Mandel v. Great Lakes Oil & Chemical Co.

• Decision Date: 01 May 1957
• Citation: 310 P.2d 498,150 Cal.App.2d 621
• Court: California Court of Appeals Court of Appeals
• Parties: Irwin H. MANDEL, Plaintiff and Appellant, v. GREAT LAKES OIL & CHEMICAL COMPANY, a corporation, et al., Defendants and Respondents. Civ. 5601.

Page 498

310 P.2d 498

150 Cal.App.2d 621

Irwin H. MANDEL, Plaintiff and Appellant, v. GREAT LAKES OIL & CHEMICAL COMPANY, a corporation, et al., Defendants and Respondents.

Civ. 5601.

District Court of Appeal, Fourth District, California.

May 1, 1957.

Rehearing Denied May 20, 1957.

Hearing Denied June 26, 1957.

George L. Hecker and Nathan Schoichet, Beverly Hills, for appellant.

Charles L. Gilmore, Sacramento, for respondents.

GRIFFIN, Justice.

Plaintiff and appellant Irwin H. Mandel brought this action against defendants and respondents Great Lakes Oil & Chemical company, a corporation (hereinafter referred to as Great Lakes) et al., to quiet title to a certain mining claim known as triumph No. 1, consisting of uranium and other oil-bearing minerals. This claim was minly superimposed over No. 1 and No. 5 of ten such claims designated as Kergon Nos. 1 to 10, inclusive, previously located by defendants Jack Kernes and W. T. Waggoner in 1954 on Government lands in Kern County, at a time when said lands had been, for power site purposes, 'reserved from entry, location, or other disposal under the laws of the United States until otherwise directed'. Federal Power Act of June 10, 1920, Sec. 24, 41 Stat. 1075, 16 U.S.C.A. § 818. This land was restored for entry on April 28, 1955, effective June 3, 1955, at 10 a. m. The fact that it had been withdrawn was not discovered until the locators had otherwise fully complied with the law in reference to location, discovery work, building monuments, setting up corner posts, recording notices of such claims, had entered upon the claims, particularly No. 1 and No. 5, and had tunneled, drilled holes into and alongside a uranium-bearing vein extending partially through these two claims, and over which plaintiff's claim was subsequently placed on June 3, 1955.

On October 14, 1954, there was assigned to defendant Great Lakes the leasehold interest of Kerns and Waggoner in said property having an alleged value of $1,000,000. Great Lakes entered upon the claims, and fenced portions of them. Uranium ore was mined and deposited in a dump which was about 12 to 25 feet from the main highway passing by said mining property. There were other improvements installed and erected, which were valued at $80,000 at the time of trial. Practically all of these improvements were plainly visible to persons viewing the property from the road or entering upon the premises.

Upon discovery of the fact that this land was not open to location at the time, and since the government needed and was contracting for the output of all uranium, Great Lakes was instrumental in having the land restored so defendant's rights and interests could be protected. Accordingly, an order was obtained under the Federal Power Act for restoration of said lands for disposition under the Public Laws, as of June 3, 1955, at 10 a. m. Defendants then made prearranged, definite plans to locate or relocate these same ten claims on the date and hour fixed. Kerns and Wagoner, in order to remove any technical objections that might arise, had prepared by defendant Great Lakes, in its office in Los Angeles, in advance of June 3, a separate notice of location of each claim, 1 to 10, inclusive, describing them in particular, and they were forwarded to Kerns and Waggoner, who were at the claims. Shortly before 10 a. m. these notices were signed by two witnesses and then by Kerns and Waggoner. Defendants had obtained two watches, accurately set, and had arranged for a blast of dynamite to discharge exactly at 10 a. m. so these notices could be placed on the respective locations on the exact minute. The same discovery monuments previously set up as the points of discovery were used. Respondent Kerns was in the County Recorder's office in Bakersfield, about 30 minutes driving time from said claims, at the hour of 10 a. m. of said day and recorded copies of the notices posted. No trespassing signs were erected.

Plaintiff learned that this land was being restored on June 3, 1955, at 10 a. m. and apparently learned of defendants' predicament. He, with several others, started out a day or two before with a Nucleometer (a radiation detection instrument) to locate uranium ore bearing land. He claims he detected high readings in this area and made a griding of them; that on June 2, he had taken some rock out of the same area which had fluoresced and which he recognized as autunite; that some months before February, 1955, he had been on the same land and had picked up some mineral bearing ore on which he had a radiometric assay made and he claimed that he had found a type of uranium-bearing ore in place; that he was able to read a Nucleometer and such instruments and had staked out previous uranium claims; that he had in mind the fact that the area immediately surrounding his claim here involved had been developed for uranium mining and that uranium had been found and was being mined in the area; that he returned on June 3rd, five or six minutes before 10 o'clock, walked upon the property, took further readings, compared them, and determined the point of discovery. This point was about 40 or 50 feet from the deposit of uranium ore placed there by the mining operations. He claims that at 10 a. m. he dug a post hole, signed a notice of location, had it witnessed by two witnesses, attached a can to a 4 X 4 post placed in the hole, and placed a notice in the can 'a few minutes' thereafter.

