Nevada Exploration & Mining Co. v. Spriggs

• Decision Date: 10 June 1912
• Docket Number: 2275
• Citation: 41 Utah 171,124 P. 770
• Court: Utah Supreme Court
• Parties: NEVADA EXPLORATION AND MINING COMPANY v. SPRIGGS et al

124 P. 770

41 Utah 171

NEVADA EXPLORATION AND MINING COMPANY v. SPRIGGS et al

No. 2275

Supreme Court of Utah

June 10, 1912

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Nevada Exploration and Mining Company against Cyrus H Spriggs and others.

Judgment for defendants. Plaintiff appeals.

AFFIRMED.

J. M Denny for appellant.

APPELLANT'S POINTS.

After the evidence is in it is to be judged solely by the court and will be given such weight as it is entitled to, and if it runs counter to the court's conviction of truth, in the exercise of its knowledge and judgment it may disregard it entirely. (Lawson on Expert and Opinion Evidence, 182; Rogers on Expert Testimony, sec. 207; The Conqueror, 166 U.S. 31.) The court is not required to believe testimony because it is uncontradicted. (Punsky v. City of New York, 114 N.Y.S. 66.) It is not important for us to know what the claims of the parties have been; we must look to the facts as they actually existed. (Warren v. VanBrunt, 19 Wall, 653.) The court will search the record in vain for any evidence of the adoption by defendants or their predecessors in interest of a general system of development of the Oxford claims, and particularly prior to the location of plaintiffs' claims, and without such evidence the testimony of the expert witnesses as to their ideas gathered from conditions which they found upon the premises are purely conjectural and cannot be accepted as proof of any fact, regardless of the expert character of the witness. (Neesley v. Southern Pac. Co., 35 Utah 259, 99 P. 1067-70.)

Assessment work may be done on other claims or upon other ground, where as here, it is in reasonable proximity to it; and if the work, as done, would be beneficial and tend to the further development or improvement of the claims, it is sufficient. (Justice Mining Co. v. Barclay, 19 Mor. 78.) And improvements relied on must, as held in Smelting Co. v. Kemp, 104 U.S. at page 655, be made for the development of the claim to which it is sought to apply them, that is, in the language of the Supreme Court, "to facilitate the extraction of the minerals it may contain." (Gird v. Cal. Oil Co., 60 F. 531, 18 Mor. 62.)

While it is undoubtedly the law that improvements put upon one of a group of contiguous claims, to which the particular claim belongs, and for the common development of all, are to be considered in determining whether improvements for a given year have been made, the utmost that can be credited to any one claim on this account is its proportion of the common benefit. (Upton v. Santa Rita Mining Co., 89 Pac. [N. M.] 284.)

The word "improvement" as thus used, evidently means such an artificial change of the physical conditions of the earth in, upon or so reasonably near a mining claim as to evidence a design to discover mineral therein, or to facilitate its extraction, and in all cases the alteration must reasonably be permanent in character. (Fredricks v. Klauser, 96, Pac. 382. Or. 1908.)

E. W. Senior, and Snyder & Snyder for respondent.

RESPONDENT'S POINTS.

If the claims are held in common and the assessment work tends to develop the claim in question, it is sufficient. (Klopenstine v. Hays, 20 Utah 45, 57 P. 712; Wilson v. Triumph Mining Co., 19 Utah 66, 56 P. 300, 75 Am. St. Rep. 718; Fissure Mining Co. v. Old Susan Mining Co., 22 Utah 438, 63 P. 587.) Judge Hawley, in the Federal court, says that it is sufficient if it "would be beneficial and tend to the future development or improvement of the claims." (Justice Mining Co. v. Barclay, 82 F. 554, 560.) And in a later case the same learned judge announced the rule that--

"Labor and improvements within the meaning of the statute, should be deemed to be done when the labor is performed or improvements made, for the purpose of working, prospecting, or developing the mining ground embraced in the location." (McCulloch v. Murphy, 125 F. 147, 149. See also St. Louis S. & R. Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Snowy Peak Mfg. Co. v. Tamarack Mfg. Co., 107 P. 60 [Idaho].)

