Jose v. Houck, 11749.

• Decision Date: 24 January 1949
• Docket Number: No. 11749.,11749.
• Citation: 171 F.2d 211
• Parties: JOSE et al. v. HOUCK et al.
• Court: U.S. Court of Appeals — Ninth Circuit

171 F.2d 211 (1948)

JOSE et al. v. HOUCK et al.

No. 11749.

United States Court of Appeals Ninth Circuit.

December 22, 1948.

Rehearing Denied January 24, 1949.

Michael F. Shannon and Thomas A. Wood, both of Los Angeles, Cal., for appellants, Jose and others.

Reynolds, Painter & Cherniss, and Lewis Miller, all of Los Angeles, Cal., for appellants, Hammond and others.

Orris R. Hedges and Monta W. Shirley, both of Los Angeles, Cal., for appellees.

Before STEPHENS, HEALY and BONE, Circuit Judges.

HEALY, Circuit Judge.

This case involves conflicting claims to four contiguous sections of surveyed public lands in Imperial county, California. The sections contain deposits of montmorillonite, a mineral of a clay-like composition having value as a food supplement for poultry, cattle, and agricultural plants. They were withdrawn from entry in 1920 by an order of the Department of the Interior, and a further withdrawal was made in 1941 by executive order for military purposes. The withdrawal orders remained in effect until July 6, 1945, when they were revoked and the land reopened to entry on the application of what is called the "Houck" group of claimants, appellees here. The restoration order, however, did not by its terms become effective until 10 a. m. of the sixty-third day thereafter, namely on September 7, 1945.

There are three groups of claimants, referred to in the record as the Houck group, the Jose group, and the Hammond group. The Houck group sued to quiet their title to 16 placer claims each of which covers a quarter section of the four sections involved. The other groups of claimants were made defendants and each interposed a cross-complaint against the other and against Houck and his associates. The trial resulted in the entry of a decree in favor of the Houck group. The questions presented by the appeal are largely factual and may be disposed of without extended discussion.

The Houck and Hammond groups rely on mineral locations made on September 7, 1945, immediately upon the termination of the existing withdrawals. The main attack on the Houck locations is on the score of the insufficiency of the showing of a mineral discovery. There is evidence that one Lewis, attorney-in-fact for this group, prospected the land as early as 1942, and was on the ground numerous times thereafter. He obtained some samples and had them analyzed. According to the report of the analyst the samples contained montmorillonite clay, the mineral subsequently mentioned in Houck's request for restoration of the lands to entry. It appears that for the most part this clay, which is widely if unevenly dispersed throughout the area, is concealed by an overburden. Outcroppings, however, or exposures in ravines and on the face of cliffs disclose the presence of the deposit.

It is thought that this showing was sufficient to satisfy the statutory requirement of discovery. 30 U.S.C.A. §§ 23, 35. In respect of discovery the courts have been inclined to leniency where the controversy, as here, is between adverse mining claimants. A more rigid rule is applied where the contest is between a mineral claimant and an agricultural claimant in possession or one seeking to make an agricultural or other entry under the public land laws. Steele v. Tanana Mines R. Co., 9 Cir., 148 F. 678. Cf. also Cascaden v. Bortolis, 9 Cir., 162 F. 267; Lindley on Mines, 3d Ed., § 437.

The Houck group, not being certain whether the sixty-third day fell on the 6th or the 7th of September, posted location notices on each quarter section both on the 6th and after 10 a. m. on the 7th. On the first day their surveyors placed wooden stakes in the ground, about...