Plough v. Nelson

• Decision Date: 04 December 1916
• Docket Number: 2874
• Citation: 49 Utah 35,161 P. 1134
• Court: Utah Supreme Court
• Parties: PLOUGH v. NELSON ET AL

161 P. 1134

49 Utah 35

PLOUGH v. NELSON ET AL

No. 2874

Supreme Court of Utah

December 4, 1916

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by R. E. Plough against Nils Nelson and others.

Judgment for plaintiff. Defendant named appeals.

AFFIRMED.

J. W String fellow for appellant.

APPELLANTS' POINTS.

After the plaintiff had failed to do the required one hundred dollars' worth of work for each claim, during the year and for the year 1913, the only right he had was the right to resume work before the defendant located the claims, and, as expressed by Judge Sanborn, in the case of Fee v Durhan, 21 F. 468:

"The right to resume and the right to relocate vested in the respective parties the instant the 31st day of December passed. Congress granted the right to the land to the parties who first exercised their right. The plaintiffs exercised their right to relocate before the original locators exercised their right to resume, and they thereby acquired the better right to the property. Their acts of entry and relocation did not constitute a trespass, because they violated none of the rights of the original locators, but simply asserted and exercised a right Congress had expressly granted to them. These views are not without support in repeated decisions of the court. Belk v. Meagher, 104 U.S. 279; Du Prat v. James, 65 Cal. 555; Russell v. Brosseau, 65 Cal. 608; Kramer v. Settle, 1 Idaho 491; Renshaw v. Switzer (Mont.), 13 P. 127; Morgan v. Tillottson, 73 Cal. 520."

Bagley & Ashton for respondent.

RESPONDENT'S POINTS.

It is well settled that the burden of proving a forfeiture for failure to do the assessment work is on the person alleging it and it must be established by clear and convincing evidence. (Willett v. Baker, 133 F. 937; Field v. Tanner, 75 P. 916; McCulloch v. Murphy, 125 F. 147; Fredericks v. Klauser, 96 P. 679; Callahan v. James, 74 P. 835; Bishop v. Baisley, 41 P. 936, at 939; 8 Ency. of Ev. 559; Morrison's Mining Rights, 14th Ed. 131.) Every presumption is indulged in favor of the prior location. The burden of proof is on the contestant of showing the invalidity of the prior location or of showing some competent facts which give the contestant a better right than his adversary to the ground in dispute. (Lockharte v. Farrell (Utah, 1906). 86 P. 1080; Buffalo Zinc & Copper Co. v. Crump, 91 Ann. St. Rep. 87 at 98; Hammer v. Garfield Mining Co., 130 N. S. 291). Indeed, it is the object and policy of the law to encourage the prospector and miner in their efforts to discover mineral and therefore as between conflicting lode claimants the law is liberally construed in favor of the senior location. (Grand Central Min. Co. v. Mammoth Min. Co., 29 U. 490.)

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The plaintiff, as lessee, on December 29, 1913, commenced this action to quiet the title to certain lode mining claims situated in Tooele County, Utah, and to enjoin the defendants named in the title of the action from in any way interfering with his possession of said claims. The defendant Nelson alone answered the complaint, and, after denying the rights of the plaintiff, and of those under whom he claimed, also set up a counterclaim in which he claimed title to a large portion of the surface area of the claims described in plaintiff's complaint. Nelson's claim is based upon an alleged relocation of the claims, which was based on the ground that plaintiff had failed to do the assessment or representation work for the year 1913, and hence had forfeited his right to the claims, as well as the rights of those under whom he claimed.

The case, by stipulation, was transferred for trial to the district court of Salt Lake County. That court, after hearing the evidence, made findings of fact and conclusions of law in favor of the plaintiff and entered a decree quieting the title to the claims as prayed for in the complaint, and enjoined the defendants, including the appellants, from interfering with plaintiff's possession. The defendant Nelson alone appeals.

At the threshold we are met with a motion to dismiss the appeal upon the ground that the appellant has failed to make his co defendants parties to the appeal. We have frequently held that all adverse parties who are interested in having the judgment either reversed or affirmed are necessary parties to the appeal, and if not made parties the appeal will be dismissed. Griffin v. Southern P. Co., 31 Utah 296, 87 P. 1091; Allen v. Garner, 45 Utah 39, 143 Pac. 228, and cases cited in the two cases just referred to. It does not follow, however, that all who were made parties in the court below are necessary parties to an appeal. It often happens that certain individuals are originally made parties in the court below who are not necessary parties and who claim no interest in the subject-matter of the litigation, or who disclaim all interest therein at the trial. Such is the case here. It developed at the trial that the appellant is the only party interested and is alone affected in the event the judgment should be reversed or affirmed. The motion, therefore, does not come within the rule referred to, and hence must be denied.

Proceeding now to the merits of the case, we remark that, while much evidence was produced by both parties upon other questions, yet, in view that the appellant has limited his contention and argument to only one question, the evidence upon the other matters becomes wholly immaterial. The material facts affecting the question presented for decision in substance are that the claims in question were located many years before the action was commenced, and were divided into two groups known as the Lincoln and the Blackhawk groups. There were three claims in the former and two in the latter group. There was also involved a mill site. Much labor had been performed upon the claims prior to the year 1913 by both the original owners and the plaintiff as lessee. Proof of such labor was filed as required by law for the several years of 1900 up to 1912. In the year 1913, however, and while plaintiff's lease was still in force, he failed to do the assessment or representation work upon any of the claims, and did not commence to do the work on either one of the groups until the 30th or 31st day of December, 1913. Either on the 30th or 31st of December, 1913, however, the plaintiff, with an assistant, went upon the claims and commenced the assessment work for the year 1913. The evidence showed that the claims were some distance from the railroad and were somewhat inaccessible, especially during the winter season; that on the 30th day of December, 1913, the plaintiff, at a certain store some miles distant from the claims, bought provisions and the necessary supplies to do the work on the claims, which provisions and supplies were delivered by the storekeeper at the boarding house located on one of the claims in question; that the plaintiff and his assistant, either on the 30th or 31st day of December, 1913, commenced work in a tunnel previously constructed on the claims by drilling holes into the face thereof for the purpose of blasting out the rock, and by that means to extend the tunnel into the mountain with a view of developing the minerals; that they commenced work first in one of the groups and then went to the other group and commenced actual work on both groups before the end of December, 1913, and were in actual possession of the claims on that day, intended to continue on with the work, and remained in the boarding house at night; that they continued to work during the winter and spring until the required amount was performed, when plaintiff filed proof of labor for the year 1913, as had been done for the proceeding years. It also was made to appear that the appellant, and others in his behalf, had attempted to, and in several instances did, interfere with plaintiff's possession, and had threatened to continue to do so; that in view of that fact plaintiff had commenced prior actions and commenced this action, and had obtained orders restraining the parties from interfering, and that the sheriff of Tooele county had put the plaintiff into possession pursuant to the court's orders.

Under the foregoing circumstances the appellant testified that he went upon the claims on December 31, 1913, and found no one in possession, and found no indications that any work had been done on the claims for the year 1913; that in view of that fact he, with an assistant, on the morning of January 1 1914, relocated a large portion of the surface area of the claims in question as...