Silver Jet Mines, Inc. v. Schwark

682 P.2d 708, 210 Mont. 81, 1984 Mont. LEXIS 928
Montana Supreme Court·Decided May 17, 1984·No. No. 83-196·Published·Cited by 1 cases

Opinion

MR. JUSTICE HARRISON

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[85]*85side” was located. Discovery and corner location on Riverside all occurred in 1957. Mining work continued on the patented claims and on Riverside until 1960 at which time all mining operations by Montana Standard in the area ceased. There was intermittent assessment work done by Montana Standard, Silver Jet after it obtained the claims, and several would be locators until approximately 1980, when this dispute arose.

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 [86]*86entered on February 8, 1983. Schwark was found to have title to the conflicting parts of the Bettye, Tucker and Mary claims, because of invalid discovery by Silver Jet’s predecessor Montana Standard. However, Silver Jet was found to have good title to the Riverside claim. Schwark appeals from this finding, and Silver Jet appeals from the finding concerning the Bettye, Tucker and Mary claims.

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.

[87]*87The trial court here found there had been a sufficient discovery of minerals on the claim and we agree. The certificate of location filed by the original locators in 1957 is prima facie evidence of the existence of a valid discovery. Section 82-2-102(2), Thomas v. South Butte Mining Co. (9th Cir. 1914), 211 F. 105; motion denied, 34 S.Ct. 999, 234 U.S. 754, 58 L.Ed. 1578. Prima facie evidence will stand unless contradicted and overcome by other evidence. Section 26-1-102(6), MCA. In this case, the prima facie evidence was not contradicted or overcome by any other evidence presented. Though the two men who originally located the claim for Montana Standard are now deceased, the wife of one of the locators testified that there was a vein showing in a shaft on the claim and that minerals had in fact been extracted. As the discussion in Boscarino shows, the burden of proving discovery is not high. The question of how much ore is sufficient to sustain a discovery is properly left to the trial court, and its decision will not be overturned if supported by substantial evidence. Boscarino, supra. Such evidence existed here.

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.

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Silver Jet Mines, Inc. v. Schwark, 682 P.2d 708, 210 Mont. 81, 1984 Mont. LEXIS 928 (Mo. 1984).

682 P.2d 708 (Silver Jet Mines, Inc. v. Schwark) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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