Jackson v. RobertsonJackson v. Robertson
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This is an appeal from the trial court’s order fixing ownership interests in mining claims on federal land. Appellants, defendants below, raise two questions of federal statutory interpretation. They urge that *1179provisions of
This case involves the twenty-year struggle of two appellants, Wanda S. Robertson and Conrad E. Bales, to keep in good standing 51 unpatented mining claims in Wyoming. In 1965 Wanda Robertson, Conrad Bales and Lois Rinard staked the 51 claims and filed the location notices.
Mr. Bales, Mrs. Robertson and Mrs. Rinard assigned their claims to the GOCE Corporation in December 1966. The GOCE Corporation died in 1974, and the ownership it had was divided between Mr. Bales and Mrs. Robertson. These two appellants later transferred their interest in the claims to trusts. They held no beneficial interest in the trusts but were trustees.
From 1966 forward the GOCE Corporation or its successor in interest has assigned small undivided interests in the claims. The assignments were usually made in exchange for either labor or funds for assessment work. A number of these interest holders are the appellees. The exact exchange involved in some of these assignments is one target of dispute on appeal.
Mrs. Robertson or Mr. Bales caused the annual assessment work required by
Mrs. Robertson sent notice under
The court below found that Mrs. Robertson complied with the 1976 Land Act (
Appellants argue the court erred in its application of both
We examine first the appellants’ attack on the validity of all appellee interests in the claims. The trial court found that *1180Wanda Robertson complied with the 1976 Land Act in September 1979, and the record supports this finding. She sent notice which identified the owners of the claims to the Bureau of Land Management as “Lighthouse, a Trust . . . and Resource Trust . . . and et al. (some minor interest assignments) all of whom are considering themselves as the GOCE Owners Association.” The appellees stipulated that they made no effort to comply with the Act. Appellants conclude that this failure renders appellees’ interests abandoned and void. The trial court found that Mrs. Robertson’s notice of ownership to the BLM was effective as to all of the interest holders. We agree with this determination.
The Land Act generally requires owners of unpatented mining claims to file with the BLM the location and a description of the claims. The Act also requires the filing of a proof of labor. See
“[I]t shall not be considered a failure to file if the instrument is defective or not timely filed for record under other Federal laws permitting filing or recording thereof, or if the instrument is filed for record by or on behalf of some but not all of the owners of the mining claim ____” (Emphasis added.)
Mrs. Robertson’s notice to the BLM recognized in its list of owners “some minor interest assignments.” This constituted a filing “on behalf” of all of the interest holders for purposes of compliance with the statute and avoided conclusive abandonment of these interests. The Supreme Court in United States v. Locke, — U.S. -, 105 S.Ct. 1785, 85 L.Ed.2d 64, has held that the statute must be strictly applied as to the time for filing, and is valid.
Appellants attempt to avoid the effect of their filing on behalf of other interest holders. They urge that the failure of appellees to file additional information required by the regulations triggers as to them the abandonment provisions of the law. They point specifically to
“§ 1744(c) . . . assumes that even defective filings put the Secretary on notice of a claim, and we hold that once on notice, the Secretary cannot deem a claim abandoned merely because the supplemental filings required only by § 3833 — and not by the statute — are not made.” (Emphasis in original.)
If failure to file the supplemental requirements contained in the regulations cannot be used by the Secretary to deem a claim abandoned, then it is clear that this failure may not be used by private parties to settle disputes over ownership of mining claims.
We affirm the trial court’s determination and find the notice filed protected appellees’ interests under
The appellants assert that some of the appellees’ interests were forfeited to them under
“On each claim located after the 10th day of May, 1872, and until a patent has been issued therfor, not less than $100 worth of labor shall be performed or improvements made during each year____ Upon the failure of any one of several coowners to contribute his proportion of the expenditures required hereby, the coowners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent coowner personal notice in writing or notice by publication in the newspaper . . . and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his coowners who have made the required expenditures.”
Appellants claim they gave notice under the statute on three separate occasions. Wanda Robertson made the first effort to give notice to two interest holders. F.M. Stevenson and Zach Brinkerhoff each received a notice in the same envelope.
