Mulkern v. Hammitt, No. 18694.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | CHAMBERS, Circuit , MADDEN, of the Court of Claims, and JERTBERG, Circuit |
| 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. |
| Docket Number | No. 18694. |
| Decision Date | 03 April 1964 |
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,
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...
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United States v. Consolidated Mines & Smelting Co., Ltd., No. 25164
...this court involving mining claims, the court has held generally that administrative procedures must be exhausted. In Mulkern v. Hammitt, 326 F.2d 896 (9 Cir. 1964) the appellant in an appeal from the Acting Director's decision to the Secretary of the Interior, did not include in his appeal......
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Freeman v. U.S. Dep't of the Interior, Civil Case No. 12–1094 (BAH)
...and the right to the possession of its land from a “useless and annoying encumbrance.” Davis, 329 F.2d at 846 (quoting Mulkern v. Hammitt, 326 F.2d 896, 897 (9th Cir.1964)).7 On the other hand, if the discovered deposits are valuable under the “prudent person” test, the unpatented mining cl......
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Freeman v. U.S. Dep't of the Interior, Civil Case No. 12–1094 BAH
...and the right to the possession of its land from a “useless and annoying encumbrance.” Davis, 329 F.2d at 846 (quoting Mulkern v. Hammitt, 326 F.2d 896, 897 (9th Cir.1964) ).7 On the other hand, if the discovered deposits are valuable under the “prudent person” test, the unpatented mining c......
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Converse v. Udall, No. 21697.
...F. at 436-437), Judge Hamley in Adams v. United States, supra, (318 F.2d at 870), and Judge Madden in Mulhern v. Hammitt, 9 Cir., 1964, 326 F.2d 896, all speaking for this To us, the cases indicate that the prudent man test, complemented by the marketability test, is to be applied with vary......
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United States v. Consolidated Mines & Smelting Co., Ltd., No. 25164
...this court involving mining claims, the court has held generally that administrative procedures must be exhausted. In Mulkern v. Hammitt, 326 F.2d 896 (9 Cir. 1964) the appellant in an appeal from the Acting Director's decision to the Secretary of the Interior, did not include in his appeal......
-
Freeman v. U.S. Dep't of the Interior, Civil Case No. 12–1094 (BAH)
...and the right to the possession of its land from a “useless and annoying encumbrance.” Davis, 329 F.2d at 846 (quoting Mulkern v. Hammitt, 326 F.2d 896, 897 (9th Cir.1964)).7 On the other hand, if the discovered deposits are valuable under the “prudent person” test, the unpatented mining cl......
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Freeman v. U.S. Dep't of the Interior, Civil Case No. 12–1094 BAH
...and the right to the possession of its land from a “useless and annoying encumbrance.” Davis, 329 F.2d at 846 (quoting Mulkern v. Hammitt, 326 F.2d 896, 897 (9th Cir.1964) ).7 On the other hand, if the discovered deposits are valuable under the “prudent person” test, the unpatented mining c......
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Multiple Use, Inc. v. Morton, Civ. No. 71-211-PCT-WCF.
...application for patent, `the claim is valuable for minerals,' worked-out claims not qualifying" (emphasis added). In Mulkern v. Hammitt, 326 F.2d 896, 897 (9th Cir. 1964), the court expounded on the rationale for this view, pointing out that public lands of the United States should not be p......