Western Standard Uranium Co. v. Thurston

Decision Date13 September 1960
Docket NumberNo. 2892,2892
Citation355 P.2d 377
PartiesWESTERN STANDARD URANIUM COMPANY, Successor in interest to the Defendants, Roy Peck, Leigh Roush, and Washakie Exploration Company, Defendants, Appellant, v. Ralph H. THURSTON, Appellee (Plaintiff below).
CourtWyoming Supreme Court

G. Joseph Cardine, Casper, for appellant.

W. J. Nicholas, Smith, Nicholas & Clark, Lander, for appellee.

Before BLUME, C. J., and GUTHRIE and HARKINS, District Judges.

District Judge GUTHRIE delivered the opinion of the court.

This is an action by Ralph Thurston, plaintiff and appellee, to quiet title to thirteen lode mining claims known as XYZ, one through thirteen inclusive, located in the Gas Hills area of Fremont County, Wyoming, against various defendants. Before the trial thereof, however, defendant, Western Standard Uranium Company, appeared as the sole defendant by virtue of having succeeded to the entire interest therein.

In addition to asking the quieting of the title thereto, both parties to this action sought injunctive relief under the petition and cross-petition. The trial court entered judgment in favor of the plaintiff, Thurston, as hereinafter mentioned, and from the judgment the defendant, Western Standard Uranium Company, has appealed to this court. The parties will hereinafter be referred to in the same manner as in the court below, or the defendant will be referred to as appellant and the plaintiff as appellee.

A pre-trial conference was had and by stipulation and agreement of the parties the following contentions of appellant were determined to be the only issues necessary for a decision herein. These contentions are as follows:

'(a) No valid discovery of mineral in rock in place was made by plaintiff or his predecessors in interest within the limits of any of said claims prior to defendant's entry thereon.

'(b) The discovery shafts or open cuts on each of said claims were inadequate in that none of them were of sufficient depth and no vein or lode of mineral in rock in place was cut thereby or shown therein.'

Other issues, including the question of plaintiff's compliance with 68 Stat. 708, 709, 30 U.S.C.A. § 523(b), were raised in this pre-trial order but no further mention is made thereof and are not raised or argued in the brief on this appeal and are therefore waived. Mosko v. Smith, 63 Syo. 239, 179 P.2d 781, and other cases cited therein.

After the pre-trial conference, the plaintiff moved for a summary judgment. The court sustained the motion insofar as the question of discovery is concerned, reserving the question as to discovery work for trial. The plaintiff, in support of the motion for summary judgment, submitted various affidavits, exhibits and depositions. The main facts of these will hereafter be set out.

Defendant, in opposition, filed a verified motion praying for denial of the application for summary judgment which is barren of evidentiary facts and consists of an attack on the evidence, its nature, and its form and further alleging that much of the evidence with regard to the factual situation herein is within the knowledge of plaintiff and that by reason thereof defendant is unable to present the facts by affidavit essential to justifying its opposition or meet the evidence relied upon by plaintiff.

On the same day defendant also filed an answer to the motion for summary judgment, also verified. This denies that the discovery work, as required by Wyoming law applicable thereto, was performed. It further denies that any discovery of minerals sufficient under the requirements of law has been made with respect to or within the confines of any of the claims herein covered and denies that sufficient showing has been made on any precise claim or that the affidavits and evidence show facts which might constitute the basis of a valid mineral discovery.

No attempt is made in either of these instruments to bring any facts into the record even though both are verified.

Defendant does not bring itself into either the spirit or direct phraseology of the rules or overlooks entirely Rule 56(e), Wyoming Rules of Civil Procedure, wherein it is stated:

'* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' (Emphasis supplied.)

The italicized portion of the rule is not a part of the Federal Rules. The clarity and simplicity of this amendment seem to require no interpretation or discussion to make clear its basic requirement. It must be remembered that some decisions under the rules are made inapplicable.

The test of the propriety of the grant of a summary judgment has been expressed as follows:

'* * * the court examines evidence on the motion, not to decide any issue of fact * * * but to discover if any real issue exists. * * *' Sprague v. Vogt, 8 Cir., 150 F.2d 795, 800.

See 3 Barron and Holtzoff, 1958, p. 122.

