Norris v. United Mineral Products Company, 2306

• Decision Date: 15 May 1945
• Docket Number: 2306
• Parties: R. H. NORRIS, I. B. GRIFFITH, CARL NORRIS, E. J. WELCH, MRS. E. J. WELCH, R. H. NORRIS, Administrator of the Estate of MRS. R. H. NORRIS, Deceased, A. L. DOUGLAS, and MRS. A. L. DOUGLAS, Plaintiffs and Appellants, v. UNITED MINERAL PRODUCTS COMPANY, a Corporation, PAUL R. PETERSON, BERT LEBRON, also known as RODERICK LEBRON, HARPER POLING, G. H. NELSON, also known as GUS NELSON, W. L. SCOTT, HENRY LANDMER KAMP, also known as HENRY LAUD WEHRKAMP and HENRY LANDWER KAMP, L. C. WRIGHT, RALPH WALLEN, A. A. PATEE, THELMA BERTHELMEH, EVA FIRESTONE, JESSIE WHITE, LEE MEAD, MARION MEAD, MRS. J. M. MEAD, all heirs of J. M. MEAD, Deceased, VICTOR I. JEEP, also known as VICTOR I. JELP, GEORGE BUTTS, JACK DINWIDDIE, JACK DINWIDDIE, Administrator of the Estate of MAGGIE DINWIDDIE, Deceased, and C. W. MESSERSMITH, Defendants and Respondents
• Court: Wyoming Supreme Court

158 P.2d 679

61 Wyo. 386

R. H. NORRIS, I. B. GRIFFITH, CARL NORRIS, E. J. WELCH, MRS. E. J. WELCH, R. H. NORRIS, Administrator of the Estate of MRS. R. H. NORRIS, Deceased, A. L. DOUGLAS, and MRS. A. L. DOUGLAS, Plaintiffs and Appellants, v. UNITED MINERAL PRODUCTS COMPANY, a Corporation, PAUL R. PETERSON, BERT LEBRON, also known as RODERICK LEBRON, HARPER POLING, G. H. NELSON, also known as GUS NELSON, W. L. SCOTT, HENRY LANDMER KAMP, also known as HENRY LAUD WEHRKAMP and HENRY LANDWER KAMP, L. C. WRIGHT, RALPH WALLEN, A. A. PATEE, THELMA BERTHELMEH, EVA FIRESTONE, JESSIE WHITE, LEE MEAD, MARION MEAD, MRS. J. M. MEAD, all heirs of J. M. MEAD, Deceased, VICTOR I. JEEP, also known as VICTOR I. JELP, GEORGE BUTTS, JACK DINWIDDIE, JACK DINWIDDIE, Administrator of the Estate of MAGGIE DINWIDDIE, Deceased, and C. W. MESSERSMITH, Defendants and Respondents

No. 2306

Supreme Court of Wyoming

May 15, 1945

APPEAL from District Court, Weston County; JAMES H. BURGESS, Judge.

Action by R. H. Norris and others against the United Mineral Products Company and others to quiet title to certain placer mining claims and enjoin trespasses on plaintiff's lands. From a judgment for defendants in part, plaintiffs appeal.

Affirmed.

For the plaintiffs and appellants the cause was submitted on the brief of Raymond & Guthrie, of Newcastle, Wyoming, and R. G Diefenderfer, of Sheridan, Wyoming, and oral argument by Mr E. C. Raymond and Mr. Diefenderfer.

POINTS OF COUNSEL FOR APPELLANTS

The defendants had no right to make locations of their respective claims after this action was commenced.

51 C J. 196; Floyd v. Sellers, (Colo.) 44 P. 373.

Section 89-3901, W. R. S. 1931, clearly contemplates that the issues shall be only those existing at the time the Petition is filed.

Discoveries mean to obtain for the first time sight or knowledge of, as of a thing existing already, but not perceived or known. One discovers what existed before, but has remained unknown. Webster's New International Dictionary.

There are two requirements of the law in contested mining cases viz: the good faith of the locator and the degree of proof required to prove a forfeiture by a valid locator. A locator of mining land is required to do a certain amount of work as an evidence of good faith. Where work has been done and done in good faith for the purpose of holding a claim, the location will not ordinarily be declared invalid and a relocator granted the property. Forfeitures are so odious in law that the proof of forfeiture must be not only clear and convincing but such as to leave no doubt but that the original locator did not act in good faith in doing the work.

Chambers, et al. v. Harrington, et al., 28 L.Ed. 452; Wailes v. Davis, 158 F. 670; McCullough v. Murphy, 125 F. 149; Sherlock v. Leighton, 9 Wyo. 297.

Forfeitures are so odious to the law that the rule is quite uniform that every reasonable doubt will be resolved in favor of the validity of the mining claim as against the assertion of a forfeiture. Thornton v. Kaufman (Mont.) 106 P. 361.

Emerson v. Whittier (Cal.) 65 P. 1038; Mann v. Budlong (Cal.) 62 P. 120; McKay v. McDougal, 87 A. S. R. 413.

A forfeiture of a mining claim for failure to do annual work can be established only upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law. 205 U.S.C. A. Title 30.

For the defendants and respondents the cause was submitted on the brief and also oral arguments by E. E. Wakeman, of Newcastle, Wyoming, and Otis Reynolds, of Sundance, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

It is the general rule of equity practice that matters proper for consideration which have occurred since the filing of the bill may be stated in the answer, and the statute governing the procedure of such causes contemplates that the answer shall contain a statement of the title relied upon by the defendant from whatsoever time acquired. 51 C. J. 196; Rucker v. Jackson, 180 Ala. 109, 60 So. 139, Ann. Cas. 1915 C. 1058.

