DocketNumber: No. 83-196
Citation Numbers: 210 Mont. 81, 682 P.2d 708
Judges: Gulbrandson, Harrison, Haswell, Morrison, Weber
Filed Date: 5/17/1984
Status: Precedential
Modified Date: 9/9/2022
delivered the Opinion of the Court.
This action was brought by Silver Jet Mines, Inc. to quiet title in itself to four unpatented lode mining claims in the Burns Mining District in Sanders County, Montana which are also claimed by Franklin Schwark. Title to three of the claims was found to be in Schwark and the fourth in Silver Jet. Schwark appeals as to the claim quieted to Silver Jet and Silver Jet cross appeals to the remaining three.
Silver Jet is the successor in interest to certain mining properties once held by the Montana Standard Mining Company. The claims in dispute here are approximately ten miles southwest of Thompson Falls, Montana in the area of Prospect Creek. In the 1930’s Montana Standard obtained patents to ten claims lying south of Prospect Creek. The creek runs through the bottom of a valley and the claims were worked by means of several tunnels which extended south, away from the creek into the hillside. The unpatented claims here in dispute were not located by Montana Standard until the 1950’s and lie on the opposite side of the valley, north of Prospect Creek.
Three of the four claims in dispute, “Bettye,” “Tucker” and “Mary” were originally located as mill sites in 1954, but amended notices of location were filed in 1957 changing them to lode claims. Also in 1957 the fourth claim, “River
Schwark is a long time resident of the area and had noticed rock outcroppings in the area during hunting trips. In 1979 he inquired of the Bureau of Land Management concerning the existence of claims north of Prospect Creek, and was informed there were none. In September 1980, Schwark and Donald Grimm located several unpatented claims known as the “Grub Stake” group. Six of these claims overlapped with the four unpatented Silver Jet claims.. In the summer of 1981, Schwark began extracting ore samples from his unpatented claims. Remos Killian, president of Silver Jet, observed Schwark and notified him of the conflict. Discussions as to ownership ensued, and a short time later Silver Jet filed this action to quiet title in itself to the four claims.
The complaint was filed on October 2, 1981, requesting that Schwark be enjoined from entering onto Silver Jet’s mining claims and that title to the claims be quieted to Silver Jet. An order to show cause was issued on October 6, 1981 and a hearing on Silver Jet’s request for an injunction was held on October 27. After the hearing, both parties were restrained from performing assessment work, removing minerals or otherwise disturbing the ground on the disputed area of the claims. On February 23, 1981, Schwark filed his answer and asserted a counter claim for damages resulting from the forced cessation of his mining activity. A non-jury trial before Judge Jack L. Green was held in August of 1982, at which both parties presented evidence on the validity of the claims, reserving the question of damages. Findings of fact, conclusions of law and the order were
We first discuss the issues raised on direct appeal by Schwark, concerning the Riverside claim. Schwark alleges two defects in Silver Jet’s work on the claim which, he argues, result in a forfeiture. First he attacks the sufficiency of the discovery by Silver Jet’s predecessor in interest, and second he attacks the sufficiency of the annual assessment work done by Silver Jet.
A condition precedent to a valid mining location is the, “[A]ctual discovery of a vein, lode or ledge of rock in place bearing a valuable mineral deposit.” Anaconda Co. v. Whittaker (Mont. 1980), 610 P.2d 1177 at 1179, 37 St.Rep. 902 at 904, citing Upton v. Larkin (1885), 5 Mont. 600, 6 P. 66. When a subsequent locator questions the existence of such a discovery, it is incumbent on the original locator to prove that he has discovered sufficient minerals as will meet the “prudent man” test. Boscarino v. Gibson (Mont. 1983), [207 Mont. 112,] 672 P.2d 1119, 40 St.Rep. 1931. The prudent man rule has been stated as,
“Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met.” Chrisman v. Miller (1905), 197 U.S. 313, 322-23, 25 S.Ct. 468, 470-71, 49 L.Ed 770, 773-74.”
There is no requirement that ore be found in sufficient quantity to support a profitable mining operation, nor is it required that any specific quantity of ore be found. In the end, the sufficiency of discovery is a question of fact to be decided below. Boscarino, supra.
