White v. Ames Min. Co.

• Decision Date: 18 February 1960
• Docket Number: No. 8760,8760
• Citation: 82 Idaho 71,349 P.2d 550
• Parties: Kenneth WHITE, Miley Evans, Reese Esgar, C. E. Knowles, Ralph Darling and Radiant Mining Company, Inc., a corporation, Plaintiffs-Respondents, v. AMES MINING COMPANY, a corporation, W. C. Ames, W. N. Ames, Clarence Gustave, Jack Holt and Al Bowen, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 550

349 P.2d 550

82 Idaho 71

Kenneth WHITE, Miley Evans, Reese Esgar, C. E. Knowles, Ralph Darling and Radiant Mining Company, Inc., a corporation, Plaintiffs-Respondents, v. AMES MINING COMPANY, a corporation, W. C. Ames, W. N. Ames, Clarence Gustave, Jack Holt and Al Bowen, Defendants-Appellants.

No. 8760.

Supreme Court of Idaho.

Feb. 18, 1960.

Marcus & Evans, Boise, Fred H. Snook, Salmon, E. H. Casterlin, Pocatello, for appellants.

Charles Herndon, Salmon, for respondents.

SMITH, Justice.

Respondents brought this action to quiet title to certain unpatented lode mining claims, including Radiant Mines claims Nos. 103 to 108 inclusive, situate on the south side of the Salmon River in Section 33, Township 24 North of Range 20 East of the Boise Meridian, in Mineral Hill Mining District in Lemhi County. Radiant Mining Company, Inc., hereinafter referred to as respondent, after commencement of the action, became the assignee of the interests of the other respondents.

Appellant W. C. Ames cross-complained to quiet title to certain unpatented lode mining claims designated Ames Nos. 1 to 9 inclusive, which conflict with respondents' asserted rights to Radiant Mines claims Nos. 103 to 108 inclusive.

The record shows that the land, in and upon which the mining claims are assertedly located, was withdrawn for power site purposes September 28, 1922, by the United States through the Federal Power Commission pursuant to authority of 41 Stat. 1075; 16 U.S.C.A. § 818, and was restored August 11, 1955, to entry for location of mining claims, subject nevertheless to retention by the United States of all power rights to such lands, by Public Law 359, 84th Congress, c. 797, 30 U.S.C.A. § 621 et seq., known as the Mining Claims Rights Restoration Act of 1955.

During 1953 respondents attempted the location of Radiant Mines claims Nos. 103 and 104, and May 4, 1955, attempted the location of Radiant Mines claims Nos. 105 to 108 inclusive. June 30, 1956, respondents went upon the property and remained there until July 14, 1956, with the exception of July 1, 1956, attempting location of the claims. August 11, 1956, respondents attempted relocation of those claims under P.L. 359, 30 U.S.C.A. § 623, and during December, 1956, filed notice of relocation in the office of the United States Land Office in Boise, the district in which the mineral land is situate.

In May, 1956, appellant W. C. Ames learned that the land was open to mineral location. He went upon the land June 24, 1956, and remained there until 7:00 a. m., of July 2, 1956. According to the location notices filed with the county recorder of Lemhi County, he assertedly discovered Ames 2, later designated as Ames 1, and Dan 5, 6 and 7, later called Ames 5, 6 and 7, on July 1, 1956; discovered Ames 2, 3 and 4 on July 2, 1956; discovered Dan 8, later called Ames 8, on September 4, 1956; and Dan 9, later called Ames 9, on August 20, 1956.

Although both parties were on the claims at the same time on occasions, the record indicates that they did not physically see each other. The record does reveal that each party gave constructive notice to the other by certain warning signs erected and tools which each left on the premises. Appellant W. C. Ames testified that at the time of location, he did not see the stakes and notices of respondent, even though the referred to claims of both parties were superimposed.

The cause was tried before the court sitting without a jury. The court found in favor of respondent, inter alia, that respondent had been in constructive possession of the claims continuously from the date of location in 1953 and 1955 respectively; that on June 30, 1956, respondent's representatives went into actual possession of the claims and remained thereon until July 14, 1956, with the exception of July 1, 1956; also, that respondent had performed the proper discovery and location work, and that appellant W. C. Ames had actual notice commencing July 1, 1956, of respondent's possession and constructive notice thereof from the records of the county recorder's office and from workings on the ground, stakes, tools and supplies which respondent's representatives left at the site.

The trial court further found that appellant Ames did not dig any discovery pit on any of the Ames's claims; that most of the stakes he erected did not comply with the law; that the original notices were defective in that appellant did not properly post them and did not describe the boundaries of the claims with sufficient clarity to give notice of what he purported to claim, and that he had attempted to 'jump' the claims of respondent.

