New Mercur Mining Co. v. South Mercur Mining Co.

• Decision Date: 11 July 1942
• Docket Number: 6392
• Citation: 128 P.2d 269,102 Utah 131
• Court: Utah Supreme Court
• Parties: NEW MERCUR MINING CO. et al. v. SOUTH MERCUR MINING CO

128 P.2d 269

102 Utah 131

NEW MERCUR MINING CO. et al. v. SOUTH MERCUR MINING CO

No. 6392

Supreme Court of Utah

July 11, 1942

Appeal from District Court, Third District, Tooele County; P. C Evans, Judge.

Action by the New Mercur Mining Company against South Mercur Mining Company to quiet title to certain lode mining locations wherein the Snyder Mines, Incorporated, joined with plaintiff in an amended complaint. From an adverse decree, defendant appeals.

Affirmed.

Senior & Senior, of Salt Lake City, for appellant.

H. Van Dam, Jr., of Salt Lake City, for respondents.

WOLFE Justice. MOFFAT, C. J., and LARSON and McDONOUGH, JJ., concur. PRATT, J., on leave of absence.

OPINION

WOLFE, Justice.

Respondent New Mercur Mining Company, brought suit to quiet title on November 2, 1939, claiming ownership, possession, and right to possession subject to the paramount title of the United States, in and to the Violet Ray Nos. 1 to 12 lode mining locations situated in Camp Floyd Mining District, Tooele County, Utah, and alleging that appellant, South Mercur Mining Company, wrongfully claimed an adverse interest. The Snyder Mines, Incorporated as lessee of the New Mercur Mining Company joined with the respondent in an amended complaint.

The appellant by its pleadings denied such ownership and alleged ownership in itself, claiming a forfeiture by respondents, and a relocation by appellant on September 1, 1939.

The ultimate issue raised by the pleadings and stipulation between the parties was whether or not the mining claims in controversy were open to relocation by reason of the New Mercur Mining Company's alleged failure to perform the necessary annual assessment work provided for under 30 U.S.C. A. § 28 (R. S. § 2324).

From a decision and decree by the lower court sitting without a jury in favor of the plaintiffs, defendant prosecutes this appeal.

The New Mercur Mining Company obtained the claims in question by conveyance in 1935. On August 28, 1939, respondent, The Snyder Mines Incorporated, entered into a lease and option to purchase the Violet Ray Nos. 1 to 12 unpatented lode mining claims from the New Mercur Mining Company in which agreement the Snyder Mines Incorporated as lessee covenanted to perform the annual assessment work upon the claims above mentioned, either upon the claims themselves or in the "electric tunnel" which was then being driven on the property adjoining the claims.

The south headings of the "electric tunnel" were located on patented property adjoining the claims in question. This patented property was held by The Snyder Mines Incorporated as lessee under a lease and option from the Consolidated Mercur Gold Mining Company, the owner of the property, to the Lewiston Peak Mining Company, dated June 11, 1934, and assigned to The Snyder Mines Incorporated on July 2, 1936.

Congress on June 30, 1939, extended the period for annual assessment work for the year ending July 1, 1939, to September 1, 1939,

"if such work or improvements are in good faith commenced on or before 12 o'clock meridian September 1, 1939, and prosecuted with reasonable diligence to completion." 53 Stat. 991, Chapter 257.

At noon on September 1, 1939, appellants located the Protection Nos. 4 and 7 to 15 lode mining claims including the area covered by the Violet Ray locations.

Appellant claims error on fourteen counts. Briefly, first, that the decision and decree rendered by the district court in favor of the respondents was against the law and not supported by the evidence; second, that the general finding was deficient in twenty-one particulars, the court having failed to make findings as to all material issues and questions of fact.

Considering the first alleged error, the appellant contends that the respondents suffered a forfeiture through its failure to do the necessary annual assessment work "upon the claim" within the contemplation of U.S. Code, Title 30, Sec. 28, 30 U.S.C. A. § 28 (R. S. § 2324), and as a result it is the owner by virtue of its relocation on September 1, 1939.

Respondent, New Mercur Mining Company, relies upon some of the work performed by its lessee, The Snyder Mines Incorporated, on and after August 28th, 1939, for the annual labor necessary to hold said claims under the provisions of the U.S. Code, Title 30, Sec. 28, 30 U.S.C. A. § 28 (R. S. § 2324).

It has long been settled that the annual assessment work may be performed off the claims, on one of a group of contiguous claims, as well as "on the claim" within the meaning of U.S. Code, Title 30, Section 28, 30 U.S.C. A. § 28. St. Louis Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875.

