Griffith v. Noonan

• Decision Date: 26 January 1943
• Docket Number: 2230
• Citation: 58 Wyo. 395,133 P.2d 375
• Parties: GRIFFITH ET AL. v. NOONAN ET AL
• Court: Wyoming Supreme Court

133 P.2d 375

58 Wyo. 395

GRIFFITH ET AL. v. NOONAN ET AL

No. 2230

Supreme Court of Wyoming

January 26, 1943

APPEAL from the District Court of Crook County; HARRY P. ILSLEY Judge.

Action by I. G. Griffith and others against Florence E. Noonan and others, to quiet title to a mining claim. From a judgment for plaintiffs, C. C. Fletcher and some of the other defendants appeal.

Affirmed.

For the appellants the cause was submitted on the brief of Preston T McAvoy and E. E. Wakeman of Newcastle.

The issue involves the possession of lands in Crook County containing deposits of bentonite, under conflicting placer mining locations. Respondents' location is invalid, having been made on segregated lands. McClary et al., 50 L.Ed. 623; Filtrol Co. v. Brittan and Eckhart, 51 L. D. 649; Kendall v. San Juan Silver Mining Co., 144 U.S. 658. The rule applies to oil and gas prospecting permits. Stewart v. Peterson, 28 L. D. 515; California Co. v. Hulen and Hunnicutt, 46 L. D. 55; Moon v. Woodrow, 51 L. D. 118; Holt v. Murphy, 207 U.S. 407; Pratt et al., 38 L.Ed. 146; Martin Judge, 49 L. D. 171; Young v. Peck, 32 L. D. 102. Land is not subject to other appropriation until notice of the cancellation of the old entry or withdrawal is noted upon the records of the local land office. Respondent failed to perform assessment work as required by U. S. Code, Title 30, Section 28; Sherlock v. Leighton, 9 Wyo. 297. Where the work is done for the benefit of a group of claims, it must be applied to all. Duncan v. Eagle Rock Gold Mining Company, 111 P. 588; White Copper Mining Company, 22 L. D. 252. The contention here applies only to the Northwest Quarter of the Southwest Quarter and the Southwest Quarter of the Northeast Quarter of Section 24, which are the lands in conflict, and it is submitted that appellants should have judgment quieting their titles thereto.

For the respondents the cause was submitted on the brief of Raymond & Guthrie of Newcastle.

Appellants' contentions as set forth in their brief are not sustained by the record. The oil and gas permits terminated by operation of law and not by a rule of the Department. The rule for which appellants contend is a rule adopted by the Land Department as an administrative measure. It does not apply in this case as the rule adopted by Congress succeeds and supersedes it in the case of the cancellation of oil and gas permits. All of the cases cited by appellant were decided prior to the enactment of the statute we are discussing and would seem to have no application to the facts here. Act of Congress, August 21, 1935, 49 Stat. 674. A case pending in the Department is subject to any rule that the Department may make, but the cancellation of a permit brought about by the repeal of the law under which it was granted is subject only to the date fixed by that law. The appellants seek to enforce a rule of the Land Department in the face of a different rule passed by Congress. The second contention of the appellants is that the required assessment work was not performed. The question was decided adversely to them on conflicting testimony and will not be disturbed by this court. Road work is accepted as assessment work if beneficial to claims. Doherty v. Morris (Col.) 28 P. 85; Sexton v. Washington, 104 P. 614. Moreover the question is not one to be determined by the courts. Wilson v. Freeman, 75 P. 86; McCullough v. Murphy et al., 125 F. 147. The main test is the reasonable value of the work to the mine and not what was paid for it. McKay v. Newster, 148 F. 86; Whalen Const. Co. v. Whalen, 127 F. 611; Stolp v. Treasury, 80 P. 817. Respondents have acted in good faith. Forfeitures of mining claims are not favored by the law. 27 Cyc. 600. It is submitted that respondents are entitled to possession of this land both in law and in equity.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action to quiet title to a bentonite mining claim of 160 acres covering the N/2SW/4, NW/4SE/4, SW/4NE/4, Sec. 24, T. 50 N., R. 66 W. 6th P. M., in Crook County, Wyoming. The trial court awarded judgment to the plaintiffs as asked. Some of the defendants disclaimed an interest in the land, having conveyed their rights to the Eastern Wyoming Bentonite Company, and neither they nor that Company have appealed in this case. Some of the defendants, however, have appealed, and the dispute herein is between these appellants, defendants below, and the plaintiffs, respondents in this court.

