Hagerman v. Thompson

• Decision Date: 18 September 1951
• Docket Number: No. 2519,2519
• Citation: 235 P.2d 750,68 Wyo. 515
• Parties: HAGERMAN et al. v. THOMPSON et al.
• Court: Wyoming Supreme Court

Page 750

235 P.2d 750

68 Wyo. 515

HAGERMAN et al. v. THOMPSON et al.

No. 2519.

Supreme Court of Wyoming.

Sept. 18, 1951.

Raymond, Guthrie & Raymond, Newcastle, for appellants.

Otis Reynolds, Sundance, Earl Dunlap, Gillette, for respondents.

BLUME, Justice.

This is an action brought by plaintiffs to quiet title to a placer mining claim, called the 'Little Side,' consisting of the SE 1/4 of the NE 1/4 the NE 1/4 of the SE 1/4 of Section 21 and the NW 1/4 of the SW 1/4 of Section 22, all in Township 50 North of Range 66 West of the 6th Principal Meridian, in Crook County, Wyoming. The trial court quieted the title to this claim in the plaintiffs as prayed for in the petition, and the defendants, hereinafter generally called the appellants, have appealed to this court.

To better understand this opinion, it might be well for the reader to draw for himself a rough map of Sections 21 and 22, hereinafter mentioned, and divide them into forty-acre tracts.

The placer mining claim here in question adjoins a patented placer mining claim called the Griffith No. 30 which consists of the SW 1/4 of the NW 1/4, the NW 1/4 of the NW 1/4 of Section 22 and the N 1/2 of the NE 1/4 of Section 21, Township 50, Range 66. The defendant, Roy N. Thompson, owns the surface rights of the 120 acres here in question. He and one J. E. Taylor, had filed a placer claim on the lands directly in question herein on July 8, 1937. At that time, however, these lands were included in an oil and gas prospector's permit held by one Walter F. Tracy, so it is admitted herein that the location made at that time was void. Griffith v. Noonan, 58 Wyo. 395, 133 P.2d 375. It appears that one of the plaintiffs in this case called Thompson's attention to the fact that his location made in 1937 was void but Thompson paid no attention to that. Subsequently on July 26, 1944, Hagerman, Griffith, and others located the placer mining claim in question here. The witness, Hagerman, testified that he posted a discovery notice within the boundaries of the claim at the time of the location. He adopted three corners of the so-called Griffith No. 30 above mentioned. That claim, as may be noted, adjoins the claim in question here on the north and part on the east. The portion on the east side consists of the SW 1/4 of the NW 1/4 of Section 22, township and range aforesaid, and is accordingly directly north of the NW 1/4 of the SW 1/4 of Section 22 in question here and directly east of the SE 1/4 of the NE 1/4 of Section 21, township and range aforesaid, also included in the Little Side placer mining claim involved in this action. Hagerman testified that after having duly made discovery of bentonite, he and his co-locators adopted three of the corners of the Griffith No. 30 above mentioned, in the SW 1/4 of the NW 1/4 of Section 22 aforesaid as corners of the claim of plaintiffs, all of which had substantial posts four inches square and three feet above the ground, placing a location notice at Post No. 1 on the northeast corner of the SE 1/4 of the NE 1/4 of Section 21 aforesaid, in a tobacco can nailed to the post. Post No. 2 (as marked in the record), one of the Griffith No. 30 posts, was at the northeast corner of the NE 1/4 of the SE 1/4 of Section 22 aforesaid; Post No. 3 at the northeast corner of the NW 1/4 of the SW 1/4 of Section 22 aforesaid. Hagerman also testified that he or I. B. Griffith erected substantial posts four inches square and three feet above the ground at other corners, namely, Post No. 4 at the northwest corner of the SE 1/4 of the NE 1/4 of Section 21 aforesaid; Post No. 5 at the southwest corner of the NE 1/4 of the SE 1/4 of Section 21 aforesaid; Post No. 6 (4 inches in diameter) at the southeast corner of the NW 1/4 of the SW 1/4 of Section 22 aforesaid. A mark was put on each of the posts to show what it was. Just what the mark was is not clear. In other words, he testified that substantial posts existed or were placed at six different corners of the mining claim in question here. This testimony is corroborated by other witnesses. The Griffith No. 30 above mentioned is a patented claim and was surveyed by one Cyrus Russell, a licensed surveyor of the state, who surveyed the claim in 1939 or 1940 and established the corners, as he claimed, according to the original government survey. The testimony shows that the corners Nos. 1, 2 and 3 established by Russell were generally recognized as the correct corners for many years. The witness Robinson, a surveyor, resurveyed the land subsequently and claimed that the corners established by Russell were not correct. That matter will be mentioned hereafter more fully. The testimony further shows that while stakes Nos. 5 and 6 apparently had disappeared, nevertheless one was standing at least at the corner where the location notice was posted, and seemingly at corners mentioned as 2 and 3. According to the witness Messersmith corners (posts) Nos. 2 and 3 and perhaps No. 4 were easily visible when standing at corner (post) No. 1. The witness Robinson testified that when he made his survey and after looking over the notice of location placed by Hagerman, he knew exactly what ground the plaintiffs involved were claiming. Hagerman testified that work was done on the claim by the plaintiffs in 1945, 1946 and 1947, but that the defendant Thompson attempted to stop the plaintiffs from doing their assessment work in 1948.

