Dean v. Omaha-Wyoming Oil Co.

Scott, Chief Justice. On May 5, 1906, the plaintiff in error, defendant below, filed his application in the U. S. Land Office at Evanston, Wyoming, for a patent to a mineral claim known as the Goodwill No. 2 oil placer mining claim, embracing the NEj4 of Section 12, Township 15 North, of Range 118 West, inclusive of improvements thereon. On July 3, 1906, and within the 60-day period of publication of notice of the application the defendant in error, plaintiff below, duly filed its protest and adverse claim to the land embraced in the application, whereupon further proceedings in such land office were stayed to await the determination of a court of competent jurisdiction of the right of possession to said described lands and premises, and thereupon this action was commenced. The plaintiff by its petition claims title subject only to the paramount title of the United States to the land in controversy by discovery of petroleum thereon and location thereof as the “Aboriginal” mining claim on April 1, 1901, by and through mesne conveyances from such locators and its predecessors in interest and by keeping up the annual assessment work of $100 thereon each year since such discovery and location. It also alleges that it and its lessee on June 28, 1906, made a further and additional discovery of petroleum on said claim and by virtue of this discovery notice was properly posted and an additional certificate of such location was on July 3, 1906, filed for record in the office of the County Clerk and Ex-Officio Register of Deeds of the County of Uinta, that being the county wherein the land is situated, as a further compliance with the mining laws of — 141 — the United States and of the State of Wyoming. The defendant by his answer puts the averments of the petition in issue in so far as they affect plaintiff’s right of possession and claims adversely the right of possession subject only to the paramount title of the United States by reason of the alleged location on October 23, 1903, by his predecessors in interest upon a discovery of petroleum thereon on or prior to said date, properly staking the ground and recording a certificate of location of the “Goodwill No. 2” mining claim, and the performance each year thereafter of the required annual assessment labor thereon. He also alleges that he and his predecessors' in interest on December 23, 1905, made a further and additional discovery of petroleum on the said “Goodwill N'o. 2” mining claim and by virtue of such additional discovery properly posted a notice thereof on the claim and on January 3, 1906, filed a further and additional certificate of such location in the office of the County Clerk and Ex-Officio Register of Deeds of Uinta County. The plaintiff replied putting in issue the new matter alleged in the answer. The case was tried to the court without a jury and the court found generally against the defendant and in favor of and gave judgment for the plaintiff, defendant in error here, awarding it the possession of the land in dispute and that it was entitled to a patent for the Aboriginal oil placer mining claim. Motion for a new trial was made, which the court overruled, and the defendant brings the case here on error. It is assigned as error that the finding and judgment are not supported by the evidence. It is conceded by the defendant in error in its brief that at the time of locating the Aboriginal claim, to-wit: on April 1, 1901, the land embraced therein was unoccupied public land of the United States and that no discovery of oil had been made on the claim, nor was any made until June 28, 1906, upon drilling to a depth of 468 feet. On July 2, 1906, the original notice of location of the Aboriginal claim was re-posted on the derrick over this well containing these additional words: “Further — 142 — and additional discovery of petroleum, made June 28, 1906, on claim above described, by the Chicago-Wyoming Oil Corporation, Lessee.” On July 3, 1906, an additional certificate of location, subscribed and sworn to by Carroll A. Dorn, setting forth that substantial posts were in position marking the boundary of said claim, giving the date of discovery, the name of the claim, the names pf the original locators, the date of location, that said locators are and were citizens of the United States, the number of acres and legal description of the claim, was filed and recorded in the office of the County Clerk. The defendant in error claimed the right of possession by mesne conveyances from the original locators of the Aboriginal claim and as such the right to file the additional or amended location certificate to the original location certificate of that claim. One of the essential requirements of a valid location of a mining claim- is that there shall be a discovery of mineral upon the ground. (Sec. 3474, Comp. Stat. ; Columbia Min. Co. v. Duchess Min. Co., 13 Wyo. 244, 79 Pac. 385; 27 Cyc. 555.) It is here conceded and the evidence shows that there was no discovery of petroleum upon the land in controversy tinder the Aboriginal location until June 28, 1906. The plaintiff in error claims prior discovery and location of the claim as the Goodwill No. 2 by Charles O. Richardson et al., his predecessors in interest. Pie contends that he made a valid discovery of oil on October 23, 1903, by drilling a well which we here designate as Well No. 1 on the boundary line between this claim and an adjoining claim on the south, such line bisecting the well so drilled, and making 'several discoveries of oil therein, one at the depth of 498 feet, which he selected as the discovery to validate •the claim for the southeast quarter