Inman v. Ollson

• Decision Date: 26 February 1958
• Citation: 321 P.2d 1043,213 Or. 56
• Parties: Bert INMAN, Orval Sorensen and C. L. Stuart, Appellants, v. Harold E. OLLSON, Jack Ollson, Vida Ollson, Elizabeth H. Pringle, E. W. Pringle, John Doe and Richard Roe, Respondents.
• Court: Oregon Supreme Court

Page 1043

321 P.2d 1043

213 Or. 56

Bert INMAN, Orval Sorensen and C. L. Stuart, Appellants, v. Harold E. OLLSON, Jack Ollson, Vida Ollson, Elizabeth H.

Pringle, E. W. Pringle, John Doe and Richard Roe,

Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 30, 1958.

Decided Feb. 26, 1958.

William B. Murray, Portland, for appellants. With him on the briefs was Donald R. Stark, Portland.

Robert L. Welch, Lakeview, for respondents.

Before PERRY, C. J., and LUSK, WARNER and KESTER, JJ.

WARNER, Justice.

Action by the plaintiffs appellant, Bert Inman, Orval Sorensen and C. L. Stuart, against the defendants respondent, Harold E. Ollson, Jack Ollson and others, to eject them as trespassers on four mining claim locations made by plaintiffs upon government lands open for mining entry in Lake County, Oregon. Plaintiffs appeal from an order granting an involuntary nonsuit.

Upon the conclusion of plaintiffs' case, the record discloses that plaintiffs had staked out four claims on the afternoon of July 9, 1954, and at the same time posted notices containing the information required by subsections (1)(a) to (e), inclusive, of ORS 517.010. ¹ Thereafter, on August 5 1954, and within 30 days after posting these notices, they complied with subsection (2) of ORS 517.010 by establishing the boundary marking posts. On July 14, plaintiffs made contact with one Elder, the owner of a bulldozer, with a view of having him do the discovery work required by ORS 517.020. ² When the plaintiffs returned to the premises on July 15, they found that the defendants had, in the interim, been upon the property and posted thereon notices covering the same claims that plaintiffs had located on July 9. The defendants (who, it was later learned, were Montana people) were unknown to plaintiffs and their efforts to locate them proved unavailing. Elder visited the premises with plaintiffs on July 24 to look the site over and decide where the discovery work should best be done; and it was then decided to do it in the first week in September in deference to Mr. Elder's convenience and availability.

On August 5 and August 14, plaintiffs were again on the property, but they then found no indications that the defendants had returned since July 12. Indeed, on the fourteenth of August, there was no evidence that the defendants had marked the boundaries with posts within 30 days after their attempted location as required by ORS 517.010(2), supra, and they thereupon concluded that the defendants had abandoned their trespass.

From the record we learn that plaintiffs, after August 14, were next upon the claims on September 7, waiting for Elder to come and proceed with the work required by ORS 517.020, supra, when, and for the first time, they were greeted with a warning sign giving notice that 'these claims had been properly located and that anyone trespassing on the property would be prosecuted to the full extent of the law.' The warning was signed by some of the defendants. A determined occupancy on the part of the defendants was made further evident by the presence of the discovery work done by them with a 'cat' left on the premises and fuel supply for its use. They thereupon retired to avoid, as stated by the plaintiff Sorensen, the possibility of a fight. Even then and for some time afterward they did not know who the defendants were or where they resided. The only clue they then had was that they were probably people from Montana. This, they derived from the fact that the notices employed in posting indicated that they were printed in that state. After September 7, the plaintiffs temporarily ceased operations, consulted attorneys and on October 16, 1954, filed this action in ejectment. No contention is made that they completed the discovery work required by ORS 517.020, supra, within the required 60 days or had recorded the notices dictated by ORS 517.030 ³ within that time.

Our inquiry must be limited to the specific reasons relied upon by the defendants as grounds for the allowance of their motion for nonsuit. Dayton v. Fenno, 99 Or. 137, 145, 195 P. 154; 27 C.J.S. Dismissal and Nonsuit § 67, p. 244.

The defendants' motion, made at the conclusion of plaintiffs' case, is of some length but may be fairly summarized by saying it relies primarily upon the claim that plaintiffs' evidence discloses that they did not work and file certain notices required by the mining laws within the time thereby stipulated. It urges that by reason thereof the plaintiffs had forfeited all rights to possession of the claims in question. The motion further states that after discovering defendants' trespass the plaintiffs unduly delayed action to oust them. Taken by its entirety, it rests primarily upon the proposition that the plaintiffs have failed to prove their right to the possession of the mining claims from whence they allege they were ousted by the defendants. We, therefore, test plaintiffs' testimony in terms of the motion's challenge.

