Porter v. Tempa Min. & Mill. Co.

• Decision Date: 05 September 1939
• Docket Number: 3261.
• Citation: 93 P.2d 741,59 Nev. 332
• Parties: PORTER et al. v. TEMPA MIN. & MILL. CO.
• Court: Nevada Supreme Court

93 P.2d 741

59 Nev. 332

PORTER et al. v. TEMPA MIN. & MILL. CO.

No. 3261.

Supreme Court of Nevada

September 5, 1939

Appeal from Eighth District Court, Lincoln County; Wm. E. Orr Judge.

Action by the Tempa Mining & Milling Company against E. K. Porter and Henry Diefendorf for the restitution of certain unpatented mining claims. From a judgment for the plaintiff defendants appeal.

Affirmed.

Julian Thruston, of Pioche, and George E. Marshall, of Las Vegas for appellants.

Jo G. Martin, of Pioche, for respondent.

CLARK J. GUILD, District Judge.

This is an appeal from the District Court of the Eighth Judicial District of the State of Nevada, in and for Lincoln County from a judgment in favor of the plaintiff (respondent here) and against the defendants (appellants). The parties will be referred to, for convenience sake, as in the court below, as "plaintiff" and "defendants."

The action was brought for the restitution and possession of certain unpatented mining claims in Lincoln County, Nevada. The defense of the defendants was forfeiture and abandonment; failure to do the required amount of assessment work in the years 1931 and 1932; the revocation of the corporate charter of plaintiff for failure to pay its corporate dues or fees to the State of Nevada; and title and possession of the defendant Diefendorf through actually holding and working said mining claims openly and notoriously by reason of location and possession.

It appears from the record that the Tempa, Spring and Unity lode mining claims were located by Tempa Rafferty, in the Eagle Valley Mining District, Lincoln County, Nevada, in July 1921, and thereafter recorded in the office of the Recorder of Lincoln County, Nevada, on the 8th day of August, 1921; on the 17th day of May, 1922, the locator, Tempa Rafferty, deeded said claims to the Tempa Mining & Milling Company, a California corporation, and in March 1926, the Tempa Mining & Milling Company, a California corporation, deeded the said mining claims to the Tempa Mining & Milling Company, a Nevada corporation; that thereafter, on the 18th day of August, 1932, the Tempa Mining & Milling Company, a Nevada corporation, deeded said claims to J. A. Carder and F. O. Klinefelter; that on the 24th day of February, 1936, Carder and Klinefelter deeded the said claims to one H. W. Baugh; and that by a deed bearing date the 23rd day of October, 1936, H. W. Baugh deeded to the plaintiff here, Tempa Mining & Milling Company, a Nevada corporation, the said mining claims, this latter deed being placed of record on the 3rd day of November, 1936, in the office of the Recorder of Lincoln County, Nevada.

The trial court found, and there is substantial evidence for such finding, that during all of the years in which said claims were successively held by the plaintiff and by the parties holding under the deeds aforementioned annual labor and expenditures in the amount of more than one hundred dollars for each of said claims was performed and expended on said property by the plaintiff and persons in privity with the plaintiff for the benefit of said mining claims in those years in which said labor and expenditures were required by law, and that in such of those years as notices of intention to hold said claims were required to be given and filed that such notices were by the then owners duly given and filed.

"Before forfeiture of a mining claim can be declared for failure to do annual assessment work, it must be clearly established." Strattan v. Raine, 45 Nev. 10, 197 P. 694, 200 P. 533.

"Penalties and forfeitures are not favored, unless plainly expressed." State ex rel. Miller v. Harmon, 35 Nev. 189, 127 P. 221, 223, Ann. Cas. 1914C, 891.

It is the settled law of the land that located mining ground is not subject to relocation until after forfeiture or abandonment. Farrell v. Lockhart, 210 U.S. 142, 146, 28 S.Ct. 681, 52 L.Ed. 994, 16 L.R.A., N.S., 162.

The defendants claim to have entered into the right and possession of said claims on or about the 15th day of March, 1927, by location in the name of defendant Diefendorf, for failure upon the part of the plaintiff company to have performed its annual assessment work for the year 1926; and defend their action, further, on the ground that the plaintiff had no authority in law, or otherwise, to deed or convey said property to the said Carder and Klinefelter, above-mentioned, other than and only through its board of directors, acting as trustees, and not otherwise, and that said deed of conveyance, as mentioned, is, on its face, a corporate deed executed by the president and secretary of the corporation after the corporation had forfeited its charter to the State of Nevada; and further defends upon the ground that the plaintiff was wholly unable to accept the deed above-mentioned from H. W. Baugh, reconveying said property, on the 23rd day of October, 1936, because the date of the conveyance is prior to the reinstatement by the authorities of the State of Nevada of the plaintiff corporation; and, further, that for a period of more than two years prior to the commencement of the action the defendants had been in the actual and peaceful possession of said mining claims, and since the date of location had performed the necessary work to hold said mining claims, and by working the same openly and notoriously during said period of time.

The trial court further found that while the defendant Diefendorf entered upon said claims in the year 1927, and thereafter did certain work thereon, the occupancy, holding and working of said claims by the said Diefendorf did not continue openly, adversely and notoriously for a period of two years thereafter but was interrupted and broken by the coming upon the said claims by the owners thereof for the purpose of performing, and by the performance by them of the annual labor required by law; and, further, that the entry or occupancy made by the defendant Diefendorf for the years 1927, 1928, 1929, 1930, 1932, 1933, and 1934 was interrupted and broken in each of said years either by the performance of annual labor by the owners or the filing by them of the notices of intention to hold required by law.

The trial court further found that in the month of March, 1927, and for some time prior thereto, and up to and including the time of trial Mrs. Tempa Rafferty was a stockholder of the plaintiff corporation and that other than as a stockholder in the corporation she had no interest in said claims. The trial court further found from the defendant Diefendorf's testimony that he entered upon and occupied the mining claims for Mrs. Tempa Rafferty and with the purpose of protecting such interest as she might have in the property and not to initiate or to protect any interest of his own. Upon all of these findings the trial court was amply justified from substantial evidence in the record.

It has long been the practice of this court that where there is substantial evidence to justify the findings of a trial court such findings will not be disturbed. With this thought in...