of the section, while another and separate discovery of oil on October 23, 1903, in the same well at the depth of 560 feet was selected t<3 validate the claim here in question known as the “Goodwill No. 2,” recorded January 4, 1904. — 143 — The exact location of this well was in dispute. The evb dence of the County Surveyor, who made a survey of the property on December 2, 1905, after the well was sunk, tends to show that the quarter corner on the west boundary of Section 12 had been moved 22.6 feet south of where it had been originally established by the United States official survey, and that this well by such government survey was 11 feet south of and off of the northeast quarter of the section. The court’s finding was in favor of the plaintiff and this evidence supports such finding to the effect that such discovery was not made within the boundaries of the Goodwill No. 2 and upon the land here in controversy. A discovery for the purposes of the location of a mining claim must be within the limits of the claim sought to be located. (27 Cyc. 557.) That being the law, and the discovery not being on or within the limits of the claim, rendered the location based thereon void. (Nevada Sierra Oil Co. v. Miller (C. C.), 97 Fed. 681, 688.) The question of the rights which would obtain by reason of discovery on the dividing line between two mining claims or as to whether different discoveries 'in such well could be accredited to the different claims as here attempted to be done is not in view of the finding presented by this record. The plaintiff in error concedes that the defendant in error made discovery of oil on the Aboriginal oil placer mining location and within its limits on June 28, 1906, but claims a second prior discovery on December 23, 1905, in a well which he sunk within the area in dispute on the Goodwill No. 2 to the depth of 52 feet and discovery of oil therein. As to whether or not discovery of oil was made in this well was a question of fact’and the burden of proving it was upon the defendant (Costigan on Mining Law, 161 ; Sands v. Cruikshank, 15 S. D. 142, 87 N. W. 589), and while it may be said that discovery should chronologically precede the acts of location it may follow instead of preceding such acts, and will be held good as against all who — 144 — have not acquired intervening rights. (Costigan on Min. Law, p. 160; Beals v. Cone, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92; Ervin v. Perigo, 93 Fed. 608, 35 C. C. A. 482; Lindley on Mines, Sec. 330.) It is undisputed that the well was sunk about 25 'feet north of Well No. 1 heretofore referred to and on the land in controversy. It is contended by the plaintiff in error that the evidence is insufficient to support the finding adversely to his contention that the alleged discovery was sufficient to validate the location of the Goodwill No. 2. Youngburg, a witness for defendant, testified as follows: “Q. In drilling this 52-foot hole did you speak about finding a two-foot, shale ? “A. I don’t know whether it was shale or sand rock. I couldn’t.say which. “Q. At what depth was this? “A. About 38 feet. “Q. About what time in the afternoon was it you struck this ? “A. In the morning, about half-past eight. ” “Q. And when did you find oil ? “A. At four o’clock. “Q. And was this after you were through the shale? “A. Yes. “Q. And were you then drilling through the shale, did you say up to the time you found the oil? “A. Yes. “Q. And the oil was found beneath the shale? “A. Yes. “By the court: “Q. What quantity of oil did you find there? “A. We found the quantity that we could see on water. “Q. Did you find it in such quantity that you could bail some of it out? “A. No, we couldn’t exactly bail it. We bailed the water used for drilling and in that was mixed the oil. — 145 — “Q. Then the only evidence of oil you had in the 52-foot well was the oil you saw on the water that you bailed out of the well? “A. Yes, during the drilling. “Mr. Ausherman. “Q. Are you sure, Mr. Youngberg, that this was not the usual soapy substance that came from shale? “A. I think it was not. “Q. Do you know? “A. Well, I couldn’t state that.” This evidence did not establish the fact that there was oil found in this well, dr if found that it was sufficient in quantity to constitute a discovery or was more than a mere seepage. It was found at a depth of 41 feet after drilling through a three-foot layer of shale and the well was bored to a depth of 52 feet or 11 feet beyond where the alleged oil was found. This witness could not say that it was the usual soapy substance that came with the shale or not. Another of defendant’s witnesses testified practically the same and also that he was unable to swear whether it was oil or a soapy substance from shale that is found in that country. A number of other witnesses were sworn and testified for the defendant to the effect that it1 was oil. D- E. Nebergall, a witness for the plaintiff, testified that he had been engaged in drilling oil wells in different localities for 20 years, and that he had drilled wells in the vicinity of the NEj4 °f Section 12, Township 15 North, Range 118 West, and had finished drilling the Jager oil well for the owners in the SWJ4 of that section, and that from his experience and knowledge of that field the formation at that locality was not such as to disclose a finding of oil of any kind at a depth of from 60 to 100 feet and that there was no finding of oil made in well No. 1 referred to at the depth of 50 or 60 feet, as had been testified to, and that from his knowledge gained from drilling in that vicinity the first oil sand was and is at a depth of over 400 feet. That in the