BOSCARINO v GIBSON
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NO. 82-412 I P J THE SUPREME COURT OF T I STATE OF JIONTATJA IE 1983 SAMUEL J. BOSCARINO and HAZEL BOSCARINO, Plaintiffs and Respondents, -vsRAY N. GIBSON, ARTHUR E. BAILEY, et al., Defendants and Appellants. APPEAL FROM: District Court of the Third Judicial District, In and for the County of Granite, The Honorable Robert J. Boyd, Judge presiding. COUNSEL FOR RECORD: For Appellants: Tipp, Hoven, Skjelset & Frizzell; Thomas Frizzell argued, Missoula, Montana For Respondents: Mulroney, Delaney P?issoula, Montana & Dalby; Stephen Submitted: Decided: Clerk 13. Dalby argued, September 19, 1983 December 7, 1983 - Mr. Justice John C. Court. Ray Gibson, et District Court of Sheehy delivered the Opinion of the al. a the appeal Third from decision of the Judicial District, Granite County, in favor of the Eoscarinos. Findings, conclusions and judgment were filed on April 1-4, 1952, which declared. Boscarino's mining cl-aim val-id as against Ray Gibson and his co-locators. In addition, Lee Morin was permanently enjoined from performing work upon the mining claim known as the Reynolds City Placer Mining Claim. denied the defendants' motion After the District Court to amend the findings, conclusions and judgment, they filed a notice of appeal on July 6, 1982. We affirm the District Court iudgment. This case involves an area of public land located in the Garnet Mining District, situated in both Granite and Powell County. Federal statutes allow any person to enter and. 30 U.S.C. S 5 22, 26. explore public lands for minerals. The act of exploration gives the explorer a right to possession of the exploration area, whereas compliance with the federal and state statutes, including discovery of a valuable mineral deposit, is necessary for a locator to enjoy a right to exclusi~re possession of a claim. Cole v. Ralph (1920), 252 U.S. 286, 40 S.Ct. 321, 64 L.Ed. 567; 30 U.S.C. v. Nelson (9th cir. 1.964), 329 F.2d S 26; Davis 840; Anaconda Co. v. Whittaker (Mont. 1980), 610 P.2d 1177, 37 St-Rep. 902. The law at the time of the attempted location controls in a determination of whether a mineral location was valid. Anaconda Co. v. Whittaker, supra. claim must be 50-701, R.C.M. Therefore, Boscarino's reviewed according to 1968 law. 1947, states tha-t: Section "Any person who discovers upon the public domain of the United States, within the state of Montana, a vein, lode, or ledge of rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, or a placer deposit of gold, or other deposit of minerals having a commercial value which is subject to entry and patent under the mining laws of the United States, may, if qualified by the laws of the United States, locate a mining claim upon such vein, lode, ledge, or deposit in the following manner. . ." The statute goes on to describe how to post and mark the A certificate of the locati-on is required and when location. verified "is prima recited therein." In facie evidence of all facts properly Section 50-702, R.C.M. 1968, Ray Austin 1947. and Dennis OILaughlin filed a certificate of location in Granite County for an unpatented placer mineral location, which they named the Reynol-ds City Placer Mining Cl-aim. The boundaries of the claim formed a rectangle which lay across the Granite County-Powel.1 County border. The four corners of the cla.im were marked by three hl-azed trees and a post which was painted yellow and steadied by a mound of rocks at its base. posted near the point of discovery. A notice of location was There were blazed trees between each of the ma-rked four corners. Austin and OILaughlin were unaware that part of the claim lay in Powell County; thus they originally filed their certificat.e only in Granite County. They were also unaware that the claim constituted approximately 31 acres of land rather than the 20 stated in the certificate. OILaughlin and Austin made their discovery of gold by using a backhoe. In the years from 1-968 until the time they sold the claims to Sam and affidavits Hazel of Boscarino, annual OILaughlin and. Austin representation on the fj.1-ed cl-aims, as required by section 82-2-103, MCA (formerly section 50-704, R.C.M. 1947). Following the sale, Boscarino filed such affidavits. In June 1973, OILaughlin found out that a portion of the claim was located in Powell County and filed a certificate of location in that county, on June 25, 1973, simila-r to the one filed in Granite County. On June 18, 1973, just a week prior, Gibson ha.d filed a certificate of location in Powell County for a placer mining claim called the Reynolds City Off Day Gulch. The Gibson cl.aim overlapped at least a portion of Boscarino's claim in Powell County. When this certifica.tewas filed, Gibson knew of Roscarino's claim and that his certificate was not filed in Powell County. Gibson filed additional certificates of location in 1974, 1975 and 1979. In 1980, Lee Morin located two claims (Faith No. 2, a placer and lode claim and Faith No. 14, a lode claim), both of which