McMullin v. Magnuson

• Decision Date: 04 April 1938
• Docket Number: 14005.
• Parties: McMULLIN et al. v. MAGNUSON et al.
• Court: Colorado Supreme Court

78 P.2d 964

102 Colo. 230

McMULLIN et al. v. MAGNUSON et al.

No. 14005.

Supreme Court of Colorado, En Banc.

April 4, 1938

Rehearing Denied May 9, 1938.

Error to District Court, Fremont County; James L. Cooper, Judge.

Proceeding by Ralph H. Magnuson and another, lessees, against the Colorado Feldspar Company and another, lessors, and lode claimants, and against Ethelyndal McMullin and others, placer claimants, to determine ownership for the purpose of ascertaining to whom royalty payments shoudl be made. To review an adverse judgment, all fo the placer claimants but Charles B. Blessing and Ruby May Rossi bring error.

Affirmed with direction as to modification for purpose of limiting the application of the judgment.

Floyd J. Wilson and Frederick Sass, both of Denver and Roy A. Payton, of Pueblo, for plaintiffs in error.

A. T Stewart and V. G. Seavy, both of Pueblo, for defendants in error Colorado Feldspar Co. and B. O. Halsted.

KNOUS Justice.

On March 1, 1928, the 'Mica Lode' was located as a lode mining claim by the predecessors in interest of Colorado Feldspar Company, one of the defendants in error. The defendants in error Ralph H. Magnuson and Western Feldspar Milling Company went into possession of the claim on October 17, 1931, under a lease from the Colorado Feldspar Company and a then co-owner, B. O. Halsted, likewise a defendant in error, whose interest has since been acquired by the Colorado Feldspar Company, providing for the operation of the property on a royalty basis. During the period herein involved, the claim has been continually in the possession of the Colorado Feldspar Company and its lessees. In 1930, the Colorado Feldspar Company located Suzana 1 to 5, inclusive, and Feldspar 1 and 2, as lode mining claims in the same area, and has since been in possession thereof.

The 'Mica Hill Placer No. 1,' containing 160 acres covering the Mica lode and a portion of the other claims mentioned, was filed as a placer on September 16, 1933, by the plaintiffs in error. These placer claimants thereafter filed their application for patent in the United States Land Office at Pueblo; the publication of notice thereof ending November 5, 1934. On June 2, 1934, the placer locators served notice of their claim and demand for possession on the lessees of the Mica Lode, where extensive and profitable mining operations were being carried on. Upon receipt of this notice the lessees withheld further payment of royalties, and June 26, 1934, instituted the proceeding now Before us for review, joining the lode claimants and the placer locators as parties defendant, alleging the controversy as to the possession and ownership of the premises upon which plaintiffs were conducting mining operations, and praying that the court require the defendants to enter their appearance and have determined as between themselves the ownership and title to the minerals contained in the Mica Lode, to the end that plaintiffs might be judicially advised as to whom royalty payments shoudl be made. Plaintiffs further asked that both groups of claimants be restrained from interfering with plaintiffs' mining operations, and that they be permitted to hold the accruing royalties in a trust fund to be disposed of as should be determined. This fund, deposited in the registry fo the court, and under stipulation of the parties invested in United States bonds, now amounts to some $90,000.

In due course and through extensive pleadings in the form of answers, cross-complaints, and replies, original and amended, all of the defendants appeared in this proceeding. The group of defendants claiming by the placer location, who are the plaintiffs in error here and to whom we shall refer either by that title or as the placer claimants, asserted ownership of the property by virtue of their placer location, and alleged that the ground was not subject to lode location by reason of which the lode claimants had no valid right to the premises. The original defendnat, the Colorado Feldspar Company, to whom we shall hereafter refer by that name or as the lode claimant, claimed the property by virtue of its lode locations and asserted the invalidity of the placer filing. The remaining original defendant, B. O. Halsted, disclaimed any interest in the property, and the record shows that he had conveyed his interest therein to the Colorado Feldspar Company.

Thus, after the issues were framed, we find the rival groups of defendants--the lode claimants on the one hand and the placer claimants on the other--arrayed to finally litigate on the merits the validity of their respective mineral locations, the one as against the other, with the original plaintiffs disinterestedly standing by, though continuing their mining operations, awaiting a determination of this issue in order that they might be advised as to which locator the royalties, accrued and to accrue, should be paid.