drilling of the Jager well on the SWJ4 of said section he had taken — 146 — charge after it had been sunk 1,000 feet, and that he bailed the first oil that ever came out of that well; that the crew before he took charge got what they thought to be oil, but it was shale oil, which is not oil and which is “an indication that would sour a man to go ahead and look further.” One Petrie was sworn as a witness on behalf of the plaintiff and testified that he had followed the oil business for 17 or 18 years and for the last three years in the Spring Valley oil field, in which is situated the property here in controversy. He testified from his éxperience that the formation he found there contained no oil at a depth less than 60 to 100 feet. Being asked at what depth it was found, he answered: “I never found oil under 468 feet — that is as close to the top, but they had shale — a shale grease, which looks quite a bit like oil. Q. And did you find such conditions in the Spring Valley field? Ans. Every hole I have worked on there was shale. People who would come in the rig would say, ‘You have struck oil.’ We would say, ‘Not in paying quantities; we will still go on down.’ Q. And it would be nothing but shale grease? Ans, That is all. Q. Is this shale-grease an indication of oil? Ans. No, sir.” In Nevada Sierra Oil Company v. Home Oil Company (C.C.), 98 Fed. 673, a discovery of oil was in question and the court said: “Mere indications, however strong, are not, in my opinion, sufficient to answer the requirements of the statute, which requires, as one of the essential conditions to the making of a valid location of unappropriated public land of the United States under the mining laws, a discovery of mineral within the limits of the claim. Indications of the existence of a thing is not the thing itself.”- It will be observed in the case here that there was a substantial conflict in the evidence as to the character of the substance found in the well. On the one side it was claimed to be oil, and on the other that it was not oil, but a substance known and denominated as shale grease. Upon this state of the evidence we can not say that the court erred in finding against the defendant on the issue of discovery. The question of — 147 — the sufficiency of this discovery was for the trial court and there was sufficient evidence to support the finding of the court. This we think disposes of any claim of the defendant to affirmative relief establishing in him the right of possession to the land in dispute. He had acquired no intervening right which would prevent the plaintiff from filing an amended or additional certificate to the original location certificate of the Aboriginal mining claim. “The original certificate and the amendment must be construed together, and if sufficient when so construed the location record will be valid, although neither standing alone would be sufficient.” (27 Cyc. 575; Duncan v. Fulton, 15 Colo. App. 140, 61 Pac. 244.) It is provided by Sec. 3459, Comp. Stat. 1910, that “Whenever it shall be apprehended by the locator, or his assigns, of any mining claims or property heretofore or hereafter located, that his or their original location certificate was defective, erroneous, or that the requirements of the law had not been complied with before the filing thereof, or shall be desirous of changing the surface boundaries of his or their original claim or location, or of taking in any part of an overlapping claim or location which has been abandoned, or in case the original certificate was made prior to March 6, 1888, and he or they shall be desirous of securing the benefit of this law, such locator or locators, or his or their assigns, may file an additional location certificate in compliance with and subject to the provisions of this chapter; Provided, however, That such relocation shall not infringe upon the rights of others existing at the time of such re-location, and that no such relocation, or other record thereof, shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under any previous location.” (Slothower v. Hunter, 15 Wyo. 189, 88 Pac. 36.) The plaintiff succeeded to the interest of the original locators and upon the facts were privileged under this section upon making discovery on June 28, 1906, to amend or file an additional certificate to show the date of discovery — 148 — and having done so secured the right of possession as such amendment did not, as already stated, infringe on the rights of the defendant. (27 Cyc. 550, 575; Sec. 354, 1 Snyder on Mines.) It is urged that the amendment was not preceded by re-staking the claim, nor giving it a name. This was not necessary. (Sec. 399, Snyder on Mines.) There is evidence in the record tending to show that the claim when originally located was properly staked and named, and otherwise properly located, except that there was no discovery, and when discovery was afterward made an addition to the original certificate of location was filed. The original certificate gave the name and taking the original and additional certificate together the date of discovery' was given and the claim was properly identified by name, staking, posting of notice and referred to by legal sub-division. It is here urged that there is or was no proof of the citizenship of the original locators of the “Aboriginal” through which by mesne conveyances the company coupled with its discovery on June 28, 1906, claimed title, and that for that reason there is a failure of proof for which a new trial should have been granted. If this contention be correct it would not upon the facts entitle the defendant or applicant for the patent to affirmative relief. (Sherlock