Rummell v. Bailey, No. 8622

• Court: Utah Supreme Court
• Writing for the Court: CROCKETT; McDONOUGH; HENRIOD
• Citation: 320 P.2d 653,7 Utah 2d 137
• Parties: d 137 G. T. RUMMELL, H. M. Hardin, Mathew P. Rowe and Roy M. Eidal, doing business as LaSalle Mining Company, a partnership, Plaintiffs and Appellants, v. K. R. BAILEY, Jr., and Jolene Bailey, husband and wife; E. J. Hall and Ruth Hall, husband and wife; Milton C. Nielson and Estella Nielson, husband and wife; F. G. McFarlane and S. R. Hullinger, Defendants and Respondents.
• Docket Number: No. 8622
• Decision Date: 23 January 1958

Page 653

320 P.2d 653 7 Utah 2d 137 G. T. RUMMELL, H. M. Hardin, Mathew P. Rowe and Roy M.
Eidal, doing business as LaSalle Mining Company, a
partnership, Plaintiffs and Appellants,
v.
K. R. BAILEY, Jr., and Jolene Bailey, husband and wife; E.
J. Hall and Ruth Hall, husband and wife; Milton C. Nielson
and Estella Nielson, husband and wife; F. G. McFarlane and
S. R. Hullinger, Defendants and Respondents. No. 8622. Supreme Court of Utah. Jan. 23, 1958.

Page 655

[7 Utah 2d 139] Clair M. Senior, Salt Lake City, Therald N. Jensen, Price, Eugene H. Mast, Grand Junction, Colo., for appellants.

Duane A. Frandsen, Price, Dean E. Conder, Salt Lake City, Donald T. Adams, Monticello, for respondents.

CROCKETT, Justice.

Plaintiffs sued to quiet title to certain mining claims in what is known as the White Canyon area east of the Colorado River in San Juan County. The defendants set up as a defense that they had made prior valid mining locations on the same properties and counterclaimed to quiet title in themselves. The trial court found the [7 Utah 2d 140] issues in favor of the defendants and entered judgment thereon, from which the plaintiffs appeal.

The evidence establishes that the defendants made their locations on the disputed properties (except one claim: Cedar Mesa No. 5, to be dealt with later) on or before April 2, 1953; whereas the plaintiffs made their locations in September of that year. The defendants being prior in time, their rights would be paramount to the claims of plaintiffs, if defendants' locations are otherwise valid.

The basis of plaintiffs' attack is that when defendants made their locations they had not complied with the requirement of the statute of the United States, ¹ nor of the State of Utah, ², with respect to lode mining claims, that there must be a '* * * discovery of the vein or lode within the limits of the claim located.'

The question we here confront is what constitutes discovery of a 'vein or lode.' The language of the statute above quoted seems plain enough, but as is the case with many general statements of law, difficulties are encountered in applying it to specific circumstances. ³

It must be appreciated that under the common generality, (which is almost but not quite universally true) that matter is divided into three categories: animal, vegetable and mineral, a very high proportion of the substances of the earth are in that sense 'mineral.' For instance, compounds of sodium, carbon, the silicons and other such commonly occurring minerals are widely distributed over the earth's crust. The discovery necessary under the mine location statutes is not satisfied by the discovery of 'mineral' in that very broad sense. If it were, there would be justification for making mine locations on virtually every part of the earth's surface. That is the very thing the statutory requirement is aimed at: i. e. to prevent the 'appropriation of presumed mineral ground for speculation purposes;' ⁴ to hold it on the chance that it may prove to have valuable minerals, but without any bona fide intent to develop the property. Accordingly, the terms are construed to refer to metals ⁵ and to other minerals ⁶ of some actual or potential commercial value and the requirement of their discovery is usually referred to in mining parlance as the discovery of 'mineral in place.'

[7 Utah 2d 141] We are in accord with the contention of appellants that the mere possibility that mineral exists would not provide a proper foundation for the location of a

Page 656

mining claim; and that this is so even though there may be geological evidence indicating the likelihood of the existence of mineral. Nor are we disposed to disagree with the authorities to the effect that there must be something more than mere traces or slight indications of ore which might give rise to speculation or conjecture that mineral in commercial quantitities may there exist. ⁷

With respect to just what indications of ore are necessary, it is to be kept in mind that in the instant case the problem is somewhat different from the usual mining situation because the mineral with which we are primarily concerned is uranium. It has the rare characteristic of being an unstable element: that is, there is a continuous change occurring in its atoms, resulting in radio activity. The 'radiation' therefrom may be detected by Geiger counters, scintillators, and other radiometric instruments sensitive to it, which, it is well known, are quite universally used and relied upon by miners prospecting for it because of this singular characteristic of uranium bearing ores. We deem it entirely legitimate to rely upon such indications as one of the means for locating uranium. They must, of course, relate to actual uranium mineralization in the claim located, and not to radio activity in the atmosphere, nor to the slight amount which may be detected practically any place (particularly in our locality during and following the government's experimental nuclear explosions in our neighboring state of Nevada). ⁸

The statute requiring discovery of the 'vein or lode' within the claim must be construed in accordance with its purpose which is to foster and encourage the discovery and development of mineral resources by providing a practical method of procedure for those who in good faith desire to search out and develop such resources in the public domain. To this end the courts have been quite liberal in sustaining discoveries in favor of the first locator of a mining property. ⁹ This is particularly so where the issue arises between him and another prospector who subsequently attempts to claim the same property. ¹⁰ We have heretofore given approval to this view ¹¹ and the doctrine is generally accepted, as reflected in the statement of the eminent authority on mining law, Lindley: 'The [7 Utah 2d 142] tendency of the courts is toward marked liberality of construction where a question arises between two miners who have located claims upon the same lode, or within the same surface boundaries, * * *.' ¹²

Notwithstanding the fact that we recognize that the statute requires some discovery of mineralization in place on the claim, as distinguished from float or imported material, it need only be such as would lead a miner to pursue such indications with a reasonable expectation of finding ore. The term 'lode' as used by miners is a variation of the verb 'lead' and such is its meaning in connection with the above statute. ¹³ We think that the correct doctrine is that there must be a discovery within the confines of the claim of some mineralization of a nature that has actual or potential value. It need not be of any particular assay or richness in quality, nor any specified amount in quantity, nor need it be sufficient that it would immediately pay mining expenses. ¹⁴ The only essential is

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that the discovery must be of such significance that a practical, experienced miner of prudence and judgment would deem it advisable to pursue the vein or 'lead' thus furnished and to expend further time, effort or money in attempting to develop the property as a mine. ¹⁵

In applying the above...