McNulty v. Kelly

• Decision Date: 16 November 1959
• Docket Number: No. 18447,18447
• Citation: 346 P.2d 585,141 Colo. 23
• Parties: James W. McNULTY, Thelma McNulty, Frank Delaney and Ethel Delaney, Plaintiffs in Error, v. Lincoln G. KELLY, Trustee, Defendant in Error. , Supreme Court of Colorado, In Department
• Court: Colorado Supreme Court

Page 585

346 P.2d 585

141 Colo. 23

James W. McNULTY, Thelma McNulty, Frank Delaney and Ethel Delaney, Plaintiffs in Error, v. Lincoln G. KELLY, Trustee, Defendant in Error.

No. 18447.

,

Supreme Court of Colorado, In Department.

Nov. 16, 1959.

Frank Delaney, pro se, Glenwood Springs, Adams, Heckman, Traylor & Ela, Grand Junction, for plaintiffs in error.

Robert L. Cranmer, H. Byron Mock, Salt Lake City, Utah, Thomas K. Younge, Grand Junction, for defendant in error.

SUTTON, Justice.

The parties will be referred to as they appeared in the trial court where plaintiffs in error were plaintiffs and defendant in error was defendant.

The cause is before this court on writ of error to review a judgment of the trial court which confirmed title in defendant to certain placer mining claims.

The record discloses that defendant as trustee represents the owners of three claims located November 7, 1931, and known as the Bentonite No. 1, the Bentonite No. 2 and the Bentonite No. 3. The location certificates of which were duly filed in Mesa County, Colorado, where the placers are situated.

The location certificate for the Bentonite No. 1 describes the property therein as follows: 'Containing 150 acres in the County of Mesa, State of Colorado, described by legal subdivisions of public land survey as follows: The E 1/4 of the W 1/2 of Section 18; W 1/4 of the SE 1/4 of Section 18; the E 1/4 of the W 1/2 of Section 7, Twp. 12 S., R. 100 W., 6th P.M. The E-3/4 of the S 1/2 of the SE 1/4 of the SE 1/4 of Section 32, Twp. 1, S., R. 1 W., Ute Meridian.'

The other two location certificates contain similar language except as to the number of acres and the subdivisions described.

On March 4, 1955, defendant, preparatory to patenting these claims, caused to be located and thereafter recorded six amended location certificates to correct any errors which might appear in the original filings.

On April 21, 1947, the plaintiffs located three placer claims known as Ute Numbers 1, 2 and 3, and filed for record location certificates thereof. These locations resulted in a conflict with, and overlap of, defendant's claims and this lawsuit followed.

There is no dispute as to the discovery of minerals, peaceable entry, citizenship, or the doing of assessment work by either party. The plaintiffs' claims are described by reference to the quarter section corner between Sections 18 and 19 in Township 12, thence by courses and distances; except Number 3 which is also described as embracing the NW 1/4 NE 1/4 of Section 19; and the W 1/2 SE 1/4 of Section 18; Twp. 12 S., R. 100 W., 6th P.M.

There was an agreed statement of facts below. After trial to the court comprehensive Findings of Fact and Conclusions of Law were made and judgment entered in defendant's favor.

Plaintiffs assert that the trial court erred because:

1. The original Bentonite Locations were invalid because located as if on publicly surveyed land.

2. That the original locations of said claims were not properly marked and were therefore void.

A review of the record and authorities impels us to the conclusion that the learned trial court made a proper disposition of the matters before it and that plaintiffs' assertions are without merit.

As to plaintiffs' ground of error concerning public surveys we point out that the location of placer claims is governed first by federal law (30 U.S.C.A. Sections 28 and 35); second by the Colorado Statute (C.R.S. '53, 92-22-12) if not in conflict with the federal law, and third by court decisions interpreting the statutes.

Part of the federal statute (Sec. 28, supra) provides that the record of a claim shall, among other things, contain 'such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.' Official United States surveys have been held to be such natural monuments. See Clark v. Pueblo Quarries, Inc., 1939, 103 Colo. 402, 86 P.2d 602. We believe it is logical to also hold that a private survey on unsurveyed lands, which is tied to a nearby public survey, is a sufficient reference to a permanent monument to comply with this provision.