v. Leighton, 9 Wyo. 297, 309, 63 Pac. 580, 934.) In that case this court said: “Proof of citizenship in an adverse suit is required only to enable a party to recover judgment in his own favor.” * * * “The absence of such proof may prevent a recovery by the one party, but it does not operate to authorize a judgment, for that reason alone, in favor of his adversary.” Upon the trial of the case there was admitted in evidence without objection the original and amendment or additional location certificate of the Aboriginal oil placer mining claim, and which latter was based upon the discovery made June 28, 1906. The first or original location certificate is recited in the additional certificate and gives the individual names — 149 — of the locators followed by these words, “each being a citizen of the United States, over the age of twenty-one years.” To this certificate is attached the following affidavit, viz: “The State of Wyoming, County of Uinta, ss. Carroll A. Dorn being duly sworn deposes and says that he has read the above and foregoing certificate of location; that he knows the contents thereof and that the same are true.” (Signed) Carroll A. Dorn, and followed by the certificate of the notary before whom the oath was taken. We know of no statute requiring such affidavit to give validity or to entitle an original certificate or an amendment or addition thereto to be recorded. We are, however, of the opinion that the recorded certificate of a location is prima facie proof ®f the facts therein contained in an adverse proceeding as well as proof of the compliance of the law in making the record and the date thereof. (Sec. 227, Lindley on Mines.) When citizenship is in issue it should be proven as any other fact in the case, id., and may be established by the affidavit of the party or a duly authorized agent. (Sec. 2321, R. S., U. S.; U. S. Comp. St. 1901, p. 1425.) The recital in the certificate to the effect that the original locators were each citizens of the United States and over the age of twenty-one years coupled with other facts might raise a presumption of such citizenship. The Supreme Court of Arizona said in Jantzen v. Arizona C. Co., 3 Ariz. 6, 7, 20 Pac. 93, 94: “It will be presumed that a man being a resident of the United States, and who has made a mining location, was a citizen of the United States, * * * when it appears that he recorded near the time a location reciting these facts. Such evidence will make out a prima facie case.” In the case here Dorn’s affidavit to the additional certificate, supra, though not required by the statute, was to the effect that the original locators of the Aboriginal oil placer claim were each citizens of the United States. He was plaintiff’s agent and his affidavit was made in its behalf and introduced and received in evidence without objection in the — 150 — trial of the case. Such affidavit in connection with the original and additional certificate was the only evidence on this subject and being unobjected to on the specific ground here sought to be raised was prima facie proof of the citizenship of such locators. Further than this no objection was made in the court below that these locators were not citizens or that the fact of their citizenship was not shown. This court held in Sherlock v. Leighton, supra, that such objection could not be raised in the appellate court for the first time, and cited O’Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. 421, 29 L. Ed. 669. The language of the late Justice Field in delivering the opinion of the court in that case is pertinent. “It is true that the mineral lands of the United States are open to exploration and purchase only by citizens of the United States, or by those who have declared their intention to become such; and had the objection been taken in the court below that such citizenship of the plaintiffs had not been shown, it might, if not obviated, have been fatal. There is, however, nothing in the record to show that it was raised below. Proof of citizenship; in proceedings of this kind, may consist, in the case of an individual, of his own affidavit thereof, and in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made upon his own knowledge, or upon information and belief. (Rev. Stat., Sec. 2321; U. S. Comp. St. 1901, p. 1425.) The objection to the want of proof of that fact, if taken below, might have been met at once, if, indeed, the plaintiffs are citizens. The rule is general that an objection which might be thus met must be taken at the trial or it will be considered as waived, except as to matters going to the jurisdiction of the court. The parties to this controversy own adjoining claims, and it is probable that the citizenship of each was known to the other, and, therefore, no proof on the subject was required. Be that, however, as it may, the objection, in actions of this kind, cannot be taken in this court for the first time.” The case here seems to have been tried upon — 151 — the theory that the locators were citizens of the United States and if that question was not put in issue and tried in the lower court it cannot be raised here for the first time. By failure to raise the question at the proper time and place it will be deemed to have been waived by • the parties. Other questions have been presented on the briefs, but in view of the conclusions reached upon the questions herein discussed it becomes unnecessary to consider them. We are of the opinion that upon this record the finding and judgment of the trial court is supported by the evidence and that there is no prejudicial error shown. The judgment will be affirmed. Affirmed. Potter and Beard, JJ., concur.