overlapped Powell Countv Boscarino's certificate of location. land described in Morin was digging holes and test pits in an effort to explore for barite, which samples showed was present. On October 15, 1980, Boscarino filed a complaint in the District Court requesting that Morin be restrained and enjoined from entering upon or working the claims located. on Boscarino's claim. The complaint also asked the District Court the to determine rights of the parties involved (including Gibson, et a.1.) and to find the Boscarinos owners of the real property on which their claims were filed. Finally, Roscarino asked for $50,000 for slanzer of title. After a trial, the District Court adopted, for the most part, the findings of fact and concl.usions of law submitted by Boscarino. The court concluded that the mining claim filed in 1968 and "validly located, 1973 Austin by and O'Laughlin was a r e c o r d e d and e x i s t i n g p l a c e r mining c l a i m under t h e laws o f t h e S t a t e of Montana-." The D i s t r i c t C o u r t concluded t h a t t h e Gibson c l a i m , on t h e o t h e r hand, was made " o t h e r t h a n i n good f a i t h and w i t h n o t i c e t h a t t h e P l a i n t i f f s . . ." t h e i r had v a l i d l y l o c a t e d , marked and r e c o r d e d The Gibson 80-acre claim declared void, be as it violated the SS 3 5 , 36 and a s i t was l i m i t a t i o n s e t i.n 30 U.S.C. "not properly could was claim. l o c a t e d on t h e ground s o t h a t i t s b o u n d a r i e s readily traced and contained no reference to a n a t u r a l o b j e c t o r permanent monument a s would i d e n t i f y t h e c l a i m , " i n v i o l a t i o n of s e c t i o n s 82-2-101 subsequent certificates a l s o declared void alia, locations a s v i o l a t i v e of filed by The Gibson w e r e f e d e r a l and s t a t e law. locations f i l e d f o r Faith No. 2 and 1.4 by Lee Morin were d e c l a r e d v o i d b e c a u s e , inter The c e r t i f i c a t e of F a i t h No. of and 1 0 2 , MCA. llorin had Boscarino's claim, "actual and constructive notice" of a s it e x i s t e d i n b o t h G r a n i t e and Powell Counties. Based on t h e f o r e g o i n g c o n c l u s i o n s , t h e D i s t r i c t C o u r t d e c l a r e d t h a t Boscarinc? owned a v a l i d p l a c e r mining c l a i m , l o c a t e d i n b o t h G r a n i t e and Powell C o u n t i e s . The c o u r t a l s o permanently e n j o i n e d and r e s t r a i n e d Morin from e n g a g i n g i n o r p e r f o r m i n ? any work upon t h e R o s c a r i n o s ' claim. The Soscarino appellants have a raise right two to issues on exclusive appeal: possession (1) D i d of his u n p a t e n t e d mining c l a i m ; and ( 2 ) D i d Morin have a r i g h t t o be p r o t e c t e d from f o r c i b l e e v i c t i o n by c o u r t o r d e r ? The f i r s t i s s u e a r i s e s from G i b s o n ' s c o n t e n t i o n t h a t a t t h e t i m e o f G i b s o n ' s e x p l o r a t i o n and l o c a t i o n o f t h e Reynolds C i t y Off Day Gulch c l a i m B o s c a r i n o had no r i g h t t o e x c l u s i v e possession of the land. Boscarino allegedly had not made a discovery of gold sufficient to perfect his title to the claim and therefore had only constructive possession provided by the certificate of location filed in Granite County. It is well-established that for a location of a mining claim on public property to be valid there must have been a discovery of a valuable mineral. Cole v. Ra.lph (1920), 252 U.S. 286, 40 S.Ct. 321, 64 L.Ed. 567; Belk v. Meagher (1881), 104 U.S. 279, S.Ct. , 26 L.Ed. 735; Davis v. Nelson (9th cir. 1964), 329 F.2d 840; 30 U.S.C.A. v. Whittaker S 23; Anaconda Co. (Mont. 1.980), 610 P.2d 1177, 37 St.Rep. Ferris v. McNally (1912), 45 Mont. 2 0 , 902; 121 P. 889; Upton v. Larkin (1885), 5 Mont. 600, 6 P. 66. "Until discovery is made, no right of possession to any definite portion of the public mineral lands can even be initiated. Until that is done, the prospector's rights are confined to the ground in his actual possession, and until that possession is disturbed no right of action accrues, and even then no injunction would issue to restrain a mere trespass--certainly not in the absence of some showing of irreparable injury or the insolvency of the trespasser. " Gemrnel v. Swain (1903), 28 Mont. 331, 335, 72 P. 662. Between rival claimants the test of what constitutes a sufficient discovery has become that of a "prudent man." The prudent man rule was discussed in Chrisman v. Miller (1905), U.S. "'Where mineral-s 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. To hold otherwise would tend to make of little avail, if not entirely nuga-tom, that provision of the law whereby "all valuable mineral deposits in 1-ands belonqing to the United States are declared to he free and open to exploration and purchase."' (Quoting Castle v. Womble (1894), 19 L.D. 455, 457.) ... . . . "It is true that when the controversy is between two mineral claimants