Schwark next attacks the sufficiency of the annual assessment work performed on behalf of Silver Jet. Since Schwark did not locate his claim until September of 1980, we only need scrutinize the assessment work of 1980, as the assessment work for prior years is inconsequential. If the 1980 work is sufficient, Silver Jet has a valid claim. Thornton v. Kaufman (1910), 40 Mont. 282, 106 P.2d 361. If the 1980 work is insufficient, even sufficient work from prior years could not save Silver Jet’s claim, presuming a valid subsequent location by Schwark. 30 U.S.C. 28 and Public Service Co. of Oklahoma v. Bleak (Ariz. 1982), 134 Ariz. 311, 656 P.2d 600. It should also be noted that although Schwark’s location was done in the calendar year 1980, the prior annual assessment period ended on August 30, 1980. For Schwark’s location to be valid, Silver Jet’s assessment work for the period of time beginning September 1, 1979 and ending August 30, 1980 must be invalid. See 30 U.S.C.
The assessment work claimed to have been done by Silver Jet consisted of securing the entrance to “tunnel #3” to prevent unauthorized entry, clearing growth on the path to the tunnel, and clearing approximately 6000 square yards of ground. This work was done on Silver Jet’s patented claims, but it claimed attribution to the unpatented claims under Section 82-2-103(2), MCA. Schwark alleges two defects here as well; first, that the work claimed is not proper annual assessment work, and second that it may not be attributed from the patented to the unpatented claim.
Generally, assessment work must tend to develop the claim and facilitate the extraction of ore therefrom. Golden Giant Mining Co. v. Hill (N.M. 1921), 27 N.M. 124, 198 P. 276. Whether or not the work done meets this requirement is a question of fact, but courts should not substitute their own judgment as to the wisdom and expediency of the method employed for developing the mine in place of that of the owner. Mann v. Budlong (Cal. 1900), 129 Cal. 577, 62 P. 120. The trial court’s finding that assessment work is sufficient to prevent an unpatented claim from being opened for relocation will not be disturbed on appeal unless clearly against the preponderance of the evidence. New Mercur Mining Co., v. South Mercur Mining Co., (Utah 1942), 102 Utah 131, 128 P.2d 269, cert. den. 63 S.Ct. 1162, 319 U.S. 753, 87 L.Ed. 1707.
The trial court found that the work claimed in the 1980 affidavit of annual assessment was valid assessment work, and we agree. There was evidence elicited at trial which showed that the clearing could and would be used as the needed base of operations for mining and unpatented claims. There was also evidence that the unpatented claims could be mined from tunnel #3. Thus the work done on these directly facilitate the development of the mine and the extraction of ore. It has been held that road work and repair work done on roads to mining claims both constitute
Schwark next contends that this work was performed on the patented claims and may not be attributed to the unpatented claim. Assessment work not done on a particular claim or group of claims may only be attributed to the claim(s) if it is done,
“[F]or the purpose of developing the claims and to facilitate the extraction of ore therefrom ... In such case the work or expenditure must be for the purpose of developing all the claims ... If the work is not a part of a general plan having in view the development of the group or consolidated claim, so that the ore may be more readily extracted, and the work has no reasonable adaptation to that end, then no matter what the amount of it is, it cannot be said to have been done in the development of the group.” Copper Mountain Mining and Smelting v. Butte and Corbin Consolidated Copper and Silver Mining Co. (1909), 39 Mont. 487 at 492-3, 104 P. 540 at 541-2.
The burden of proving such a benefit to the other claims is on the one seeking attribution. Copper Mountain, supra. The trial court found that Silver Jet had met this burden, and again we agree. As noted above, all the 1980 assessment work was done off of the Riverside claim. However the evidence showed that the clearing is the closest flat area to the unpatented claims, and it would be necessary to base any mining operation on Riverside in that area. There is also evidence that the dike of mineral evident on the Riverside claim spans the valley onto the patented claims,
On cross appeal, Silver Jet contests the trial court’s action quieting title to the overlap portions of the Mary, Bettye and Tucker unpatented claims to Schwark. Silver Jet contends that the court applied an incorrect rule of law to require forfeiture. It is their position that the court applied the “marketability” test to Silver Jet’s predecessor’s location which would be an incorrect application of the law as between rival claimants. See Boscarino v. Gibson (Mont. 1983), [207 Mont. 112,] 672 P.2d 1119, 40 St. Rep. 1931. However, the trial court specifically found that:
“Plaintiff was unable to prove that they or their predecessors had located a valuable mineral deposit on any of the unpatented claims except Riverside. Failure to establish a prima facie showing of valuable mineral deposits renders the Plaintiff’s interest in the Bettye, Tucker and Mary unpatented claims invalid.”
Based on the above finding the court ruled that:
“Plaintiffs interests in the Bettye, Tucker and Mary unpatented lode claims are deemed forfeited because of the Plaintiff and its predecessors’ failure to substantially comply with state and federal mining law intended to develop mineral deposits on the public domain.”
Contrary to Silver Jet’s assertions, the trial court based its decisions on the failure to locate any minerals, not
Affirmed.