Phillips v. Brill

• Decision Date: 25 May 1908
• Citation: 95 P. 856,17 Wyo. 26
• Parties: PHILLIPS ET AL. v. BRILL ET AL
• Court: Wyoming Supreme Court

95 P. 856

17 Wyo. 26

PHILLIPS ET AL. v. BRILL ET AL

Supreme Court of Wyoming

May 25, 1908

ERROR to the District Court, Converse County; HON. RICHARD H SCOTT, Judge.

This was an adverse mining suit brought by Philip M. Brill, Henry Levy, Joel Goldenkranz, Otto Sartorious, John Hull, Jr., A M. Bijur, Fred Winkler, and Abraham Bijur against Lawrence C., Arthur W., Edith M. B., and Jennie Phillips. The facts are stated in the opinion.

Judgment reversed and cause remanded.

W. R Stoll, for plaintiffs in error.

Plaintiffs in error having located their claim February 10, 1903, had until the end of the year 1904 within which to do their first annual assessment work. (Supp. to U. S. Rev. Stat., Vol. 1, p. 276; Barringer & Adams M. & M., 263, 268; 2 Lindley on Mines, Secs. 624-625.) Actual possession of mineral land is good against a mere intruder, and the locator in possession of a mining claim attempting to discover mineral thereon may protect his claim from the intrusion of others. If he permits another to enter thereon he will be estopped from asserting priority against a second claimant if the latter discovers mineral first, but where he does not acquiesce in the act of the second claimant and is rightfully in possession, he cannot be ousted therefrom by the mere fact that the second claimant discovered mineral first. (1 Lindley on Mines, Secs. 216-219; Barringer & Adams M. & M., 216, 318, 319; Crossman v. Pendery, 8 F. 693; Cosmos Expl. Co. v. Oil Co., 112 F. 4; Weed v. Snook, 144 Cal. 439.) Land is not vacant and unoccupied within the meaning of the mineral laws when it is covered by a location and in possession of the locator or his transferee. It is not necessary for the locator or his transferee of an oil or gas placer claim to have discovered, or to be actually in the process of drilling for, either oil or gas upon the claim before it can be said that the claim is lawfully in his possession. All that is necessary is that the locator or transferee be in possession of the claim. The law merely requires in this respect that, as between the parties to the suit at the time of the entry by the subsequent locator, the previous locator or his transferee was in possession of the property; that he was in good faith claiming possession and the right of possession, and was doing so under color of title. Discovery need not necessarily precede location. A subsequent discovery will relate back to and perfect the location, and the rights of the locators are the subject of sale and transfer before as well as after discovery. Prior locators or their transferees in actual possession and engaged in the ordinary preparations for the purpose of developing the land for the minerals supposed to be therein contained, are protected by law against any clandestine subsequent entry and location made prior to the actual discovery of mineral therein. (Weed v. Snook, supra; Cosmos Expl. Co. v. Oil Co., supra, 190 U.S. 301; Kern Oil Co. v. Clarke, 30 L. D. 550; Oil Co. v. Clarke, 30 L. D. 570; Cosmos Expl. Co. v. Oil Co., 104 F. 20; Oil Co. v. Oil Co., 98 F. 673; Oil Co. v. Miller, 97 F. 681; Miller v. Chrisman, (Cal.) 73 P. 1083; Moffat v. Blue River &c. Co., 33 Colo. 142.)

The discovery well of the plaintiffs in error located and drilled upon the boundary line between their two claims, one-half of the diameter of the well at its surface being on each claim, was sufficient upon the discovery of oil thereby to validate the location of each claim, for the reason that it amounted to a discovery within the limits of each claim. The government cannot be injured by a discovery in that manner for both claims when the condition of the law is complied with, viz.: that mineral be discovered within the limits of each claim, it being demonstrated by the discovery well that the mineral sought is within the limits of each claim. The discovery by the well in question was sufficient, therefore, because the requirement of the law was complied with. (Larkin v. Lupton, 144 U.S. 19; 1 Lindley on Mines, Sec. 337.) The statement in Lindley in Section 337 which is relied on by defendants in error that a discovery is not susceptible to subdivision for the purpose of two locations having a common end line that bisects the discovery shaft, does not seem to be sustained by the authorities cited by the author, with the exception of the case of Poplar Creek &c. Mines, 16 L. D. 1, decided by the Secretary of the Interior. We submit that it is difficult to understand the process of reasoning upon which it was concluded in that case that a fraud was perpetrated upon the government. What possible difference could it make to the government whether it received the full amount of money for the two claims from one person or two persons? Mineral was discovered, presumably, within the limits of each claim. The necessary amount of work was done, presumably, to develop each claim. How can it be claimed, then, that a fraud was perpetrated upon the government any more than if instead of one person applying for a patent, one of the original locators had done the necessary work on his claim, and the other the necessary work on his, and each had applied for a patent? In such case, the government would have been obliged to award a patent to each of the locators, and it would have received no more money than was received from the single applicant in the case mentioned, and no more land would have been taken, nor would there have been any greater demonstration of the existence of mineral. It is submitted that the decision of the Secretary above cited is illogical in its reasoning and incorrect in its conclusion.