It is settled law that on a motion for nonsuit or a directed verdict, all competent evidence of plaintiff is not only entitled to belief, but also to every favorable inference that can be reasonably drawn therefrom. Saylor v. Enterprise Electric Co., 110 Or. 231, 253, 222 P. 304, 223 P. 725; Keys v. Griffith, 153 Or. 190, 196, 55 P.2d 15, and cases there cited.

It is well to notice before proceeding further that it is an established rule that mining statutes are to be liberally construed, especially when it is sought to forfeit a claim. This liberality is indulged to protect prospectors who have made discoveries under them, and as a general proposition, a substantial compliance therewith is all that is required. 36 Am.Jur. 326, Mines and Minerals § 68; 58 C.J.S. Mines and Minerals § 34, p. 79; 2 Lindley on Mines (3d ed.) 899 § 381; Costigan on Mining Law (Hornbook Series) 29 § 6.

In this matter, it was unnecessary to the court's determination of its ruling on the motion for nonsuit, to reach and rest, as it did, its ruling on the question of whether or not there had been a forfeiture under the Oregon mining law. That could only arise when the record shows that there has been a relocation of the same claim by another party. 58 C.J.S. Mines and Minerals § 81(a), p. 142. It is only when such a relocation is made apparent that the statutes are invoked to determine whether or not the first locator has forfeited his right to the claim location occupied. This is made evident in Sharkey v. Candiani, 48 Or. 112, at page 123, 85 P. 219, 222, 7 L.R.A.,N.S., 791, where the court says:

'State legislation, supplemental to the acts of Congress, which prescribes the method to be pursued by a locator as a condition precedent to making a valid appropriation of the public lands of the United States, containing valuable mineral deposits, is designed as a rule of evidence only, to determine the rights of an adverse claimant of the premises, under a subsequent location thereon of a mining claim. This must, upon principle, be the object of such laws, * * *.' Citing Erhardt v. Boaro, 113 U.S. 527, 5 S.Ct. 560, 28 L.Ed. 1113, hereinafter referred to. (Emphasis ours.)

The validity of the defendants' alleged relocation would not, in ordinary course, be met, if at all, until the defendants had presented their case disclosing an apparent valid relocation on plaintiffs' ground, thereby giving to them a right of possession paramount to that of plaintiffs. Such was defendants' burden to do in proper time and then only by clear and convincing proof. Richen v. Davis, 76 Or. 311, 316, 317, 148 P. 1130; Bishop v. Baisley, 28 Or. 119, 126, 41 P. 936, 937.

After a location is made pursuant to ORS 517.010 and 517.020 supra, and as the record shows the plaintiffs have done with reference to the challenged claims, the locators under ORS 517.030, supra, have '60 days from the posting of the location notices' in which to complete their discovery work and make and record the records by that section required. As to plaintiffs' claims, this would run from July 9, 1954, to September 7, 1954. Unless abandoned, prior to that time, no valid relocation of the same ground can be made by any third parties during the intervening 60-day period. No abandonment is shown by plaintiffs' case nor is any evidence of abandonment claimed by the defendants' motion for nonsuit. On the contrary, it appears that plaintiffs, until deterred by defendants' adverse occupancy and activities, continued in good faith and with reasonable diligence to make full compliance with the mining laws. Nor is there any evidence that the defendants enjoy the status of subsequent relocators, that is, subsequent to the termination of 60 days, which would be September 7, 1954. Whether the plaintiffs had done those things essential to a valid location, as claimed, was a matter to be properly submitted to the jury as a question of fact. Young v. Papst, 148 Or. 678, 691, 37 P.2d 359.

Plaintiffs, by way of proving defendants' trespass upon their claims, introduced two notices of location which they say were posted upon their claims by defendants. These notices recite a claim in defendants as of July 12, 1954, three days after the entry or location by the plaintiffs. We have already taken note of the testimony of plaintiffs that the defendants, some time prior to September 7, 1954, and subsequent to plaintiffs' last visit on August 14, had entered on plaintiffs' claims, sunk a discovery shaft and done other work. We do not intend to prejudice defendants' case before they have their opportunity to present it in full on the question of their own claim to a valid relocation on the lands occupied by the plaintiffs, but observe that if it rests solely upon the attempted location made by the defendants as of July 12, then it must fail. The trial court's opinion on the motion does not clearly so show, but if, perchance, this evidence of trespass on the part of the defendants was given...