The district court entered judgment quieting title in Radiant Mining Company, Inc., to the mining claims, from which judgment Ames Mining Company, W. C. Ames and W. N. Ames, hereinafter referred to as the appellant, perfected an appeal.

Appellant assigns as error the trial court's finding that respondent was in constructive possession continuously from the dates of its alleged locations in 1953 and 1955, of Radiant Mines claims Nos. 103 to 108 inclusive. This assignment requires determination of the issue whether respondent could be in constructive possession of those mining claims from the dates of alleged locations in 1953 and 1955, when the land constituting those claims was not subject to mineral location because of governmental withdrawal from mineral entry and reserved for power site purposes.

Section 24 of the Federal Power Act, 16 U.S.C.A. § 818, reads:

'Any lands of the United States included in any proposed project under the provisions of this chapter shall from the date of filing of application therefor be reserved from entry, location, or other disposal under the laws of the United States until otherwise directed by the [Federal Power] commission or by Congress.'

Under the provisions of the Federal Power Act, and particularly the quoted portion thereof, any attempted location of unpatented mining claims in and upon public land reserved from location is void. Minner v. Sadler, 59 Cal.App.2d, 590, 139 P.2d 356.

In State v. Tracy, 76 Ariz. 7, 257 P.2d 860, 862, in respect to attempted locations of mining claims on an Indian Reservation, the Court ruled:

'* * * A mining claim to be valid must be filed upon public land open and subject to entry at the time the location is made. * * * Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; McKenzie v. Moore, 20 Ariz. 1, 176 P. 568. Lindley on Mines, 3rd edition, §§ 183, 184, et seq., makes it clear that a valid claim to mineral land could not be initiated on an Indian Reservation as 'The lands embraced therein are no longer public lands'.'

And in respect to attempted mineral locations on school lands, the Court said:

'* * * This school section * * * became the property of the State of Arizona * * *. It is evident, and we so hold, that these claims are void and of no effect as the lands were not then subject to location as a part of the public domain of the United States.'

See also Halmadge v. Village of Riggins, 78 Idaho 328, 303 P.2d 244; Kendall v. San Juan Silver Min. Co., 9 Colo. 349, 12 P. 198, affirmed 144 U.S. 658, 12 S.C.t. 779, 36 L.Ed. 583; Gibson v. Anderson, 9 Cir., 131 F. 39; Jose v. Houck, 9 Cir., 171 F.2d 211; Mandel v. Great Lakes Oil & Chemical Co., 150 Cal.App.2d 621, 310 P.2d 498; 36 Am.Jur., Mines and Minerals, § 15, p. 291.

It is thus clear that respondent cannot assert a valid right to the so-called Radiant Mines claims Nos. 103 to 108 inclusive under its attempted original locations during 1953 and 1955, simply because the United States had withdrawn from entry or location the embraced land. The claims being void, respondent cannot assert either constructive or actual possession thereof based upon the attempted original locations.

Respondent asserts that Public Law 359, 84th Congress, c. 797, 30 U.S.C.A. § 621 et seq., 'recognizes the existence of claims within the withdrawal areas, and allows filing in the land office to establish a claim,' and that therefore Radiant Mines claims involved in this proceeding are not void.

Respondent relies on the provision of P.L. 359, § 4, 30 U.S.C.A. § 623, effective August 11, 1955, which provides that the owner of any unpatented mining claim referred to in P.L. 359, § 2, 30 U.S.C.A. § 621, shall file for record in the office of the land district in which the claim is situate, 'within one year after August 11, 1955, as to any or all locations heretofore made, or within sixty days of location as to locations hereafter made, a copy of the notice of location of the claim.' (Emphasis supplied.)

Code of Federal Regulations, Title 43, c. I, sub-c. 1, part 185, General Mining Regulations, relating to Public Lands, Bureau of Land Management, Department of the Interior, (published in 23 Federal Register, July 17, 1958), is intended to interpret and aid in executing P.L. 359, § 4, 30 U.S.C.A. § 623. Sec. 185.183(b) of those Regulations contains provisions which we must consider here:

That Sec. 4 of the Act--P.L. 359--in its application to unpatented locations of land referred to in § 2 of the Act, being 30 U.S.C.A. § 621, applies to unpatented locations only if:

'(1) The location was made on or after August 11, 1955, or

'(2) The location was made prior to August 11, 1955, and prior to withdrawal or reservation of the lands for power purposes [prior to September 28, 1922, in this case], or

'(3) [not applicable herein.]'

Sec. 185.183(c) of those Regulations provides that the owner of any unpatented location coming under the above Sec. 185.183(b)(1), 'within sixty days from the date of location shall file in the United States land office for the district in which the lands lie, a copy of the notice or certificate of location' (emphasis supplied); also further provides that the owner of any unpatented location coming under the above Sec. 185.183(b)(2), 'before August 11, 1956, shall have filed in the United States land office for the district...