On September 3, 1946, the defendant Roy N. Thompson, and others, filed a placer relocation notice and certificate dated August 23, 1946, in the office of County Clerk, Crook County, Wyoming, claiming the location of these lands here in dispute. They relocated the claim on October 1, 1947, after Robinson had surveyed the land. The court among other things found: 'That at the time defendants attempted to make their locations on August 23, 1946 and October 21, 1947 respectively, they had actual notice of plaintiffs' location of the Little Side claim and the boundaries thereof.' The testimony in the record, we think, sustains this finding of the court, and in fact no question in that connection seems to be raised in the briefs filed on the part of the appellants in this court.

The location notice of the plaintiffs filed in the office of the County Clerk, Crook County, Wyoming was as follows: 'Notice Is Hereby Given That we, the undersigned citizens of the United States, having complied with the requirements of Chapter Six, of Title Thirty-two of the Revised Statutes of the United States [30 U.S.C.A. § 21 et seq.] and the laws of the State of Wyoming; have on the 26 day of July, A. D. 1944, located _____ Acres of Bentonite Mining Ground, situated in unorganized district, Crook County Wyoming, and described as follows, to-wit: S.E.4 NE4 NE4 S.E.21 N.W.4 S.W. 22 Section 22-21, Township 50 North, Range 66 West, said claim to be known as the Bentonite Placer Mining Claim.' This notice was signed by Arthur L. Hagerman and others, all of whom were citizens of the United States. It would seem that the location notice placed in the can attached to one of the posts of the claim in question contained the name of the claim, namely that of 'Little Side' or possibly 'Little Cycle.' Subsequently and on May 3, 1949, the locators of the Little Side Mining claim filed in the office of County Clerk, Crook County, Wyoming, the following amended location notice: 'Know All Men By These Presents: That we, Arthur L. Hagerman, Minnie D. Hagerman, Charles M. Hagerman, I. B. Griffith, Elsie O. Diehl, and Alfred N. Diehl, the undersigned citizens of the United States, having complied with the provisions of Chapter 6, Title XXXII of the Revised Statutes of the United States and with the local customs, laws and regulations, claim by right of discovery and location and by this amended location certificate, the Little Side placer mining claim, containing 120 acres, situate, lying and being in an unorganized mining district, Crook County, Wyoming, described as follows, to-wit: The southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of Section 21, the northwest quarter of the southwest quarter of Section 22 in Township 50 North of Range 66 West of the Sixth Principal Meridian, Wyoming. The mineral claimed and to be mined hereunder, being a clay commonly called Bentonite. Being the same claim originally located on the 26th day of July, 1944 and recorded on the 1st day of August, 1944 in Book 85 on page 381 in the office of the county clerk of Crook County. Date of discovery: July 26, 1944. Date of location: July 26, 1944. Date of this amended certificate: April 16, 1949.' Signed by the same parties as the original notice.

The statutes governing in this case are, first, Section 57-921, Wyo.Comp.St.1945 reading as follows: 'Hereafter the discoverer of any placer claim shall, within ninety (90) days after the date of discovery, cause such claim to be recorded in the office of the county clerk and ex officio register of deeds of the county within which such claim may exist, by filing therein a location certificate, which shall contain the following: 1. The name of the claim, designating it as a placer claim; 2. The name or names of the locator or locators thereof; 3. The date of location; 4. The number of feet or acres thus claimed; 5. A description of the claim by such designation of natural or fixed objects as shall identify the claim beyond question. Before filing such location certificate, the discoverer shall locate his claim: First, by securely fixing upon such claim a notice in plain painted, printed or written letters, containing the name of the claim, the name of the locator or locators, the date of the discovery, and the number of feet or acres claimed; second, by designating the surface boundaries by substantial posts or stone monuments at each corner of the claim.' And second, Section 57-906 of the same statutes relating to amended or additional location reads as...