                                  No. 12115

          I N T E SUPREME C U T O THE STATE O M N A A
               H           OR F              F OTN

                                      1972



LAWRENCE J. M C R H e t a l . ,
             cATY

                            P l a i n t i f f s and Respondents,

          -vs   -
BUD MORRIS,

                            Defendant and Appellant,



Appeal from:        District Court of t h e Fourth J u d i c i a l District,
                    Honorable E m e t Glore, Judge presiding.

Counsel of Record:

      For Appellant :

                William Dee Morris argued, Helena, Montana.

      For Respondent :

                Alex C , Morrison argued, P l a i n s , Montana,



                                                Submitted:         A p r i l 24, 1972

                                                  Decided:            9   ~CJE
Filed :    lftA'?! 9 1912
                     a
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

     This is an appeal from a verdict and judgment resulting from
a jury trial in the fourth judicial district, county of Sanders,
the Hon. Emmett Glore, district judge presiding.
     The facts giving rise to this action show that the Old West
still lives.    The complaint filed by plaintiffs on September
23, 1970, charges defendant with trespass on an unpatented mining
claim located in Sanders County.    The prayer asked for a restrain-
ing order, an order to show cause why the restraining order
should not be made permanent, and $5,000 exemplary damages. Judge
Jack L. Gzeen on September 23, 1970, issued the temporary re-
straining order and set October 13, 1970, to hear the order to
show cause why a permanent injunction should not issue.
     On    September 30, 1970, counsel for all litigants entered
into a stipulation that allowed defendant to remove a D-7 Cat
from the mining claim.
     Counsel for defendant filed an answer to plaintiffs' com-
plaint and a counterclaim on October 13, 1970, asking to have
the temporary injunction dissolved and for certain specified
damages.    By further stipulation of counsel the show cause hearing
was set aside, and after further pleadings the case went to trial
on June 14, 1971.
     Testimony at the trial indicated that early in the spring
of 1968 plaintiffs Stobie, Rogers and Stonebrook flew over and
noted a tunnel on a mining claim located in the Swamp Creek area
near Plains, Montana.    Several weeks later, in early March, the
three plaintiffs hiked into the area and posted two notices of
location.     Prior to that they had talked with plaintiff Lawrence
J. McCarthy, a graduate engineer from the Montana School of Mines
and brother-in-law of Stobie, who made out their notices of
location and from McCarthy they learned what was necessary to
do for the location.   One of the notices was put in a tobacco
can and nailed to a tree just left of the adit (the entrance to
the mine tunnel),   The date of these activities was March 3, 1968,
While at the mine they mucked out the tunnel, crawled in and
explored it and took some sample ore.   These samples they turned
over to McCarthy for testing.
     Some three weeks later, Stobie, Rogers and Stonebrook re-
turned to the mine site with tools, tape and equipment.   They laid
out their claim by blazing the corners, taping the corner trees
with forest service marking tape and making the measurements
necessary to file their location at the Sanders County courthouse.
They named the claim 5 D'S and an M, the initials of the children
of Stobie and Stonebrook.
     The claim was filed in the records of the Sanders County
clerk and recorder on May 3, 1968, in Volume 22 of Mining Locations,
at page 155.   It was cross-filed in another volume under the names
of the various plaintiffs.   Testimony revealed that in the years
1969 and 1970, assessment work was done on the claim and recorded
at the office of the county clerk and recorder of Sanders County.
     In the late summer of 1969, several of plaintiffs were at
the tunnel site and noticed that someone had pulled the tobacco
can (containing their notice of location) off the tree and thrown
it on the ground.   Plaintiff Stobie put the notice back in the
can and put the can on a ledge at the face of the portal to the
mine,
     In the early spring of 1970, when Stobie returned to the
claim, he found a glass jar where he had left the tobacco can and
in the jar another notice dated several days prior to his arrival,
June 17, 1970. The tobacco can was not located at the tunnel site.
Upon returning from the mine site, Stobie notified all plaintiffs
of what he termed the "claim jumping".    Subsequently plaintiffs
returned to the mine site and posted "No Trespassing" signs at
the adit and on all four comers of the claim.
        In August 1970, when plaintiffs went to the mine to do their
annual assessment work, they found their signs down and posted at
the adit was a sign stating I 1No Trespassing, Keep Out".   On   the
reverse of that sign it said: "Five hundred dollars reward, dead
or alive, for conviction of persons destroying property, Lost
Thumb, Incorporated".
        Plaintiff McCarthy on checking the location notice learned
that defendant Bud Morris was the locator and several weeks
after learning this he ran into Morris at one of the local thirst
