Pine Grove Nev. Gold Min. Co. v. Freeman

• Decision Date: 17 July 1946
• Docket Number: 3453.
• Parties: PINE GROVE NEVADA GOLD MINING CO. v. FREEMAN et al.
• Court: Nevada Supreme Court

171 P.2d 366

63 Nev. 357

PINE GROVE NEVADA GOLD MINING CO. v. FREEMAN et al.

No. 3453.

Supreme Court of Nevada

July 17, 1946

Rehearing Denied Aug. 7, 1946.

Appeal from District Court, First Judicial District, Lyon County Clark J. Guild, Judge.

Action by the Pine Grove Nevada Gold Mining Company, a corporation against W. J. Freeman and others to quiet title to the patented and unpatented mining claims situated in Wilson mining district. From a judgment in favor of the defendants the plaintiff appeals.

Case remanded to district court and district court ordered to modify its judgment in accordance with opinion. District court's order denying plaintiff's motion for a new trial affirmed.

William S. Boyle, of Reno, for appellant.

F. H. Koehler, of Yerington, for respondents.

HORSEY, Justice.

On July 10, 1945, the appellant, Pine Grove Nevada Gold Mining Company, a corporation, commenced an action in the First Judicial District Court of the State of Nevada, in and for Lyon County, to quiet the title to the patented and unpatented mining claims situated in the Wilson Mining District, Lyon County, Nevada, enumerated and described in paragraph I of plaintiff's complaint. We will, in this opinion, for convenience, in most instances refer to the parties merely as plaintiff and defendants.

The plaintiff, Pine Grove Nevada Gold Mining Company, and its predecessors in interest, Pine Grove Gold Mining Company and Pine-Delaware Mining Company, had owned said mining claims for many years prior to the commencement of said action, had erected on the Good Luck claim a mill for the milling and treatment of ores, and had constructed buildings, equipped the property with machinery, and made many valuable improvements. The plaintiff and its predecessors in interest had also expended many thousands of dollars in development work upon the property during the years of their ownership.

On February 21, 1941, William H. Metson, acting on behalf of plaintiff's predecessor in interest, Pine-Delaware Mining Company, made a valid millsite location of a portion of the land comprising the Good Luck claim, upon which portion the said mill was situated, and named same the Harriett Millsite.

The defendants answered plaintiff's complaint, claiming title in themselves to all, or nearly all, of the mining ground embraced within plaintiff's unpatented claims named in said paragraph I of plaintiff's complaint, and to the said mill and all other improvements situated upon such unpatented locations, basing their claim upon the alleged fact that the plaintiff had failed to file, on or before July 1, 1944, for the assessment year 1943-1944 in the office of the county recorder of Lyon County, Nevada, the office where the location notices or certificates of said claims are recorded, a notice of its desire to hold said mining claims, under the certain act, H.R. 2370, 30 U.S.C.A. § 28a note, entitled: 'An Act Providing for the suspension of annual assessment work on mining claims held by location in the United States, including the Territory of Alaska', approved May 3, 1943, and had failed to perform any assessment work upon said claims during or for said assessment year commencing at 12 o'clock meridian July 1, 1943 and ending at 12 o'clock meridian July 1, 1944, and that, consequently, the said unpatented mining claims were open to relocation, and that the defendants had validly relocated said unpatented claims, as the Protection, Protection No. 1, Protection No. 2, Protection No. 3 and Protection No. 4.

Plaintiff filed its reply to defendant's answer, alleging the location of the Harriett Millsite upon a portion of the ground claimed by said relocations, denying that the ground embraced within said relocations was open to relocation when the same were made, and repeating its prayer for a decree quieting its title to all of said property as described in the complaint.

The case was tried before the district court sitting without a jury, on November 20, 1945, and was ordered submitted on briefs.

On January 2, 1946, said district court filed its opinion and decision, in writing, holding, in effect, that title be quieted in plaintiff corporation to all the patented claims described in plaintiff's complaint, to the Harriett Millsite and all improvements thereon situated, and to any improvements consisting of buildings or assay houses that may be upon the so-called Good Luck or Dump claims, together with the right of egress from, and ingress to, any buildings or improvements of the plaintiff corporation on said claims. The opinion and decision of the trial court further held: 'that the defendants are the owners of, and entitled to the possession of those claims known as the Protection, Protection No. 1, Protection No. 2, Protection No. 3 and Protection No. 4, and Little Jim, except insofar as they or any one of them or any portion of them do not (?) cover any ground contained within the boundaries of the Harriett Millsite claim or conflict with or overlap said Harriett Millsite, and also the buildings and improvements owned by plaintiff company upon the former claims owned by them known as the Good Luck and Dump claims.' (Interpolation ours.)