the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural entry, for the reason that where land is sought to be taken out of the category of agricultural lands the evidence of its mineral character should be reasonably clear, while in respect to minerallands, in a controversy between claimants, the question is simply which is entitled to priority. That, it is true, is the case before us. But even in such a case, as shown by the authorities we have cited, there must be such a discovery of mineral as gives reasonable evidence of the fact either that there is a vein or lode carrying the precious mineral, or if it be claimed as placer ground that it is valuabl-e for such mining." and Murray v. White (1910), 42 Mont. 423, 433-4, 113 P. 754, "Neither the federal nor state statutes require that, to constitute a placer, the ground shallvield anv s~ecific auantitv of ~recious metals. heither is i< require; that ;he-deGosits of mineral shall be sufficiently extensive to pay operating expenses in order to locate and maintain a valid placer claim. . . 1 "It has long been the settled rule that to constitute a discovery, within the meaning of that term as used in mining law, i.t is sufficient that precious metals be found in the ground in quantity which justifies the locator in spending his time and money in prosecuting development work with the reasonable hope or expectation of findinq mineral in payment q6antities, Harrington v. chambers, 3 Utah, 94, 1 Pac. 362; - -v. ~ u s t i z Book Mining Co., (C. C.) 58 Fed. 106; Nevada Sierra - - -v. Home Oil Co. Oil Co.. (C. C.) 98 Fed. 676, 27 Cvc. 556: Snyder . . K~ines, 349, 360: ~hre;e v. Copper Bell M. - Co., 11 Mont. 309, 28 Pac. 315; K ~ h a n e Kenkle, v. 18 Mont. 208, 44 Pac. 979, 33 L. R. A. 851, 56 Am. St. Rep. 577; Noyes Clifford, 37 Mont. 138, 94 Pac. 842." The question of whether Boscarino made a discovery sufficient to make valid his location is for the trier of fact. Ferris v. McNally (1912), 45 Mont. 20, 121. P, 889; Lange v. Robinson (9th cir. 1.906), 148 F. 799. The District Court in this case concluded that the claim made by 0'1,auqhlin and Austin (Boscarino's predecessors in interest) was a "validly located, recorded and existing pla.cer mining claim under the 1-aws of the State of Montana.." It is undisputed tha.t this Court's function is limited to determining whether the District Court's findings conclusions were supported by substantial. evidence. remains the sa.me where proposed findings are and The test adopted whol-esale by the District Court, even though this Court has disapproved of such adoption. Sawyer-Adecor International v. Anglin (Mont. 1982), 646 P.2d 1194, 39 St.Rep. 1118. Viewing the evidence in a light most favorable to Roscarino, there is amp1.e support for the District Court's finding of a valid location. It is undisputed that a discovery of gold was made by Austin and O'Laughlin. As to his discovery, OIT,a.ughlin testified as follows: "Q. What. ki.nd of work did you do? there with my hackhoe and dug prospected it. A. I went up trenches and. "Q. Did you at any time actively work the claim for profit? A. Well, not very much. "Q. By that you mean a little bit? never could find too much. A. Yeah, I "Q. On one occasion d.id you find something that was worth pursuing? A. Well, I figured. it was. "Q. Did you leave tha.t area open? A. Well., yes, and I hauled up sluice boxes and put them in there. "Q. And then you worked it with a sluice box? Yes." The annual representation reports filed by A. O'Laughlin, Austin, and Boscarino list roadbuilding, road improvements, diqging, and testing as work done over the years on the land. It is also relevant that OIL,aughlinis an experienced miner and that the claim is located in an area where mining had historically occurred and was currently occurring. Once a valid location is made, the holder has an exclusive right of possession which is "subject to sale an.d other forms of disposal U.S. 286, 295. . . ." Thus, a Cole v. Ralph (1920), 252 valid location by Austin and OILaughlin gave them an interest transferable and enforceable by Boscarino. Resolution of the first issue in favor of Boscarino dictates the outcome of the second issue. Morin contends that because Boscarino was not in actual possession of the land, the doctrine of pedis possessio, which gives a right to possession of the area of actual exploration.,provided Morin protection against ouster. Norin seeks to have the injunction granted by the District Court declared improper. Morin is precluded from asserting a p i s possessio right of possession given Boscarino's valid location. As the claims made by Morin were on the la.nd included in the area to which Boscarino had exclusive possession, Morin was precluded from entering on the ].and to make an adverse claim. The District Court was correct in granting the injunction. The District Court judgment is affirmed. c We Concur: Chief Justice c Justice . Hon. Thomas A. Olson, District Judge, sitting for Mr. Justice Frank B. Morrison, Jr.
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