It is uniformly held that work which has a reasonable tendency to develop the claim will be held sufficient, and that the court will not substitute its judgment for that of the miner as to the wisdom and expediency of the method employed for developing the group. (Mann v. Budlong, 127 Cal. 577, 62 P. 120; Stone v. Bumpus, 46 Calif. 218.)

FRICK, C. J. McCARTY, J., concurs. STRAUP, J. dissenting.

OPINION

FRICK, C. J.

This is an action in support of an adverse claim which was filed in the United States Land Office at Salt Lake City. The pleadings are in the usual form in such actions. After the action had been pending for some time, the parties stipulated that the application for a patent include additional claims which had theretofore been omitted from the pleadings, and that such claims, two in number, should be considered as a part of respondents' counterclaim. This stipulation was filed on the 10th day of November, 1910. On the day following, to wit, on the 11th day of November, when the case was called for trial, the parties presented a stipulation of facts, which reads as follows:

"It is hereby stipulated and agreed that it may be and is hereby admitted as evidence and used as evidence at the trial of this case that the defendants in this action were and are each and all citizens of the United States, and that they or their predecessors in interest, all citizens of the United States, made a valid discovery of mineral-bearing rock in place upon each and every of the locations and mining claims mentioned as claimed by defendants in their answer and counterclaim, and that defendants complied fully with the law in the matter of the marking of the boundaries of said locations or mining claims and in the matter of posting notices thereon, and in the matter of recording the notices of location pertaining thereto, and that the plaintiff did likewise with reference to each and every of the locations or mining claims mentioned as claimed by plaintiff in its complaint, the purpose of this stipulation being that the foregoing statement of facts is conceded by both parties and for that reason to avoid unnecessary waste of time and the incumbering of the record in said case, and to limit the inquiry to the question of law and fact as to whether or not the ground involved was subject to location at the time of the respective locations, and whether or not defendants complied with the law relative to annual assessment work prior to the locations made by the plaintiff herein."

Pursuant to this stipulation, the evidence seems to have been confined to the question of whether the assessment work which was done by the respondents was such as tended to develop their claims, and whether or not locations on some of the conflicting claims included here were made at a time when the ground was open for location. Notwithstanding the stipulation, the findings of fact are divided into not less than fifty separate paragraphs, covering many pages of the printed record. The court found the issues in favor of respondents' contentions and entered judgment accordingly, from which this appeal is prosecuted. Six of the findings of fact are assailed by appellant as not being supported by the evidence. As we have pointed out, the parties stipulated with respect to bring into the case two additional mining claims, namely, "Oxford No. 7" and "Oxford Fraction No. O."

Appellant's counsel contend that, inasmuch as it was made to appear that these claims were located on section 36, which, by a certain act of Congress, was granted to the State of Utah, therefore the locations must be assumed to have been made upon nonmineral land, and thus be held of no effect, and that the court erred in finding to the contrary. By referring to the stipulation filed at the commencement of the trial, it will be seen that the parties stipulated the character of the land upon which all the locations in dispute in this action were made. The stipulation recites that the parties "made a valid discovery of mineral-bearing rock in place upon each and every of the locations of mining claims mentioned as claimed by defendants (respondents) in their answer and counterclaim." We think by this stipulation it was intended to, and that it did, settle the character of the land upon which all the locations involved in this action were made as being mineral in character. But, even if this were not so, the question respecting the character of the land, if it were sought to contest the character, should have been presented in the land office for determination. Actions in aid of adverse claims arising out of conflicting areas or otherwise are merely for the purpose of determining which one of two claimants is entitled to possession of the claims in dispute. The United States Land Department should, in the first instance, determine the character of the land in so far as that question is involved in an application for a patent for mining claims.

In referring to the question of who ordinarily is to determine the character of lands in congressional land grants, District Judge Hanford, in speaking for the United States Circuit Court, in Northern Pac. Ry. Co. v. Soderberg (C. C.), 86 F. 49, said:

"The decisions of the Supreme Court establish the rule that, where lands of a particular class or description have been granted by an act of Congress without making other particular provision as to the manner in which the same are to be identified, questions as to the character of the lands within the limits of the grant, which are claimed under it, are to be decided in the first instance by the officers of the Land Department, and that decisions of such questions made in the Land Department are...