The Colorado statute, supra, requires, among other things, the same type of reference, and that before filing his location certificate, the discoverer of a placer claim shall post on each claim a sign or notice with certain data thereon and shall mark 'the surface boundaries with substantial posts, sunk into the ground, one at each angle of the claim.'

The federal statute (Sec. 35) further provides that where the land has been previously surveyed 'the entry in its exterior limits shall conform to the legal subdivisions of public land', and that 'where placer claims are upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and all placermining claims located after the 10th day of May 1872, shall conform as near as practicable with the United States system of public-land surveys, and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands; * * *.'

The trial court, basing its Findings of Fact and Conclusions of Law upon the evidence before it, and upon a full discussion of the applicable laws as found in Londonderry Mining Co. v. United Gold Mines Co., 1906, 38 Colo. 480, 88 P. 455, made the following finding, to-wit:

'The purpose of these provisions is to require such a description of mining locations as will enable persons seeking to acquire title to ground in the vicinity to ascertain what ground has been previously located.

'Their intention is to impart notice to third parties. And whether or not there is a reference to such a natural object or permanent monument as to satisfy the provisions of the law must necessarily be a question of fact. If by any reasonable construction of the language employed in the description will impart notice to subsequent locators it is sufficient.

'A liberal construction should be given to the location certificate, and the same should not be declared insufficient unless it clearly fails to identify the claim.

'The reference contained in the description is sufficient if a reasonable man, by using the description and other evidence, is able to identify the location of the claim; that is, the description is sufficient if a reasonable person from reference made therein and outside evidence or investigation can determine the location involved.

'As of June 27, 1896 the SE 1/4 of Section 18 and the NE 1/4 of Section 19, and the common quarter corner between said sections, were located and, of course, could be definitely ascertained.'

Then the trial court proceeded to discuss and show how a reasonable man could read each of the three descriptions in question and proceed to locate them on the ground.

Plaintiffs cite Carroll v. United States, 9 Cir., 1907, 154 F. 425, 83 C.C.A. 245 (a prosecution for illegally enclosing public lands), which held that until public land is officially surveyed it cannot be described or conveyed by reference thereto as sections or subdivisions and that no right of private property in any land so described can be maintained in a court of justice without an antecedent public survey and location. Other cited cases which hold to the same effect are: State v. Central Pacific R. Co., 1890, 21 Nev. 94, 25 P. 442 (state could not collect taxes on such lands granted to railroads until the costs of making the surveys had been paid by the grantees); but after passage of a statute allowing taxation of 'possessory rights' it was held in Central Pacific R. Co. v. State of Nevada, 1895, 162 U.S. 512, 16 S.Ct. 885, 40 L.Ed. 1057, that such lands could be taxed before surveying costs were paid by the grantee; and the fact that the lands in question when surveyed might turn out to be mineral lands and so excluded from the operation of the grant, did not bar the tax action. In United States v. State of Wyoming, 1947, 331 U.S. 440, 67 S.Ct. 1319, 91 L.Ed. 1590, it was held that until an official survey was completed the United States Government retained title to lands granted in praesenti to the state by its enabling act. In Smith v. Whitney, 1937, 105 Mont. 523, 74 P.2d 450, it was held no township or range lines can exist on public lands until officially surveyed. And in Robinson v. Forrest, 1865, 29 Cal. 317, which was a suit to determine title to swamp land in California, it was held that only a federally approved survey will do, and until such is made the sections and their subdivisions have no existence. The court pointed out that only official federal surveys can create the actual lines of a section within a township. Bullock v. Rouse, 1889, 81 Cal. 590, 22 P. 919, followed Robinson, supra, in regard to homestead lands.

Plaintiffs further rely on 1 Lindley on Mines, 2d Edition, 793-794, wherein the author makes a statement similar to that in Carroll supra, but Lindley applies it to mineral locations stating:

'Sometimes part of a township has been surveyed so that as a matter of calculation it is not difficult to determine the precise or proximate position of adjoining unsurveyed lands and the section number which would be given them when surveyed. The proximity of the unsurveyed to the surveyed lands has led to an error quite common of treating these unsurveyed lands as if the lines of the public surveys had been extended over them, and locating placer claims thereon by the government subdivision which the locator determines would be created when the system of surveys is extended over them. But such a description would not identify anything and would not satisfy the law.'

Several authorities are cited by Lindley for this proposition including Robinson, supra, State, supra and Bullock, supra, none of which had to do with the...