quenching establishments in Plains.    He informed Morris of the
previous location of the 5 D's and an M claim.    Defendant proved
to be less than friendly, so no further discussion took place
then.
        In mid-September 1970 while flying over the claim to check
it, plaintiffs saw a D-7 Cat at the adit and noted that it had
dozed up a considerable area around the adit, to say nothing of
trenches cut by the dozer.    Plaintiffs immediately hired counsel
who filed the complaint, heretofore mentioned, on September 23,
1970.    Either on September 23 or 24 (the exact day being in con-
flict), three of plaintiffs went back to the mine, drained the
fuel out of the D-7 Cat and dumped a 50 gallon barrel of fuel
out upon the ground.    That was sufficient to stop the D-7 Cat
and several nights later the engine block froze due to the fact
no antifreeze was in the radiator or it was insufficient to with-
stand a cold fall night above 5,000 feet altitude.    The D-7 Cat
still rests at the mine site.
     The above enumerated facts are what the jury heard from
plaintiffs and their witnesses.    Defendant   orris' story is en-
tirely different.
       Defendant, Bbd Morris, t e s t i f i e d he learned about the old
mine tunnel from one Larry Christensen on June 1 7 , 1970.                       Several
days l a t e r Christensen took him t o t h e mine s i t e where he posted
a n o t i c e a t the a d i t coverning a number of claims.             The d a t e on
each c e r t i f i c a t e f i l e d was June 2 4, 1970.    During cross-examina-
t i o n of defendant i t was brought out t h a t the n o t i c e a t t h e mine
named i t e i t h e r t h e R J M claim o r R and M, but the f i l e d c e r t i f i -
c a t e of location n o t i c e named i t t h e "Lost Thumb".           Defendant
could n o t explain why t h e W o r t h e R and M on t h e June 1 7 n o t i c e ,
                               M
and t h e "Lost Thumb" on the c e r t i f i c a t e , but he t e s t i f i e d t h a t
i n t h e week between t h e location and the f i l i n g he had a thumb
t o r n off i n an accident and t h a t i s why he c a l l e d the claim the
"Lost Thumb".
      Defendant admits t h a t i n l a t e June o r e a r l y J u l y p l a i n t i f f
McCarthy accosted him i n a bar and informed him t h a t McCarthy
and others had located t h e claim i n 1968 and had ordered him o f f
t h e claim, however defendant considered h i s location t o be p r i o r
and v a l i d and continued during the summer t o construct a road
i n t o t h e claim and develop it.         I n a l l , he alleged he spent
approximately $13,000 p r i o r t o the r e s t r a i n i n g order of September
23, 1970.
      I n regard t o the mine s i t e a t the time he went t h e r e with
Christensen i n June 1970, defendant t e s t i f i e d t h a t no work had
been done on i t r e c e n t l y ; the opening of the tunnel was p r e t t y
well caved i n and t h e tunnel looked a s though some old miner had
j u s t walked away from i t .       H denied seeing p l a i n t i f f s ' n o t i c e ,
                                      e
previously mentioned a s having been put i n a tobacco can and
n a i l e d t o a t r e e near t h e entrance, but he t e s t i f i e d t h a t he had
put h i s n o t i c e of l o c a t i o n i n a tobacco can, had turned i t up-
s i d e down, and n a i l e d i t t o a crevice of rock.          He s a i d t h a t
Christensen had found, j u s t i n s i d e the p i t , a l i t t l e j a r on a
ledge.    That the content of the j a r was a claim n o t i c e t h a t was
damp; the name of the locator was Stobie; and the date on it
looked like 1960.     Because of his interpretation of that date
and the lack of recent work at the mine site, he claimed the
mine.
        In addition, defendant testified that when he filed his
claims on June 14, 1970, he searched the records at the court-
house but did not look under either the name of Stobie or any
of the named plaintiffs, or under the name location of plaintiffsf
5 D'S and an M.
        In spite of finding the above mentioned location notice
and warnings given him during late June or early July, 1970,
by McCarthy, defendant proceeded throughout the summer to prepare
and develop the mine.    He obtained from the head ranger of the
Forest Service a permit to construct a road into the mine and
in so doing he agreed to the federal government's requirements
of road construction. He posted a bond with the Forest Service
and made an agreement with it on the timber that was to be cut
and used.    All of this ended on September 23, 1970, when the
restraining order was issued and when plaintiffs drained the fuel
out of the D-7 Cat which was several miles back in a very inacces-
sible area.    Defendant alleges that due to lack of fuel he was
unable to move the Cat and cold temperatures caused the block
to freeze resulting in several thousands of dollars damages.
     All of the above testimony of both plaintiffs and defendant
was before the jury and it found for the plaintiffs:
     "1. That the mining claim 5 D's and M is a valid
     claim and is the sole property of the plaintiffs
     herein.
        "2. We assess actual damages against the defendant
        Bud Morris and in favor of the plaintiffs in the
        amount of $ none.
        "3. We assess exemplary damages against the de-