Mrs. Robertson titled both notices “GOCE Claims — Assessment Work Expenses.” She referred to copies of federal regulations (
The trial court found the notice to Mr. Stevenson and Mr. Brinkerhoff defective because Wanda Robertson signed them as an individual. Thus the court concluded Mrs. Robertson was not a “co-owner” within the meaning of the statute. In reaching this conclusion the court relied on Turner v. Sawyer, 150 U.S. 578, 14 S.Ct. 192, 37 L.Ed. 1189. It is true that Turner strictly construed the statute to read “that the right to give this notice of a claim for contribution is limited to a coowner who has performed the labor.” Turner at 584, 14 S.Ct. at 194 (emphasis in original). However the Court limited its opinion to find that a holder of a sheriff’s certificate of purchase at an execution sale is not a co-owner for purposes of the law. Id. at 585, 14 S.Ct. at 194.
The statute does requires indicia of ownership before a person has the right to invoke its forfeiture provisions. In order to give notice under the statute a person must have the “duty and right” to protect his title. See Van Sice v. Ibex Mining Co., 173 F. 895, 897 (8th Cir.1909). Although Mrs. Robertson did not sign her letters to Mr. Stevenson or Mr. Brinkerhoff on behalf of the entities holding legal title, she had the right to do so at all pertinent times.
Mr. Stevenson paid approximately one-half of the amount due within the statutory time limit. On appeal Mr. Ste*1182venson implies that this partial payment constitutes full compliance with the statute. He contends that Mrs. Robertson’s acceptance of the amount without a request for further payment constitutes a waiver of her rights to contribution. This is not the case. If a co-owner provides proof of annual labor performed and there is a failure of another co-owner to contribute his share, then “a presumption that the delinquent has been cut off” is created. Pomeroy at 259. A delinquent co-owner complies with the statute only by paying his “proper portion within the period fixed by statute.”
Mr. Brinkerhoff states that he did not receive his letter from Mrs. Robertson within 90 days of its mailing. This however makes no difference. Mr. Brinkerhoff testified that he read the notice. He had 90 days thereafter in which to pay but he did not do so. His interests were forfeited under the statute 90 days after he received the notice.
We reverse the trial court’s finding that notice to Mr. Stevenson and Mr. Brinkerhoff was of no legal effect. We must remand this case to the trial court for a determination of co-owners eligible to share the interests forfeited by Mr. Stevenson and Mr. Brinkerhoff and to determine whether co-owners in 1980 avoided forfeiture for that year by doing assessment work and filing proof of labor.
Mrs. Robertson and Mr. Bales also sent notices that complied with the provisions of
There is no prohibition against accumulating assessment work costs for several years and including them in a single notice. Elder v. Horseshoe Mining & Milling Co., 194 U.S. 248, 24 S.Ct. 643, 48 L.Ed. 960; Pomeroy v. Sam Thorpe Mining Co., 37 Ariz. 541, 296 P. 255; Evalina Gold Mining Co. v. Yosemite Gold Mining & Milling Co., 15 Cal.App. 714, 115 P. 946.
Congress provided the “advertising out” procedure whereby the delinquent co-owner forfeits his interest to the co-owner who did or caused the required assessment work to be done (there being no agreement to the contrary as to the work) and who gave the proper notice personally or by publication. It is a remedy which does not require judicial intervention. It is the exclusive remedy to divest the delinquent co-owner of his interest. 2 Rocky Mtn.Min.L.Inst., § 8.8. The forfeiture is automatic and title vests in the co-owner giving proper notice and the statute provides the effective date.
Forfeitures are, of course, not favored but Congress has provided this method to see that all co-owners bear their share of the burden. This court said in Van Sice v. Ibex Mining Co., 173 F. 895, 897, 97 C.C.A. 587 (8th Cir.):
“It is also contended that a court of equity will not aid in enforcing a forfeiture; but that is not invariably true. The rule is that a forfeiture will be enforced in a court of equity, when such relief accords more with the principles of right and justice than would the denial *1183thereof. Brewster v. Lanyon Zinc Company, 140 Fed. 801, 72 C.C.A. 213; Lindeke v. Associations Realty Co., 146 Fed. 630, 77 C.C.A. 56. There is the more reason for it in a case like the present, where the duty imposed by the statute upon a co-owner is not alone to his associates, but is also because of considerations of the common welfare. It is of public importance that the mineral resources of the country be explored and developed, and not left in indolent or indifferent hands. The policy exhibited in the statute would be ill subserved if, in the annual performance of labor and making of improvements, a co-owner of an unpatented claim might safely refuse or neglect to cooperate or contribute.”
We must reverse the court’s determination that the 1981 notices to interest holders was of no legal effect. We remand this issue as well for a determination of the co-owners entitled to the forfeited interests.