F. H. Harvey and Burke & Clark, for defendants in error.

Prior to the trial of this case it had been claimed that the discovery on the dividing line between the two claims of plaintiffs in error inured to the benefit of the Mitcham claim, and it was applied by the court to that claim and held that it could not inure to the benefit of both claims, and having been applied to one it left the claim here in controversy without a discovery, and, therefore, invalid. A second claimant to mineral land is not prevented from making a location by the mere fact that the first claimant "is making preparations" for developing the same. So far as oil and gas locations are concerned, the location and subsequent discovery by defendants perfects their title if there are no intervening rights, and if during the time between the date of location and discovery they have been actively at work drilling to discover oil, or at least actively engaged in such work at the time an adverse location is attempted, their possessory right will be protected. The discovery well upon the boundary line between the two claims of plaintiffs in error cannot be used for the purpose of validating both locations. It amounted to but one discovery and, therefore, could apply to but one location. (2 Lindley on Mines, Sec. 337; Poplar Creek &c. Mines, 16 L. D. 1; Reynolds v. Pascoe, (Utah) 66 P. 1064; McKinstry v. Clark, 4 Mont. 370; Morrison's Mining Rights, 8th Ed., 34.)

If the contention of plaintiffs in error should be sustained it would follow that four claims could be validly located upon a single discovery made at the point of convergence of the four separate claims. The case of Larkin v. Upton, 144 U.S. 19, cited by plaintiffs in error is not within the facts of the case at bar.

POTTER, CHIEF JUSTICE. BEARD, J., and CARPENTER, District Judge, concur. HON. CHARLES E. CARPENTER, Judge of the Second Judicial District, sat in the place of SCOTT, Justice, who, as District Judge, had presided at the trial below.

OPINION

POTTER, CHIEF JUSTICE.

This is an adverse mining suit, involving the right of possession to lots 5 and 6 in Section 2, otherwise described as the South half of the Southwest quarter of said section, in Township 32 North, Range 73 West, situated in Converse County, this State. The defendants in error, having filed in the United States Land Office an adverse claim against the application of the plaintiffs in error for a patent to the premises in controversy as an oil placer mining claim, brought this suit in support of such adverse to recover possession of the premises, damages for the alleged wrongful detention of the same, and expenses incurred in supporting the adverse claim. The district court found that the defendants in error, plaintiffs below, were entitled to possession, and entered judgment awarding the same to them. The case comes here on error.

It is assigned as error that the findings, decision and judgment are not sustained by sufficient evidence and are contrary to law, and on that ground that the court erred in overruling the motion of the defendants for a new trial. To avoid confusion the parties will be referred to hereafter by their title respectively in the district court, the defendants in error as plaintiffs, and the plaintiffs in error as defendants.

The plaintiffs, eight in number, claim the premises under a location on October 29, 1903, embracing the same as a part of an oil and gas placer mining claim designated as the "La Prele No. 2." The defendants, four in number, claim under a location of the premises on February 10, 1903, as an oil placer mining claim named the "Ravensbury."

The plaintiffs allege in their petition, in addition to the other facts usually alleged in an action of this kind, that on or about November 1, 1903, the defendants wrongfully entered upon the premises here in controversy, and have ever since wrongfully withheld possession of the same from the plaintiffs.

It appears that there are recognized indications of oil throughout the particular section of country where this land is situated, and that previous to February 10, 1903, some of the defendants, for...