The facts, so far as pertinent herein, are substantially as follows: On June 29, 1933, the Department of the Interior granted an oil and gas prospecting permit to one Walter F. Tracy for the period of two years covering the land in controversy here and other lands. On August 21, 1935, by Act of Congress (49 U.S. Stats. at Large, part 1, p. 674), the oil and gas leasing law of February 25, 1920, was amended in certain respects, and provided, among other things, as follows: "Provided that all permits outstanding on the effective date of this amendatory act which on said date shall not be subject to cancellation for violation of the law or operating regulations and which have theretofore been extended by the Secretary of the Interior, shall be and the same are hereby extended until December 31, 1937, subject to the applicable provisions of such prior extensions; provided further, that the Secretary of the Interior is hereby authorized to extend for the additional period of not to exceed one year any permit on which diligence has been exercised or on which drilling or prospecting has been suspended at the direction of the Secretary during the extension period hereby granted, but no extension of any permit beyond December 31, 1938, shall be granted under authority of this or any other act." Further provisions for extensions of certain leases were granted by Act of Congress approved August 26, 1937 (50 U.S. Stats. at Large, part 1, 842). But it is not claimed that the oil and gas lease in question here came within the provisions of that act. On May 28, 1938, the administrative geologist of the United States Department of the Interior reported to the Commissioner of the General Land Office that the lease in question in this case was not eligible for an extension under the Act of Congress last mentioned. On July 12, 1938, the Commissioner aforesaid reported to the Registrar of the local Land Office at Buffalo, Wyoming, that the oil and gas lease above mentioned was unconditionally extended to December 31, 1938, by the Secretary's order of December 23, 1937, and further stated: "This permit may not be extended beyond December 31, 1938, but the right to prospect the land may be continued under lease by the filing on or before that date of an application to exchange the permit for a lease under the provisions of the Act of Congress of August 21, 1935." According to the letter of the Commissioner of the General Land Office directed to the local office at Buffalo, Wyoming, dated February 24, 1940, the oil and gas lease was noted as cancelled on the records of the office at Buffalo as of March 25, 1940. In the meantime, I. B. Griffith, one of the plaintiffs and respondents in this case, had evidently written to the aforesaid Commissioner with reference to whether or not the lands herein involved were subject to location of a mining claim. By letter of March 28, 1939, he was advised by the Commissioner of the General Land Office that the oil and gas permits above mentioned "terminated December 31, 1938, by operation of law. They have no legal standing and this office knows of no objection to a location of the lands if mineral in character under the United States mining laws." Thereupon, and on the 17th day of May, 1939, the plaintiffs and respondents herein located the bentonite mining claim in controversy herein, placing monuments at the corners of the claim, posting notices thereon, making the discovery and filing the notice of location for record in the office of the county clerk of Crook County, Wyoming. Subsequently, on June 28, 1940, they filed an affidavit that the proper assessment work on this claim and other claims had been duly made. And there is testimony in the record that the work as stated had been done. On May 14, 1940, the appellants herein also located a bentonite mining claim on part of the land in controversy herein, namely, on the SW/4NE/4, and on that date part of the appellants located a similar claim on the NW/4SW/4 of the section and township above mentioned. And the dispute herein relates to the validity of these locations as against the location made by the plaintiffs about a year previously. The appellants contend, first, that the location of plaintiffs on May 17, 1939, was prematurely made and therefore void, and, second, that they, plaintiffs, did not thereafter do the proper assessment work as required by law.

1. Counsel for appellants have cited us to various decisions of the United States Land Department, for instance, Joseph E McClory, 50 L.D. 623, where it was held that the granting of an oil and gas prospecting permit precludes, as long as the permit is in force, the appropriation of the land for metalliferous minerals under the United States mining laws. That, too, was held in Filtrol Company v. Brinton & Eckhardt, 51 L.D. 649. The correctness of these decisions may be conceded, but the question herein is as to whether or not the oil and gas prospecting permit above mentioned was in force on May 17, 1939. Under the Act of Congress of August 21, 1935, hereinbefore mentioned, the permit expired on December 31, 1937, with the right on the part of the Secretary of the Interior to grant an extension of the permit for an additional year, but no longer. That extension was granted. The...