearly defined veins of county rock in the same manner as do most of the minerals with which earlier cases are concerned. Plaintiff both in its evidence and argument stressed the fact that the mineralized area under litigation consisted of a 'horizontal lode.' The court repeated this testimony, tacitly, if not actually, approving same; and defendants, calling attention to the fact that plaintiff has merely assumed such a vein, nevertheless do not challenge it.

The trial court indicated that there must be a discovery of valuable mineral 'in a lead, lode, ledge or vein or rock in place,' using each of these terms synonymously; and no question has been raised by the parties as to this interpretation. ³ Accordingly we need not pursue any detailed definition of the word lode ⁴ but instead shall look to the evidence of the parties and the findings of the court.

In the 'findings of fact,' the court stated that plaintiff took:

'* * * three samples from the area within the boundaries of what was later staked as Phil Claims numbered 6 and 8 and at a point on the boundary line between Phil Claims 5 and 6. The evidence does not disclose that these samples were taken from a vein or rock in place. When assayed they showed the presence of uranium.'

This positive finding of the discovery of uranium on these three claims, which finding is borne out by the evidence and is unquestioned by the defendants, presents a situation requiring a review of the evidence as to the nature of the place from which these assay samples were taken.

On this point Hand testified that on October 6, 1953, from Pit A on what later became Phil No. 6, he took a sample, chiseling a channel down the side of the pit through yellow mineralization 'in place'; from Pit A-2 on what later became a midway point in the center end line between Phil Nos. 5 and 6, he took a sample from 'mineralization in place'; and from Pit A-3 on what later became Phil No. 8, he took a sample from 'rock in place' and stated that this was sampled 'in the same manner as the other two.' The assays of these samples by the Brown Laboratory were admitted in evidence as Exhibit 6 without objection and showed quantities of U sub3 O sub8 as well as V sub2 O sub5 , on which analyses the court apparently relied in finding that the samples 'showed the presence of uranium.' The above-mentioned evidence standing uncontradicted as it does must be taken as conclusive proof of plaintiff's discovery of secondary uranium in a vein or rock in place.

The trial court found that with the exception of the discoveries on Phil Nos. 5, 6, and 8 Hand took no samples or assays from the other Phil claims; that Newman and Hewitt in 1954 collected samples from a pit on Phil No. 8, which when assayed showed uranium; that Grant in 1954 obtained some mixed samples, the assays of which showed uranium; and indicates that no further assays were taken. The evidence disclosed by the record substantiates this latter finding. A report of assay (Exhibit 27) disclosed uranium in samples taken from various of these claims, but there was nothing to show that this was from rock in place. There was an attempt made to introduce evidence of the assays of samples taken from drilling by the A. E. C. on Phil Nos. 4, 5, and 6 (Exhibit 28); but this evidence was correctly rejected by the court for lack of proper foundation after plaintiff's witness, Jenkins, had stated:

'All I can say is that we send very few samples to the Atomic Energy Commission for assay, and this would be a case where just by deductive reasoning I am sure that these are samples that we took from the Phil 4, 5 and 6 claims and sent to the Atomic Energy Commission. * * * I can't positively say that these samples passed from my hands to the Atomic Energy Commission.'

Thus, there was no evidence of a sampling and assaying of a vein, lode, or rock in place in Phil Nos. 3, 4, 7,...