(595 P.2d 269)
No. 77-880Colorado Court of Appeals.
Decided February 8, 1979. Rehearing denied March 15, 1979.
Plaintiff appealed from a judgment which quieted title in defendants to certain unpatented mining claims.
Affirmed
1. MINES AND MINERALS — Assessment Work — Part — “General System” of Improvement — “System” — “Scheme” — Synonymous — Jury Instruction — “General Scheme” — Proper. Although it is required that assessment work performed outside a mining claim must be part of a “general system” of improvement, the words “system” and “scheme” are essentially synonymous, and thus, in quiet title action, jury instruction on assessment work issue which used phrase “general scheme” was correct.
2. Quiet Title Action — Unpatented Mining Claims — Second Locator — Must Establish — First Locator — Failed to Perform — Annual Assessment Work — Preponderance of the Evidence. In a suit to quiet title to unpatented mining claims, the second locator must prove that the first locator failed to perform the annual work by a preponderance of the evidence only; clear and convincing evidence is not required.
Appeal from the District Court of the County of Summit, Honorable Vasco G. Seavy, Jr., Judge.
Inman, Flynn Coffee, P.C., Peter R. Bornstein, John J. Flynn, Jr., for plaintiff-appellant.
Moran, Reidy Voorhees, John R. Moran, Jr., John W. Coughlin, for defendants-appellees.
Division I.
Opinion by CHIEF JUDGE SILVERSTEIN.
Page 170
Plaintiff appeals from a judgment which quieted title in defendants to unpatented mining claims. We affirm.
Plaintiff had located the claims in question in 1948 and 1949 and had done assessment work thereon until September 1, 1972. During 1974 and 1975 defendants located and recorded unpatented mining claims which covered all or portions of plaintiff’s claims. Defendants based their right to the claims on the assertion that plaintiff had not done assessment work as required by 30 U.S.C. § 28 (1971) from September 1, 1972, through September 1, 1974. The case was tried before a jury. The two issues on appeal are the correctness of instructions to the jury and the quantum of proof necessary to establish that the plaintiff had not done the assessment work.
The Instructions
The trial court instructed the jury that the law did not “prescribe the particular kind of labor which is to be performed, nor in what it shall consist, nor the manner in which it shall be performed.” And, the next instruction stated that,
“1. Work can be performed on one claim for the benefit of several when there is a community of interest in all the claims for the benefit of which such work is done.
2. Annual labor may be performed outside a mining claim or claims where it is shown that such labor is intended for the annual assessment upon such claim or claims, and is of a character inuring to the benefit and manifestly tending to the development of the claim or claims and that such work is a part of the general scheme of improvement.”
[1] Plaintiff asserts that the requirement that the work be “a part of the general scheme of improvement” is contrary to the law as stated i Jackson v. Roby, 109 U.S. 440, 3 S.Ct. 301, 27 L.Ed. 990 (1883) and Walton v. Wild Goose Mining Trading Co., 123 F. 209 (9th Cir. 1903). Jackson v. Roby states that the work must be part of a “general system,” which plaintiff asserts is not the same as a “general scheme.” However, “system” and “scheme” are synonymous. Webster’s New Twentieth Century Dictionary(2d ed. 1975); American Heritage Dictionary (1969). Further, in Parker v. Belle Fourche Bentonite Products Co., 64 Wyo. 269, 189 P.2d 882 (1948), it was held that work performed outside the boundaries of a claim must be part of a general scheme. See 2 C. Lindley, American Law Relating to Mines Mineral Lands § 630 (3d ed. 1914) and 2 American Law of Mining
§ 7.16 (1978).
We also find no merit to plaintiff’s claim that the two instructions quoted above are inconsistent. The first applies to work done within the boundaries of a claim, while the second applies to work outside the boundaries, and thus both were properly given.
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The Quantum of Proof
The parties stipulated that defendants had the burden of proof to establish that plaintiff had not done the necessary assessment work. In the trial court, and here, plaintiff has asserted that defendants’ burden could only be met by clear and convincing evidence. However, the trial court, relying on § 13-25-127, C.R.S. 1973, determined that a preponderance of the evidence was all that was required, and so instructed the jury. We agree with the trial court.
The basis of plaintiff’s argument is that by applying the Colorado statute, the court has created a conflict with the national policy regarding the burden of proof on this issue, as set out in Hammer v. Garfield Mining Milling Co., 130 U.S. 291, 9 S.Ct. 548, 32 L.Ed. 964
(1889). That case held that depriving a claimant of his rights to a mining claim for failure to perform annual assessment work constituted a forfeiture, which had to be proven by clear and convincing evidence.
In order to determine whether federal or state law will control an issue, the court first must determine whether Congress has preempted the area by expressly or impliedly occupying “the entire field.” If not, the court then must decide whether the state law, if followed, would so significantly “conflict” or “interfere” with the operation of the federal scheme as to make the state law unenforceable. Hagood v. Heckers, 182 Colo. 337, 513 P.2d 208 (1973). See Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966).
Here, plaintiff agrees that there is no total federal preemption of the mining law field. Plaintiff argues, however, that the scheme of mining laws adopted by Congress indicates a strong federal policy encouraging mineral development, and part of this policy has been statutorily to declare that assessment work be done or the claim be forfeited. Plaintiff states that if § 13-25-127, C.R.S. 1973, is applied, forfeiture will result more often in Colorado than in other states, and that this would be contrary to the federal scheme aimed at maintaining consistency among the courts of the states as to the outcome of quiet-title suits.
Although the right to mine claims located on federal land is derived from an Act of Congress, 30 U.S.C. § 22
(1971), which requires annual assessment work, 30 U.S.C. § 28 (1971), there is no provision made as to the quantum of proof necessary to prevail in a dispute over title to those claims. Locators’ rights of possession and enjoyment are dealt with in 30 U.S.C. § 26 (1971), which provides that they may have the right of possession and enjoyment,”so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title . . . .”
In light of the above statutes, the application of state law regarding burden of proof is not in conflict with the national policy for mining claims. The statutes cover what Congress has chosen to legislate; the
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remainder is governed by state law as long as it is not in conflict with federal laws. As stated in Upton v. Santa Rita Mining Co., 14 N.M. 96, 89 P. 275 (1907): “The several states have a right to define the nature, degree, and effect of evidence within reasonable lines . . . .” We believe the Colorado statute is within this guideline. See 2 C. Lindley, supra
§ 636 (3d ed. 1914).
(1900), the court upheld an instruction which provided that the burden of proof was on the relocator to prove that the original locator of the claim had not done the required annual labor, and that such burden was “by a fair preponderance of the evidence.” A similar conclusion was reached i Johnson v. Young, 18 Colo. 625, 34 P. 173 (1893).
Judgment affirmed.
JUDGE COYTE and JUDGE STERNBERG concur.