        fendant, Bud Morris, and in favor of the plaintiffs
        in the amount of $ none. II
        Eight principal issues with sub-issues were raised on
appeal but we summarize them into three:
        1, The proper location of mining claims: The continued
completion of acts to retain a possessory interest in the claim
to plaintiffs; proper and legal notice, actual and constructive;
all required in order to support plaintiffs' possessory interest.
        2.     Same as Issue 1 for the defendant with the further but
detailed application of federal law on "multiple use".
        3, Damages---to either party.      Plaintiffs claimed no actual
damages, only exemplary and with no valid trespass action, no
damages, Damages to defendant by reason of plaintiffs ' unlawful
and destructive act.       Defendant should have been awarded damages
regardless of plaintiffs' purported possessory interest.
        Number 1 and 2 above concern themselves with the category of
issues arising out of the location and ownership of the mine.        We
find no merit to these issues for they are entirely fact questions
submitted to a properly instructed jury which found for plain-
tiffs on substantial evidence,
        Defendant relies upon three cases: Ringling v. Mahurin, 59
Mont. 38, 197 P, 829; Robinson v, Laffon, 131 Mont. 446, 311 P.2d
768; and Harvey v. Havener, 135 Mont. 437, 340 P.2d 1084. We
have carefully considered the holdings in these cases in light
of the facts presented in the instant case and find them inapplic-
able.        In fact, two of the cases on the facts presented here
support the position of plaintiffs.
        Here, defendant not only had actual and constructive notice
but he failed to properly search the records before proceeding
to spend considerable funds. Under such circumstances he went
ahead and located claims and he cannot now argue that he had no
notice of the prior claim of plaintiffs, His allegation that the
5 D's and an M claim went back to 1960 did not convince the jury
for it heard the testimony of Stobie to the effect that in 1960
there were only four children with names beginning with "D"
and that therefore they could not have so named the claim at
that date.   The jury found that plaintiffs had such possessory
interest to the surface area as to support an action in trespass.
     Defendant next attacks the legality of the certificat6,-
                                                            of
location of plaintiffs, its recording, the fact that it does
not set forth its location in Sanders County, and that the claim
does not have some natural or permanent monument to identify it,
We find no merit in this attack.    The certificate of location
was in the hands of defendant when he first found it at the mine
site and such actual notice cures any defect of title, assuming
that the certificate should have referred to some natural object
or monument, Harvey v. Havener, 135 Mont. 437, 340 P,2d 1084.
The federal law concerning "multiple use" has no application
to the facts present in this cause of action and need not be
discussed.
     Neither do we find merit in defendant's allegation concerning
the annual assessment work.     I is not how much is done annually
                                 t
but that it is done annually.    Section 50-704, R,C.M. 1947, sets
forth the requirements for annual assessment work and from the
evidence introduced here the jury properly found that the statute
had been complied with by plaintiffs, If defendant had properly
searched the records of Sanders County he would have found
plaintiffs' affidavit of performance of annual work.    Section
50-704, R.C.M.   1947, notes that such affidavits are prima facie
evidence of the facts stated therein.
     Woven into the issues raised by defendant (summarized as
Issue 3 herein), is the question of damages done to the D-7 Cat
and his failure to recover such damages.    Again, this was a jury
question.    It found defendant had bulldozed his way onto plain-
tiffs' claim and done such damage that it was necessary to obtain
a restraining order to stop him.    Counsel for both parties met and
and an agreement was made to allow defendant to remove the D-7
Cat from plaintiff's claim, but he did not do so.    He failed
to mitigate the damages and in fact contributed to the damages
by failing to have antifreeze in the radiator at a time of the
year when it was necessary. This, plus the fact that plaintiffs
had drained the fuel from the D-7 Cat, was before the jury and
it found no damages due defendant.
      We have examined the court's instructions and find that when
read together the jury was fully and properly instructed. De-
fendant's     issues concerning various proposed instructions are
without merit.
      The judgment is affirmed.




---d---------------------------



     Associate Justices.
 J u s t i c e s Castles and Haswell s p e c i a l l y concurring:

      W concur i n the r e s u l t s reached i n t h e majority
       e
opinion, but not i n a l l t h a t i s s a i d .   W would simply r u l e
                                                    e
t h a t t h e appellant has not sustained h i s burden of showing
any e r r o r i n the proceedings i n t h e d i s t r i c t court.




                                         Associate J u s t i c e s