The action to quiet title is essentially an action in equity. 5 R. C. L. 637; 51 C. J. 132. Banforth v. Ihmsen, 28 Wyo. 282; 204 P. 345.

A defendant who answers must set up every ground and circumstance on which he intends to rely as a defense, either entire or partial, including defense arising after the filing of the bill, and defenses not set up are deemed waived. 30 C. J. S. 750, Par. 331.

Isador Wormser, Jr. v. Metropolitan Street Railway Company, et al., 184 N.Y. 83, 6 Am. and English Ann. Cas. page 123; Mann v. Utica, (Sup. Ct. Spec.) 44 How. Pr. (N. Y.) 334; 5 R. C. L. Page 676; 51 C. J. 283.

This Court has held in several cases that a judgment is conclusive of all matters which might have been litigated in the suit. Graham v. Culver, 3 Wyo. 639; 30 P. 937; Hennesy v. C. B. & Q. R. R., 24 Wyo. 305; 157 P. 698; Cook v. Elmore, 27 Wyo. 163; 192 P. 824.

This court recognized the right of Hunter to make a new location upon the land theretofore located by him, and held that the fact that he and Woodruff knew of the existence of minerals upon the lands, constituted a sufficient discovery. Bergquist, et al. v. West Virginia-Wyoming Cooper Company, 18 Wyo. 234, 106 P. 673.

The opinion everywhere has always been that a relocation perfected the original location if in any respect defective, or, if void, the incident which rendered it void being at the time of relocation gone, it operated as an original location. The doctrine that a relocation could not cure a location originally void is absolutely novel and contrary to all the cases which have approached the point. Morrison's Mining Rights, 16 Ed. 1936, 633. Lehman v. Sutter, et al., 198 P. 1100; Warnock v. DeWitt, (Utah) 40 P. 205.

State statutes in reference to mining rights upon the public domain must therefore be construed in subordination to the laws of congress, as they are more in the nature of regulations under these laws than independent legislation. Lindley on Mines, 3rd Ed. Page 544. Butte County Water Company v. Baker, 196 U.S. 119-125.

The regulation or customs of miners cannot fix the number of days work without reference to the value of the work or improvements. Penn v. Oldhauber, (Mont.) 61 P. 469; Woody v. Barnard, (Ark.) 65 S.W. 100; Ware v. White, (Ark.) 108 S.W. 831; Wright v. Killian, (Cal.) 64 P. 98; Samuel B. Beatty, et al., 40 L. D. 486, 487.

The test of value is the reasonable value of the work or improvements, not what was paid for it or what the contract price was. 40 C. J. 828-829, Section 267-268; 18 R. C. L. 1169, Par. 79; Lindley on Mines, 3rd Ed., Sec. 623, Page 1527, et seq.; Morrison's Mining Rights, 16th Ed., 108 et seq.; Mattingly v. Lewisohn, 13 Mont. 508, 35 P. 111; Stolp v. Treasury Gold Mining Co., 38 Wash. 619, 80 P. 817; McKay v. Neussler (Alaska) 148 F. 86; Whalen Mining Co. v. Whalen (Nev.) 127 F. 611; McKirahan v. V. Gold King Mining Co., (S. D.) 165 N.W. 542; Big Three Min. etc. v. Hamilton, (Cal.) 107 P. 301; Protective Mining Co. v. Forest City Min. Co., (Wash.) 99 P. 1033; Dickens-West Mining Co. v. Crescent Min. etc. (Idaho) 141 P. 566; Anderson v. Caughey (Cal.) 84 P. 223.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

In this proceeding by direct appeal the appellants, plaintiffs below, question the propriety of a judgment of the District Court of Weston County, rendered in an action which was commenced in Crook County, and the venue thereof thereafter changed by stipulation of the parties to the County first mentioned. The action was one to quiet title to certain placer mining claims, the mineral sought to be obtained thereby being what is now commonly known as bentonite. See Chittim v. Belle Fourche Bentonite Products Company, 60 Wyo. 235, 149 P.2d 142, 145, 146, for a brief general description of this mineral. Injunctive relief was also sought in the action by the plaintiffs against the defendants, who are now the respondents here, to restrain alleged continuous trespasses on the part of the latter upon ground which plaintiffs claimed as the owners thereof.

The parties who will usually be referred to subsequently as aligned in the District Court appear to agree that the material facts to be considered on appeal are substantially these:

J. Merle Blakeman, on August 31, 1934, filed in the United States Land Office at Buffalo, Wyoming, an application for an Oil and Gas Permit for the lands in controversy in this lawsuit and also other lands all of which were then public mineral lands of the United States. The permit thus applied for was granted by the Department of the Interior, April 9, 1936, and continued in force until it was cancelled on September 9, 1939, by that department of the government.

On March 20, 1936, the defendant, Paul R. Peterson, and others associated with him, undertook to locate the "Muddy No 1" Bentonite Placer Claim, and, so far as the formal requirements of locating a placer mining claim including discovery of mineral, posting the lands and filing proper notices were concerned, these requirements appear to have been met. The lands included in this claim were: the NW1/4NW1/4 of Section 28, W1/2SW1/4 of Section 21, and NE1/4SE1/4 of Section 20, all in Township 49 North, Range 65 West of the 6th Principal Meridian, in Crook County, Wyoming. On that date also the defendant, Jack Dinwiddie with others undertook to locate the "Dinwiddie" Bentonite Placer Claim on the E1/2NE1/4 of said Section 20, Township 49 North, Range 65 West of the 6th Principal Meridian in said county and they also complied with the formal requirements of making a placer mineral location, as mentioned above, in connection with the "Muddy No. 1" claim. However, we may properly note that it should be...