Sparks v. Mount

• Decision Date: 20 July 1922
• Docket Number: 1009
• Citation: 29 Wyo. 1,207 P. 1099
• Parties: SPARKS, ET AL. v. MOUNT, ET AL
• Court: Wyoming Supreme Court

207 P. 1099

29 Wyo. 1

SPARKS, ET AL. v. MOUNT, ET AL

No. 1009

Supreme Court of Wyoming

July 20, 1922

APPEAL from District Court, Weston County, HON. E. C. RAYMOND Judge.

Action by G. F. Sparks and another against J. D. Mount and others to restrain acts of trespass upon an oil placer claim. The material facts are stated in the opinion.

Reversed and Remanded.

R. E McNalley & E. E. Wakeman for plaintiffs and appellants.

A bona fide locator of a mineral claim who has complied with the requirements of law and continued in possession thereof and in a diligent prosecution of work toward a discovery of mineral, will be protected against intrusion and trespass. (Whiting v. Straup, 95 P. 855 (Wyo.) ; Phillips v. Brill, 95 P. 859.)

The evidence of possession and diligent prosecution of work by plaintiffs is undisputed; plaintiffs protested against defendants' acts of trespass; defendants had full notice and knowledge of plaintiffs' possession; a mere delay of five days in commencing suit on behalf of plaintiffs to enjoin acts of trespass could not work a forfeiture of plaintiffs' rights; defendants made no discovery under the alleged prior location of the claim; a discovery of minerals sufficient to perfect a location must be such a discovery as would justify a person of ordinary prudence in making further expenditure of labor and means with a reasonable prospect of success, either in developing a mine or, in case of an oil claim, of securing oil in a paying quantity. (U. S. v. Ohio Oil Co., 240 F. 996.) Under the evidence the judgment of the Court below is wrong and should be reversed.

Hagens & Murrane, and Greenwood & Dunbar, for defendants and respondents.

The facts in the present case are readily distinguishable from the facts in Whiting v. Straup cited by appellants. The entry of defendants was neither forcible, fraudulent nor surreptitious. (Miller v. Chrisman, 73 P. 1084. See also Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 736; Attherton v. Fowler, 96 U.S. 513; Lindley on Mines, Sec. 216, p. 476; Ferris, et al. v. McNally, et al., 121 P. 889.) Defendants entered upon the land peaceably and without force and they engaged in the drilling of an oil well, prosecuted the same with diligence unmolested and undisturbed until a discovery of oil in commercial quantities was made upon the land. This gave defendants legal title to the lands and a right superior to plaintiff. The judgment of the trial court should be affirmed.

BLUME, Justice. KIMBALL, J. , concurs. POTTER, C. J., being ill, did not participate in the final decision.

OPINION

BLUME, Justice.

The parties will herein be referred to in the same manner as in the case below. It will not be necessary, for the purposes of this case, to set forth in detail the rights of the defendants as between themselves. There is some conflict in the evidence as to whether or not the defendants had discovered oil on December 22, 1919, but for the purposes of this case, we shall have to treat that as an established fact. With that so taken, the evidence in this case is substantially undisputed, and we must determine as to whether the judgment herein was warranted thereunder. The testimony, so far as it bears materially on the questions here involved, is in substance as herein set out. The predecessors in interest of the defendants filed an oil placer location on the SE 1/4 of Section 6, T. 46, N. R. 63, Weston County, Wyoming, on February 16th, 1918. No possession of the land was taken under this location until about December 15th, 1919, and no discovery is claimed thereunder until December 22, 1919.

On August 29th, 1919, the predecessors in interest of the plaintiffs made an oil placer mining claim on the same land, duly marked the boundaries thereof and placed of record the location notice. These locators leased the land to R. J. Armstrong Company, who in turn leased the land to plaintiffs. Plaintiffs entered and took possession of the land, for the purpose of drilling for oil in the latter part of November, 1919. No other party was then in possession. Plaintiffs, through a drilling contractor, erected a small building on the land and moved an oil drilling machine onto the premises and commenced, about that time, to drill for oil, pursuing the work diligently until December 13, 1919, when the well was "plugged" by some unknown party during the night time. The drilling contractor thereupon attempted to get the material from the well, succeeded in getting out at least most of it, and shortly thereafter, the exact date not appearing, plaintiffs commenced another well, diligently pursuing the work, till the commencement of this suit, on December 22, 1919, and, in fact, until the trial of this case on December 29, 1919. The drilling outfit was visible at all times to parties entering upon the land.