In the instant case, appellant's title rests upon the relocation made after respondents alleged forfeiture. The law does not favor forfeitures. Because of this reluctance on the part of the law, ordinarily the party claiming the forfeiture of a title must both plead it and establish it by clear and convincing proof. Lockhart v. Farrell, 31 Utah 155, 86 P. 1077; Strasburger v. Beecher, 20 Mont. 143, 49 P. 740; Copper Mountain Mining & Smelting Co. v. Butte & Corbin Consolidated Copper & Silver Mining Co., 39 Mont. 487, 104 P. 540, 133 Am. St. Rep. 595. However, when it appears, as in the case at bar, that the work claimed was done off the claim, then the burden is upon the one claiming that such work fulfilled the requirements of the law and that the work was done for the development of all the claims and was so intended. Klopenstine v. Hays, 20 Utah 45, 57 P. 712; Hall v. Kearny, 18 Colo. 505, 33 P. 373; Brethour v. Clack et al., 31 Ariz. 24, 250 P. 254; Lindley on Mines, 3rd Edition, Vol. 2, Sec. 630, p. 1554, Sec. 631, p. 1565; Barringer & Adams, The Law of Mines & Mining, Vol. 2, p. 332.

On trial, the work testified to as having been performed by respondents consisted of four separate and distinct projects. First, the building of a road on to the Violet Ray claims which was begun on August 31, 1939. Second, the clearing and cleaning of several old tunnel workings on the Consolidated Mercur Gold Mining Company's "Hillside claim" by the Snyder Mines Incorporated. Third, an extension of the "electric tunnel" in a southwesterly direction towards the disputed claims. Fourth, an extension of the "electric tunnel" by leasers under lease No. 259 in a southeasterly direction towards the Violet Ray claims.

The record is by no means clear as to whether respondents or appellant ordered the road built upon the Violet Ray claims starting August 31, 1939. Appellant introduced evidence of receipts given to it by the superintendent of the construction company in payment for work done. On cross-examination, the superintendent testified, "I don't know whose road it was." Respondents' witness, Mr. Wondershek, superintendent of the Snyder Mines Incorporated, testified that he had ordered the work done. The respondents have failed to prove that they built the road. They cannot rely upon such work as satisfying the requirement as to annual assessment work; nor can the work done on the "Hillside claim" be regarded as preventing a forfeiture. This work was done after the expiration of the extended assessment period. The same is true as to the work performed in the southwest drift of the "electric tunnel." This work did not begin until after September 1, 1939. The preliminary work of cleaning the "electric tunnel" approach near the southwest drift and laying the track was performed on or about September 1, 1939, but respondents disclaim any benefits which might have arisen therefrom.

The question, then, of whether the New Mercur Mining Company suffered a forfeiture by appellant's act of relocating at 12 o'clock noon September 1, 1939, turns upon the activities of respondent, Snyder Mines Incorporated, in the southeast heading of the "electric tunnel" on or before 12 o'clock noon of September 1, 1939. It is appellant's contention that respondents had not done the assessment work within the contemplation of 30 U.S.C. A. § 28. Further, that this work in the southeast heading performed by leasers from the Snyder Mines Incorporated was not shown to have been intended in good faith or at all as a resumption of assessment work for the Violet Ray claims; also, that there was no common ownership between the property of the Consolidated Mercur Gold Mines Company and respondent New Mercur Mining Company, so as to permit the application of any work performed to be applied as assessment work for the benefit of the Violet Ray locations.

"Long before patents were allowed, indeed from the earliest period in which mining for gold and silver was pursued as a business, miners were in the habit of consolidating adjoining claims, whether they consisted of one or more original locations, into one, for convenience and economy in working them." Lindley on Mines, 3rd Edition, Vol. 2, Sec. 630; St. Louis Smelting Co. v. Kemp, supra.

In the case of Chambers v. Harrington, 111 U.S. 350, 4 S.Ct. 428, 430, 28 L.Ed. 452, on appeal from a decision by this court, the court quotes from Jackson v. Roby, 109 U.S. 440, 3 S.Ct. 301, 27 L.Ed. 990, with approval, stating:

"It often happens that for the development of a mine upon which several claims have been located, expenditures are required exceeding the value of a single claim, and yet without such expenditures the claim could not be successfully worked. In such cases it has always been the practice for the owners of the different locations to combine and work them as one general claim; and expenditures which may be necessary for the development of all the claims may then be made on one of them. * * * In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required...