Mulkern v. Hammitt, 18694.

• Decision Date: 03 April 1964
• Docket Number: No. 18694.,18694.
• Citation: 326 F.2d 896
• Parties: Juanita B. MULKERN, Individually and as the widow and successor in interest of G. C. (Tom) Mulkern, Appellant, v. Harold C. HAMMITT, etc., et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

326 F.2d 896 (1964)

Juanita B. MULKERN, Individually and as the widow and successor in interest of G. C. (Tom) Mulkern, Appellant, v. Harold C. HAMMITT, etc., et al., Appellee.

No. 18694.

United States Court of Appeals Ninth Circuit.

January 22, 1964.

Rehearing Denied April 3, 1964.

McCarty & Wheatley, Charles F. Wheatley, Jr., and Robert L. McCarty, Washington, D. C., and A. Loring Primeaux, Las Vegas, Nev., for appellant.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, and Edmund B. Clark, Attorneys, Department of Justice, Washington, D. C., John W. Bonner, U. S. Atty., and Melvin D. Close, Jr., Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and JERTBERG, Circuit Judge.

MADDEN, Judge.

This suit was filed by G. C. Mulkern, to whose interest the appellant Juanita Mulkern has succeeded, to enjoin the appellee, Hammitt, who is the Manager of the Nevada Land Office, Bureau of Land Management of the United States Department of the Interior, from cancelling the appellant's placer mining claims for gypsum and sand on public lands of the United States in Nevada. The United States District Court denied the injunction, and this appeal was brought.

The claims which are the subject of this suit were located by the appellant's predecessor in title on December 23, 1922, at which time the land here in question was open for such a location. The claims were not exploited by any commercial mining of the gypsum or sand, by G. C. Mulkern's predecessor, from 1922 to 1941 when G. C. Mulkern became the owner of the claims, nor did G. C. Mulkern thereafter exploit the claims. In 1944 the United States filed proceedings the purpose of which was to nullify the claims. This proceeding was, for reasons not here relevant, delayed, and the hearing which resulted in the departmental decision here in question was not held until 1957. The question at issue in the hearing was whether a valid discovery had been made between 1922 and 1926 or during 1928 and 1929. The significance of those years is that the United States, by a series of withdrawals after the year 1926 had incorporated the land in the area into the Boulder Canyon National Wildlife Reserve and thus removed it from future location of mineral claims upon it.

The "location" of a mineral claim upon the public lands of the United States is, in effect, a unilateral act by the locator. It indicates that, in his opinion, there are minerals upon the land which are susceptible of profitable exploitation. That opinion may, of course, be, upon examination by less optimistic persons, regarded as ill-founded. If it is, the Government must have the right to clear the title and the right to the possession of its land from a useless and annoying incumbrance. The proceeding here under review was instituted by the Government because, it contended, the land in question did not contain minerals susceptible to profitable exploitation.

The parties are in substantial agreement that the proper test to be applied in determining whether a location of a mining claim is valid is the test stated by the Department of the Interior in 1894, in the case of Castle v. Womble, 19 Land...