In the meantime, about December 15th, defendants, through one Briggs, entered the land, apparently in the day time, and on that and the succeeding day moved some material onto the land. On December 17th, 1919, they moved a drilling outfit onto the premises for the purpose of drilling for oil, locating the well a short distance from where plaintiffs were drilling. No one made any objections to such entry on December 15th, but on December 17th, the plaintiff Sparks, who in the meantime had temporarily been in Sheridan, and in response to a telegram that the land in question was being entered by other parties, followed, within about one hour and a half, the moving of the drilling outfit onto the land. Defendants had not then commenced drilling. What took place then will best be stated by setting out the testimony. Plaintiff Sparks testified:

"Q. And for what purpose did you go out there?

A. To see whether anybody had moved on and notify them to get off, if they had.

"Q. What did you find when you got out there?

A. We found they just pulled a rig in just ahead of us.

"Q. Do you know about how long ahead of you they had moved the rig in before you heard about it?

A. As nearly as I could find out, from inquiry, not to exceed an hour and a half.

"Q. Now, what did you do, Mr. Sparks, when you went on the ground and found a rig there?

A. I talked with a man named Briggs, and asked him if he knew what ground he was on, and he said he did. I asked him if he knew that we were drilling on it, and he said he didn't know whether we were or not, and I pointed to the rig right under the hill from him, and he said it didn't make any difference, he had a lease on it. I notified him that we were working under a lease from the Armstrong Company, and told him if he didn't get off, we would begin proceedings, and he said that is just what he wanted done.

"Q. Was Mr. Briggs apparently in charge there?

A. Said he was. He was running the outfit."

The witness Briggs testified on this matter as follows:

"Q. You recall Mr. Wakeman and Mr. Sparks coming out to see you when you moved the rig in the first day?

A. Yes, sir.

"Q. And when you got the rig there they notified you they were in possession of that land?

A. That is what they said.

"Q. And that they didn't want you to come on there?

A. That is what they said, something in regard to that."

The plaintiffs immediately placed the matter into the hands of their attorney, but owing to the difficulty of obtaining an injunction bond, this suit was not commenced till December 22, 1919. The action was instituted for the purpose of restraining the defendants from trespassing on said land. A temporary restraining order was issued. The case was tried on December 29, 1919, upon issues joined, and judgment was entered herein, dismissing plaintiffs' petition and adjudging the right of possession to defendants. From this judgment plaintiffs appeal under the so-called direct appeal statute.

No possession having been taken under the location of February 16, 1918, and no actual, real discovery having been perfected thereunder, the land in question was open to entry under the mineral land laws of the United States on August 29th, 1919. Hence the plaintiffs, finding no one in occupancy, and having reasonable cause to believe that oil would be discovered, entered and took possession of the land lawfully, pursuant to the location made on the latter date, for the purpose of making a discovery of oil. These propositions are not seriously, if at all, questioned. The ground had been duly staked, the boundaries marked under the latter location, and the location notice had been duly recorded. Under these circumstances, these acts, as we said in Phillips v. Brill, 17 Wyo. 26, 36, 95 P. 856, indicated the extent of possession taken pursuant to such location. The rule appears to be reasonable, nor is any question raised thereon. It is supported by Cosmos Exploration Company v. Gray Eagle Oil Co., 112 F. 4, 15, and cases there cited. (See also Miller v. Chrisman, 140 Cal. 440, 73 P. 1083, 74 P. 444, 98 Am. St. Rep. 63.) As a practical matter in oil placer mining claims, discovery generally follows the posting of notices and other acts of location. If possession were confined to the ground actually occupied by the drilling outfit, then by reason of the interest, nay, excitement, often created by the findings of considerable traces of oil, scrimmages and contests as to who should first occupy the soil adjacent to the drilling ground would be apt to ensue, leading to breaches of peace. Hence the plaintiffs must be held to have been in actual occupancy of the whole of the land in question. They commenced to drill and work toward discovery of oil in the latter part of November, 1919, and continued such work diligently up to the time that the defendants attempted to enter. At that time, therefore, plaintiffs were lawfully in possession of the land, and the question is,...