The ultimate question decisive of practically all of the points raised by the assignment of error, is whether the premises involved were subject to location as lode mining claims or as a placer mining claim. The evolution of the controlling United States statutes relating to mineral land locations was well epitomized in Henderson v. Fulton, 35 Land Dec.Dept.Int. 652, where it is said:

'The first general mining statute passed by Congress was the act of July 26, 1866 (14 Stat., 251). Provision was made for locating, working and holding, and obtaining patent for, any 'vein or lode of quartz or other rock in place, bearing gold, silver, cinnebar, or copper.' By the act of July 9, 1870 (16 Stat., 217, Sec. 12) [Section 2329 U.S. R.S., 30 U.S.C. § 35, 30 U.S. C.A.§ 35], it was provided that claims usually called 'placers', including all forms of deposit, excepting veins of quartz, or other rock in place, should be subject to entry and patent under like circumstances and conditions, and upon similar proceedings, as were provided for vein or lode claims.

'By the Act of May 10, 1872, (17 Stat., 91) [Section 2320, U.S. R.S., 30 U.S.C. § 23, 30 U.S. C.A. § 23], the terms of the act of 1866 were enlarged in their scope. Lead and tin were included amongst the specifically mentioned minerals, and the words 'other valuable deposits' were added. * * *

'From this resume of the legislation on the subject, it clearly appears that Congress, in providing for the use, occupancy, and sale of the mineral lands of the United States, * * * has divided such lands into two distinct classes, namely: (1) Those which contain veins or lodes of quartz or other rock in place bearing mineral of value, of any kind or character that may be foudn in rock in place; (2) Those containing what are usually called placers, including all forms of deposit, of whatever kind or nature, other than the deposits described in the first class.'

The commercially valuable mineral found in the ground involved in this proceeding is feldspar, a nonmetallic substance. The addition to the 1866 statute, 14 Stat. 251, supra, of the term 'other valuable deposits' to the enumerated metallic minerals, makes it evident that the intention of Congress was to enlarge the scope of the mining laws and embrace therein every character of deposit, metallic or nonmetallic, found in veins of rock in place which fall within the meaning of 'minerl' in its broadest sense. Webb v. American Asphaltum Mining Co., 8 Cir., 157 F. 203, 84 C.C.A. 651; Nephi Plaster 3 Mfg. Co. v. Juab County, 33 Utah 114, 93 P. 53, 14 L.R.A.,N.S., 1043; Northern Pac. Ry. Co. v. Soderberg, 188 U.S. 526, 23 S.Ct. 365, 47 L.Ed. 575; San Francisco Chemical Co. v. Duffield, 8 Cir., 201 F. 830.

Under the terms of the statute, section 2329, as amended, supra, 30 U.S. C.A. § 35 a placer location cannot be made upon rock in place bearing valuable mineral. If the mineral substance is not found in veins of rock in place, the ground would be subject to placer location. This situation was well illustrated in the opinion in Nephi Plaster & Mfg. Co. v. Juab County, supra, wherein it was pointed out that iron ore, a metallic mineral, not specifically named in the act, in sometimes found in veins of rock in place, and also occurs in beds and superfical deposits. Where it is found in veins, lands containing it must be appropriated under the lode laws. Where it is not found in veins of rock in place, the proceedings to obtain title are governed by laws prescribed for placer locations. Roy McDonald, 40 Land Dec.Dept. Int. 7. If here, then, the feldspar occurs in veins or lodes of rock in place, of necessity the lode claimants must prevail; otherwise, the placer location is good. In reaching a conclusion on this point, no question of law is involved, excepting in so far as the determination of what constitutes a vein might be so considered, which also is a question of fact to be determined from the evidence. Esselstyn v. Gold Corporation, 59 Colo. 294, 149 P. 93.

The meaning of the words 'lode' and 'vein,' as contemplated by the statute, has often been the subject of judicial consideration. Judge Hallett was quoted in Stevens v. Williams, Fed.Cas.No.13,413, 1 McCrary, 480, at page 488, as saying: 'In general, it may be said that a lode or vein is a body of mineral or mineral body of rock, within defined boundaries in the general mass of the mountain.'

In Beals v. Cone, 27 Colo. 473, at page 486, 62 P. 948, 953, 83 Am.St.Rep. 92 generally considered a basic authority on this subject, the essentials are mentioned in the following words: 'The controlling characteristic of a vein is a continuous body of mineral-bearing rock in place, in the general mass of the surrounding formation. If it possess these requisites, and carry mineral in appreciable quantities, it is a mineral bearing vein, within the meaning...