The trial court signed findings of fact and conclusions of law, and its judgment, on the 28th day of January, 1946, and the same were filed and the judgment duly entered on the 30th day of January, 1946. The court's findings, conclusions and judgment conform to its said opinion and decision.

The plaintiff duly moved for a new trial of said action, and, on February 2, 1946, the trial court denied said motion. It is from that court's order denying the plaintiff's motion for a new trial and from the judgment of said court upholding the validity of the said relocations, namely, the Protection, Protection No. 1, Protection No. 2, Protection No. 3, Protection No. 4 and Little Jim claims, by the defendants, and the defendants' title to the mining ground embraced therein, with the exceptions above noted, that the plaintiff has appealed.

The facts upon the basis of which the controversial legal questions involved in this case are predicated, briefly stated, are as follows: on July 30, 1943, William S. Boyle, Esq., on behalf of plaintiff corporation, caused to be filed in the office of the county recorder of Lyon County, Nevada, a Notice of Suspension of Labor and Intention to Hold plaintiff's eight unpatented mining claims, being the same claims enumerated in paragraph I of plaintiff's complaint, during the year beginning at 12 o'clock meridian July 1, 1942 and ending at 12 o'clock meridian July 1, 1943 (plaintiff's exhibit I).

The plaintiff, due to the serious illness of the said William S. Boyle, its attorney, upon whom it had relied to file such notices, and, perhaps, also due to the death, in January, 1943, of Mr. William H. Metson, who, from his office in San Francisco, had, for years, taken care of the detailed affairs of the plaintiff corporation, failed to file, on or before July 1, 1944, any Notice of Suspension of Labor and Intention to Hold said unpatented mining claims for the year from 12 o'clock meridian July 1, 1943, to 12 o'clock meridian July 1, 1944, under the provisions of H.R. 2370, approved May 3, 1943, authorizing such suspension upon the filing of a notice such as required by said act.

On September 6, 1944, a paper purporting to be a certificate of location of the Little Jim claim, dated the 8th day of August, 1944, and signed by W. J. Freeman and L. W. Osborn, was filed for record and recorded at the request of L. W. Osborn (defendant's exhibit 6).

On October 13, 1944, there was filed for record and recorded, in the office of the county recorder of said Lyon County, Nevada, by Ola Goldsworthy, the following: Notice of Location of Protection claim, dated September 18, 1944, and signed by W. J. Freeman, L. W. Osborn, J. G. Goldsworthy and V. A. Goldsworthy. (Defendant's exhibit 1.)

Notice of Location of the Protection No. 1 claim, dated September 18, 1944, and signed by W. J. Freeman, L. W. Osborn and J. G. Goldsworthy, 'Locator' (defendant's exhibit 2), Notice of Location of the Protection No. 2 claim, dated September 18, 1944, and signed by W. J. Freeman, M. Freeman, J. G. Goldsworthy, V. G. Goldsworthy and L. W. Osborn, 'Locator' (defendant's exhibit 3).

In the early part of September, 1944, and, according to the testimony, a few days prior to the above-mentioned locations on September 18, 1944, the taxable and assessed property at the said mine and mill was sold for delinquent taxes to the defendants, and at the time such relocations were made, September 18, 1944, the defendants held said property subject to plaintiff's right of redemption.

On December 14, 1944, there was filed and recorded, in the office of the county recorder of said Lyon County, Nevada, at the request of said William S. Boyle, Esq., and on behalf of the plaintiff corporation, a Notice of Suspension of Labor and Intention to Hold plaintiff's said eight unpatented mining claims (the unpatented claims enumerated in paragraph I of plaintiff's complaint), for the year beginning at 12 o'clock meridian July 1, 1944, and ending at 12 o'clock meridian July 1, 1945, under the provisions of H.R. 2370, approved May 3, 1943, suspending, during said year and for the duration of the war, the requirements of annual labor on unpatented mining claims in the United States and Alaska. (Plaintiff's exhibit J.)

On June 29, 1945, there was filed for record and recorded, in the office of the county recorder of Lyon County, Nevada, at the request of L. W. Osborn, the following:

Notice of Location of the Protection No. 3 claim, located the 28th day of June, 1945, and signed by J. G. Goldsworthy, W. T Freeman, L. W. Osborn,...