Jordin v. Vauthiers, 44880

• Decision Date: 23 February 1978
• Docket Number: No. 44880,44880
• Citation: 89 Wn.2d 725,575 P.2d 709
• Parties: Ollie JORDIN and Leila Jordin, his wife, and William Lancaster and Dorothy Lancaster, his wife, Respondents, v. John VAUTHIERS and Jane Doe Vauthiers, his wife, Appellants, and Clarence Jordin and Mable Jordin, his wife, Defendants.
• Court: Washington Supreme Court

Page 725

89 Wn.2d 725

575 P.2d 709

Ollie JORDIN and Leila Jordin, his wife, and William Lancaster and Dorothy Lancaster, his wife, Respondents, v. John VAUTHIERS and Jane Doe Vauthiers, his wife, Appellants and Clarence Jordin and Mable Jordin, his wife, Defendants.

No. 44880.

Supreme Court of Washington, En Banc.

Feb. 23, 1978.

John Vauthiers pro se.

McSherry & Ellis, Jack McSherry, Cle Elum, for respondents.

HICKS, Associate Justice.

Respondents Jordin and Lancaster, and appellant Vauthiers, were co-owners of two unpatented mining claims in the Swauk Mining District in Kittitas County. The claims, described as Nelson Hill No. 1 and Nelson Hill No. 2, were discovered in 1968 and location notice of each was recorded in the office of the Kittitas County Auditor. Following a disagreement among the co-owners, Jordin and Lancaster brought this action against Vauthiers for partition of the property. Vauthiers, appearing pro se, appeals from the trial court's judgment partitioning by sale the above mining claims. We affirm.

These mining claims are located within public lands of the United States open to mineral entry pursuant to the mining laws of the United States. 30 U.S.C. § 22, et seq. In order to hold a mining claim, following discovery and location and prior to issuance of a patent thereon, federal law requires that not less than $100 worth of labor be performed or improvements made on the claim during each year. 30 U.S.C. § 28. In the case of co-owners, the law requires contribution from those who did not participate in the assessment work to those who did, provided certain notices are given; failure to contribute may result in a loss of the noncontributor's interest in the claim. 30 U.S.C. § 28. To establish of record that assessment work has been done, an affidavit of labor reciting that fact may be recorded in the office of the county auditor where the claim is located in this case, Kittitas County.

Over the years, disputes concerning contributions for assessment work occurred among these parties. Vauthiers, on one occasion, acquiesced in a demand upon him for contribution and paid $555 to Jordin. Thereafter, Vauthiers prepared a notice of delinquent assessment contribution demanding $466.66 for discovery and location work on Nelson Hill Nos. 1 and 2, and $266.66 for assessment work on the two claims for the years 1969, 1970, 1972 and 1974. This notice was served upon Jordin and recorded in the office of the Kittitas County Auditor. Jordin promptly recorded an affidavit denying Vauthiers' claim and alleging the notice to be void.

Following unsuccessful negotiations among the co-owners, Jordin and Lancaster commenced this action against Vauthiers seeking to partition the mining claims and to enjoin him from attempting to terminate their rights in the mining claims through use of the notice previously recorded by him. Vauthiers answered the complaint by asserting that Jordin and Lancaster had no interest in the mining claims, as such interest as they may have possessed had been forfeited to him under 30 U.S.C. § 28.

In this posture the case came to trial before the court sitting without a jury. It appears from the record before us that during opening remarks to the trial court the parties agreed that affidavits of labor had been recorded in the auditor's office by Jordin and Lancaster in each year from the time of discovery to the time of trial. Consequently, the trial court preliminarily ruled that the issue of forfeiture of the interests of Jordin and Lancaster in the mining claims was foreclosed, absent a showing by Vauthiers that one or more of the affidavits were fallacious and that the assessment work had not been done. Vauthiers contended that the affidavits filed were false and the trial proceeded on the forfeiture issue.

After hearing numerous witnesses, the court ruled that there was no forfeiture and ordered the partition by sale of the claims. Vauthiers appeals solely from the determination that respondents' interests had not been forfeited.

Included in the court's findings of facts are Nos. 5 and 9 which state:

5. Reference hereafter to the mining claims involved in this action refers only to the Nelson Hill # 1 and Nelson Hill # 2 unpatented lode claims. It is acknowledged that said claims were properly discovered and located and that all...