Whiting v. Straup

• Decision Date: 25 May 1908
• Parties: WHITING ET AL. v. STRAUP ET AL
• Court: Wyoming Supreme Court

95 P. 849

17 Wyo. 1

WHITING ET AL. v. STRAUP ET AL

Supreme Court of Wyoming

May 25, 1908

ERROR to the District Court, Converse County; HON. RICHARD H SCOTT, Judge.

The action was brought by X. Whiting and J. Bevan Phillips against Erastus Straup, Moses Bijur and the La Prele Oil Company to enjoin the defendants from trespassing and drilling an oil well upon certain land. The parties were rival claimants of the land as oil and gas placer mining ground, upon which conflicting locations had been recorded. From a judgment in favor of the defendants the plaintiffs prosecuted error. The material facts are stated in the opinion.

Affirmed.

W. R Stoll, for plaintiffs in error.

Since certificates of location of mining claims and affidavits of assessment work are required by statute to be filed for record, the record thereof is prima facie evidence of the truth of the facts required to be therein recited, without an express provision to that effect. (Rev. Stat. 1899, Secs 2553, 2599, 2739, 2741, 2751; Laws 1901, Ch. 100, pp 104-105; 1 Lindley on Mines, Sec. 392; Barringer & Adams Law of Mines and Mining, 239, 267, 333; U. S. Rev. Stat., Sec. 2324; Mason v. Wilkinson, 2 Mont., 21; Mesick v. Sunderland, 6 Cal., 298; Chamberlain v. Bell., 7 Cal., 293; Golden Fleece Co. v. Cable &c. Co., 12 Nev. 312.)

A locator of a mining claim being allowed the entire year beginning with the first of January succeeding the year in which he makes the location within which to do his assessment work, if plaintiffs in error could be considered in the light of locators, dating their location from August 18, 1902, they would have all of the remaining year of 1902 and all of the year 1903 to do their assessment work. (Sec. 2324, R. S. U.S. as amended, Supp. R. S. U.S. Vol. 1, p. 276; Barringer & Adams, 263, 268; 2 Lindley on Mines, Secs. 624, 625.) The principle equally applies where the claimant claims under color of title, and, therefore, to the plaintiffs, though they were not the original locators, but held under a quit claim deed. (1 Cyc., 1082-1101; 2 Lindley on Mines, Sec. 633; Dolles v. Mines Co., 23 L. D., 267.)

Actual possession is valid as against a mere intruder or one having no higher or better right, and one in possession of a mining location attempting to discover mineral within its limits, has a right to protect his claim from the intrusion of others, whether they come there for the purpose of prosspecting for minerals or otherwise. He may forcibly expel them, or he may resort to law to protect his possession. And he cannot be ousted by the mere fact that the second claimant has discovered mineral first. (1 Lindley on Mines, Secs. 216-219, 378; Barringer & Adams M. & M., 216, 318-319; Crossman v. Pendery, 8 Fed., 693; Cosmos Ex. Co. v. Gray Eagle Oil Co., 112 F. 4; Weed v. Snook, 144 Cal. 439.) The only question as to possession is between plaintiffs and defendants. As between these parties, plaintiffs were in possession at the time of the intrusion, which was made without their acquiesence, knowledge or consent, and against their will. At the time of this intrusion, plaintiffs were not only in actual possession, but the property had previously been located, and plaintiffs had the paper title to the same, connected back with the original locators, and held the same under color of title. This being so, defendants cannot claim any right to possession, inasmuch as their claim is based on an entry in October, 1903, made without the knowledge or consent of plaintiffs and against their will.

Land is not vacant and unoccupied within the meaning of the mineral laws when such land is covered by a location and in the possession of the locators or their transferees. It is not necessary for such locators or transferees, where the claim is an oil or gas placer claim, to have discovered, or to be actually in the process of drilling for, either oil or gas upon the claim before it can be said that the claim itself is lawfully in their possession. All that is necessary is that, as between the parties raising the question and the persons in possession of the claim in good faith and holding the same under color of title, whether as original locators or as subsequent transferees, the latter are in possession of the same. And though mere surface indications, such as seepage of oil or gas, are not ordinarily a sufficient discovery to support a mining location of oil or gas lands, as against the Government, but oil or gas must be actually discovered within the claim, yet discovery need not precede location. A discovery subsequently made will relate back to and perfect the location; and the rights of the locators are the subject of sale and transfer as well before as after the discovery. (Cosmos Expl. Co. v. G. E. Oil Co., 112 F. 4, 190 U.S. 301; Kern Oil Co. v. Clarke, 30 L. D. 550; Oil Co. v. Clarke, 30 L. D. 570; New Sierra Oil Co. v. Home Oil Co., 98 F. 673; New Sierra Oil Co. v. Miller, 97 F. 681; Miller v. Chrisman, (Cal.) 73 P. 1083; Moffat v. Blue River &c. Co., 33 Colo. 142; 1 Lindley on Mines, Sec. 330; Weed v. Snook, 144 Cal. 439.)