It further appears that plaintiff made some error in the description of the property claimed which was later discovered. On June 15, he filed and recorded an amended location notice and within 60 days after June 3rd, by stipulation of respective counsel and order of the court, plaintiff went upon the ground, marked the boundaries of his alleged claim, dug his discovery pit, and filed a statement of the marking of the boundaries and the performance of discovery covery work in the County Recorder's office on September 1, 1955. Each accused the other of claim jumping. It also developed that defendants found other notices posted by others the day before, but they were dated June 3, 1955, at 10 a. m., and hidden in cans in various places on the property. They were removed by defendants on June 2nd. Plaintiff left the property, drove to the County Recorder's office and recorded a copy of his notice of location. Thereafter defendants displaced plaintiff's 4 X 4 post and threw away his notice.

Apparently defendant Waggoner, the corporation agents and may deputy sheriffs and officers were present witnessing these proceedings. It rather indicates that plaintiff, or other persons, alerted the television and moving picture operators in this area of the contemplated action. They were all present and pictures were taken. The officers were successful in maintaining peace. Defendants' attorneys advised defendants not to interfere with plaintiff's activities up until 10 a. m., and after defendants had posted their notices, they could consider plaintiff a trespasser. Much publicity followed this occurrence with the headline: 'Claims Staked--Courts Next.' Such is the result.

Plaintiff's main contentions on this appeal are (1) That the location and occupancy of defendants, prior to the effective date of the restoration order, were ineffective to give defendants any superior or possessory rights, citing such authority as Minner v. Sadler, 59 Cal.App.2d 590, 139 P.2d 356; Hendrickson v. California Talc Co., 55 Cal.App.2d 467, 130 P.2d 806; Kendall v. San Juan Silver Mining Co., 144 U.S. 658, 12 S.Ct. 779, 36 L.Ed. 583; 16 U.S.C.A. § 818; and Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735. (2) That plaintiff made a sufficient discovery preceding the location of his claim, sufficient to meet the requirements of the law, and that defendants failed in this respect. He argues that defendants could not base their claim on a relocation or adopting of prior discovery, citing Public Resources Code Sec. 2301; Cascaden v. Bortolis, 9 Cir., 162 F. 267; and Kramer v. Gladding, McBean & Co., 30 Cal.App.2d 98, 85 P.2d 552. (3) That as between conflicting claims, priority of location, not posting, is the determining factor, citing Creede v. Cripple Creek Mining & Milling Co., 196 U.S. 337, 25 S.Ct. 266, 49 L.Ed. 501; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; Union Oil Co. of California v. Smith, 249 U.S. 337, 39 S.Ct. 308, 63 L.Ed. 635; and Duffield v. San Francisco Chemical Co., 9 Cir., 205 F. 480. (4) That defendants are in court with unclean hands and lacking in good faith. (5) That the trial court erred in refusing to admit in evidence two exhibits offered (Nos. 29 and 30). And (6) That the evidence is not sufficient to support the findings and that those made were predicated upon unconflicting evidence and are against the law.

It is defendants' position: 1. That when land of the United States is in the possession of one who is mining it, a third party may not intrude to locate a mining claim upon it, citing such authority as Cosmos Exploration Co. v. Gray Eagle Oil Co., 9 Cir., 112 F. 4, 13, affirmed 190 U.S. 301, 23 S.Ct. 692, 47 L.Ed. 1064; Hendrickson v. California Talc Co., 55 Cal.App.2d 467, 130 P.2d 806; and Capron v. Van Horn, 201 Cal. 486, 497, 258 P. 77. 2. That to establish the validity of a lode mining claim, it is necessary that there be proven a discovery by the locator of a vein or lode of rock in place bearing valuable minerals, citing such authority as Gwillim v. Donnellan, 115 U.S. 45, 47, 5 S.Ct. 1110, 29 L.Ed. 348; Tuolumne Consolidated Mining Co. v. Maier, 134 Cal. 583, 585, 66 P. 863; Garibaldi v. Grillo, 17 Cal.App. 540, 120 P. 425; and 30 U.S.C.A. § 23. 3. That plaintiff's attempted location was invalid and defendants' location was valid and prior in point of time to that of plaintiff. And 4. That the land was not vacant public land and plaintiff, under the circumstances, was lacking in good faith in coming upon the property and attempting to locate his...