The trial court determined the percentage of interest held by several appellees. Thus Judy Packard Jennings placed an assignment of a 1% undivided interest in the GOCE claims into evidence at trial. Wanda Robertson signed the instrument as Financial Vice-President of GOCE Corporation on July 14, 1967. The appellants produced a promissory note signed by Mrs. Jennings on the same date. The note recorded Mrs. Jennings’ promise to pay $1,500.00 within a year for her interest. Mrs. Robertson admitted that Mrs. Jennings paid $500.00 on the date of the assignment. Failure to pay the balance due resulted in a forfeiture of Mrs. Jennings’ interest under the terms of the note. Mrs. Jennings did not appear or testify at the trial. Mr. Bales knew of the note and agreement but did not know whether Mrs. Jennings had or had not made any further payments. Mrs. Robertson also had no memory of Mrs. Jennings’ payment of the note or failure to pay. The facially valid assignment provided prima facie proof of her claim. See Owens v. Sun Oil Co., 482 F.2d 564 (10th Cir.,1973). Appellants had filed a counterclaim which was really an affirmative defense. See
As mentioned, neither Mr. Bales nor Mrs. Robertson could remember if Mrs. Jennings had made further payment on the note. They offered no testimony to show that Mrs. Jennings failed to pay. Under these circumstances the court had sufficient evidence to decide that Mrs. Jennings was entitled to a 1% undivided interest in the GOCE claims.
The appellants also challenge the court’s award of interests to three persons who performed work on the GOCE claims in exchange for undivided interests.
Arthur Boatright worked on the GOCE claims in 1966. The court found Mr. Boat-right owned a 4% interest in the claims for his work. The testimony was conflicting as to the amount and value of the work. It was apparent that Mr. Boatright was to receive an interest. The trial court heard the witnesses and resolved the conflict. There is adequate evidence to support the trial court’s finding. Another undivided interest was claimed by Mr. Loyal Harris who provided labor and equipment to GOCE over a period of years. Mr. Harris always understood that he would be paid for his services. The method of payment is not questioned. He knew that he would get a “percentage” of the GOCE venture. He thought he had to wait for the production of ore from the claims before being reimbursed “because there was [sic] no moneys.” Record Vol. IV, at 426. Appellants contend that the evidence before the court proved that Loyal Harris only agreed to do the work in exchange for payment from production. They argue that the court’s award of an undivided 6% interest in GOCE’s claims was error.
*1184The parties do not dispute the basic nature of their oral agreement. Mrs. Robertson planned to pay Mr. Harris for his work by giving him some type of interest in the mining claims. Appellants claim that only a percentage of production was to be used as payment. Mr. Harris was willing to do the work in exchange for a participatory role in the GOCE venture. The record reveals evidence of a skeletal partnership between Mrs. Robertson and Mr. Harris. They both agreed to contribute labor, equipment and effort in return for future profits. Mr. Harris gave the GOCE claims a large amount of labor and time ten years prior to this trial. The court determined that this effort earned Mr. Harris a share of the only asset the GOCE owners had to contribute — undivided interests in the 51 claims.
We conclude the court’s finding concerning Mr. Harris’ interest was tailored to fit the facts before the court and was reasonable under the circumstances and supported by the record.
The court determined Sam Roberts owned a 2% undivided interest and a V2% royalty interest in the GOCE claims. Mr. Roberts entered three documents into evidence as proof of his interests: an assignment of a 1% undivided interest; an assignment of a 1% undivided interest; and an assignment of a lk% royalty interest. The interests acquired are examined in chronological order according to the date of execution. Appellants argue that Sam Roberts failed to give the GOCE Corporation adequate consideration in return for the interests. The evidence showing the work performed was sufficient to support the court’s findings.
As stated herein the trial court is affirmed as to its conclusion that appellants’ notice protected all owners under
It is also affirmed as to the finding that Mrs. Jennings had a valid assignment of a one percent undivided interest in the claims as of July 1967. The interest was subject to forfeiture for nonpayment of a share of assessment work if notice was sent.
The trial court determined that Mr. Boat-right had a two percent interest in the claims. This is affirmed and it is again noted that this could also be subject to forfeiture.
We must reverse the trial court’s conclusion that the notices for contribution were not effective because not given by a co-owner. Since the notices of forfeiture were given by a “co-owner” under the Act, it is necessary on remand to determine whether the notices were received, and when, in order to decide whether they were effective and when effective, and to determine whether some appellees did assessment work themselves in 1980. The current ownership as a consequence of any automatic forfeitures can be so ascertained.
REVERSED and REMANDED.