It is a general rule relating to quit-claim deeds, or deeds of any character, that if it appears on the face of the instrument, either expressly or by necessary implication, that the grantor possesses a particular estate in the premises and he conveys the same by the instrument, he and all persons in privity with him are estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance, and this estoppel works upon the estate and binds an after-acquired title as between parties and privies. By the deed from Straup and its recitals he became estopped to claim title as against those claiming under the conveyance. (1 Devlin on Deeds, Sec. 27; 2 id., Secs. 837, 840; R. S. 1899, Secs. 2733, 2768, 2769; 16 Cyc., 688, 692, 695-696, 699; Reynolds v. Cook, (Va.) 3 S.E. 710; Flanary v. Kane, (Va.) 46 S.E. 681; French's Lessee v. Spencer, 21 How. 228; Landes v. Brant, 10 How. 347; Van Renslaer v. Kearney, 11 How. 297; Macgruder v. Esmay, 35 O. St. 221; Jackson v. Fish, 10 Johns. 456; Hagensick v. Castor, (Neb.) 73 N.W. 933; Clark v. Baker, 14 Cal. 612; Taggart v. Risley, 4 Ore. 236; Crane v. Salmon, 41 Cal. 63.) The other defendants were bound by the knowledge of Straup, and chargeable with notice of the facts imparted by the documents on record relating to the land.

Where several persons are acting together jointly, either in their own business or as the agents for another, the knowledge acquired by one of them while so acting is the knowledge of all. The knowledge of the officers or agents of a corporation when acting in their official capacity relating to the business of the corporation, is the knowledge of the corporation. (10 Cyc, 826, 1054, 1057, 1059, 1062-63; Wade on Notice, Secs. 687, 688; Mechem on Agency, Secs. 721-731.)

F. H. Harvey, and Burke & Clark, for defendants in error.

The location under which plaintiffs' claim was invalid for want of a discovery, and the discovery thereafter made on the north forty of the claim by Straup did not inure to the benefit of the former location, but to the benefit of the locators of the later claim in whose behalf the discovery was made. Even were it a fact that the original owners of the former claim had discovered oil or gas within the bounds of the claim held by them, it could not be contended by the plaintiffs in error herein that such discovery would inure to the benefit of the south forty thereof, which had been, prior to such discovery, conveyed to Phillips, for it is settled that whenever a claim is divided and a portion conveyed in severalty, there is a severance of community interest, and each parcel constitutes a separate claim and must stand upon its own bottom--must have a separate discovery and separate assessment work to the full statutory amount. (2 Lindley, Par. 338.)

Therefore the proposition involved is whether Phillips and Whiting had such possession of the land as to successfully prevent a location by prospectors who had discovered gas under the surface of the land in controversy, and whether or not the defendants are estopped from alleging a discovery and location made by Straup as their agent because of the fact that he had previously conveyed by quit claim deed, the property in controversy to Phillips. Since the location made by Straup and conveyed to Phillips was not based upon a valid discovery prior to the time the conveyance was made, or any valid discovery by Phillips prior to October, 1903, when Straup moved the drilling rig of the locators upon the land and began drilling a gas well there, Bijur and associates could justify their action in locating upon this land and basing their location upon a valid discovery made therein, irrespective of any attempted location not based upon discovery, by any persons prior thereto. A valid claim may be located for others through an agent, and the conveyance previously made by Straup to Phillips by quit claim deed could not operate as an estoppel to their location, based upon a valid discovery made within the ground which Straup had previously located upon, but upon which neither he nor his successors in interest had made any valid discovery. Although the location was made on behalf of Bijur and his associates by an agent, the doctrine of estoppel will not apply to the La Prele Oil Company, which subsequently became invested with the title, and it can make no possible difference that Straup was connected with that Company. The title which the company received has no privity whatever with Straup. Bijur and his associates, we contend, could locate a placer oil mining claim through any agent, irrespective of notice of the purported conveyance from Straup to Phillips of a...