With this rule as a guidepost, we shall set out the facts substantially undisputed, which appear in plaintiff's showing in connection with the motion for summary judgment, leaving matters which relate in the main to the question of discovery work, such as the digging of pits, for later mention.

The facts as they appear in the affidavits, depositions and exhibits of plaintiff so far as they are pertinent or material to our inquiry as to the question of discovery and the correctness of the court's rulings on the motion for summary judgment are as follows:

The XYZ claims 1-13 were located originally and staked by plaintiff's predecessors under a lease application pursuant to Circular 7, AEC, and possession remained in those persons claiming thereunder from June 30, 1954, to and until October 9 or 10, 1957, when defendant, by its agents, servants and employees entered thereon, posted location notices and commenced work, claiming that the locations of plaintiff were void because of failure to comply with certain necessary requirements under the laws of Wyoming and the United States.

These claims are located in the Gas Hills area which is known to contain many valuable deposits of uranium ore, discoveries existing quite generally in the area. Plaintiff's predecessors in interest located these claims after taking into consideration the general geology of the area and the geologic conditions directly affecting these claims, particularly claims of known value lying from 1,500 to 3,000 feet therefrom. Thereafter they took up to fifty samples from adjoining and adjacent claims and had them chemically assayed, showing in some cases extremely valuable ore. They followed a 'trend' or channel through the claims where good chemical assays had been taken to and into the area of these claims. The uranium deposits in this area are found in the upper Wind River formation and such deposits are epigenetic in character and are generally deposited in lenticular lenses or pods commonly occurring in the silty sandstones, but commercial deposits have been mined from lenses of conglomerate and other constituents of the Wind River formation. The deposits discovered have generally appeared in so-called 'trends' which are or may be old stream beds or channels in the Wind River formation and such 'trends' or whatever they may properly be called are bounded by barren rock that contains no uranium. Between the dates of June 26, 1957, and July 2, 1957, the plaintiff caused to be drilled on all of said claims a 'drill hole' approximately four inches in diameter. These holes were from 100 to 300 feet in depth, being in no case less than 100 feet. These holes were all drilled immediately adjacent to the discovery pits. All of these drill holes were probed by the plaintiff using a radiometric device which was sensitive to and recorded the emission of rays from uranium ores. Each of said holes showed such reactions in two zones pierced by said drill holes. These two zones where the reactions were encountered are recorded on a graph and were below the water table in the upper Wind River formation. Copies of said graph readings, as recorded, were attached to an affidavit as an exhibit and appeared in the record at the time of the hearing on the motion for summary judgment. There are no minerals present in or which have been discovered in the upper Wind River formation below the water table which emit energy or rays which cause reactions on a Geiger counter or other radiometric device except uranium. Because of this fact, miners and operators in this area rely upon such radiometric readings as an indication of the presence of uranium ore. In addition thereto, their reliability is so established and accepted that radiometric devices are used in actual mining operations after discovery to control the grades mined and determine their suitability for mining. On the basis of such tests, claims are bought and sold and large sums of money are spent in their development in this area. Properly calibrated instruments, properly operated, achieve the approximate same readings as indicated by chemical assay and are widely used and accepted by every operator in the Gas Hills area. The radiometric device used by plaintiff for probing had been compared for accuracy with one owned by Dr. F. L. Bartels who had by both samples and assays established dependable radiometric controls. Plaintiff had also relied on visual examination of samples which he identified as uranium minerals in these claims. The XYZ claims are similar to the Hope, Star, Wild Goose, Tom, Sap and Z claims which are adjacent and in some cases adjoin these claims and fifty chemical assays showing large amounts of uranium in some cases have been taken and the radiometric readings discovered in the XYZ claims are...

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  • Cordova v. Gosar
    • United States
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    • May 20, 1986
    ...407 P.2d 710 (1965): both parties moving for summary judgment does not dispel factual issue if it exists; Western Standard Uranium Co. v. Thurston, Wyo., 355 P.2d 377 (1960): not expect to rely on cross-examination at trial to create factual issue; only raise issue, not decide; United State......
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    ...set forth in Johnson's Amended Complaint, and we treat the other allegations as waived or abandoned. Western Standard Uranium Company v. Thurston, Wyo., 355 P.2d 377 (1960); and Dondict v. Ryan, 79 Wyo. 231, 335 P.2d 792 (1959). We cannot consider further the matter of the personal property......
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4 books & journal articles
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