No. 14925 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE ANACONDA COMPANY, 

a corporation, 

Plaintiff and Respondent, 

MORTON K. WHITTAKER, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Alexander and Baucus, Great Falls, Montana 

For Respondent: 

Anderson, Brown, Gerbase, Cebull and Jones, Billings, 

Montana 

P. J. Brophy, Denver, Colorado 

Submitted on briefs: April 3, 1980 

Decided: MAY I 2 198$ 

4 c, %.::GJg Filed: , . 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

This is an action involving the conflicting mining claims 

of Morton K. Whittaker and the Anaconda Company. Whittaker 

appeals from a judgment entered in the District Court, Sixth 

Judicial District, Sweet Grass County, in favor of Anaconda. 

Under the judgment, Anaconda is entitled to the possession and 

enjoyment of the area covered by its Eve 62 and Eve 69 mining 

claims which conflict with Whittaker's Pine mining claim. 

Whittaker also appeals from a denial of his motion for a judgment notwithstanding the verdict. 

Whittaker located the Pine claim on October 1, 1950. 

Anaconda, on the other hand, is a successor in interest to the 

Eve 62 and Eve 69 claims which were located on June 10, 1968, 

by R. Davidson Piper. Piper was employed by Anaconda to 

supervise engineering crews in locating and staking approximately 

79 mining claims generally known as the Eve group claims. These 

claims were located in an area about four to five miles in 

length beginning on the Boulder River and moving up the slope 

of Chrome Mountain. Piper signed the certificates of 

location for Eve 62 and Eve 69 verifying he was the locator of 

the two mining claims and had complied with the legal requirements 

for locating and recording mining claims. Section 50-701, et 

seq., R.C.M. 1947. Piper's certificates were based upon information provided to him by the engineers and geologists of Anaconda. 

Under an agreement with Anaconda, Piper was to transfer to 

Anaconda any mining claim Piper located in Montana. 

In June 1976, Whittaker applied to the Bureau of Land 

Management for a patent to the Pine claim. Anaconda filed an 

adverse claim with that agency and brought this cause to determine 
its right of possession to the area covered by its Eve 62 

and Eve 69 mining claims. 

The jury trial of this cause began on February 26, 

1979. Following Anaconda's case-in-chief, Whittaker moved 

for a directed verdict on the grounds that Anaconda had 

failed to establish a valid mining location for Eve 62 and 

Eve 69 and therefore, lacked standing to challenge Whittaker's 

patent application. The motion was taken under advisement, 

and Whittaker was required to present evidence regarding the 

validity of the Pine claim. 

The cause was submitted to the jury on special interrogatorie

and the jury returned a verdict in favor of Anaconda. Under 

the verdict, the jury found Whittaker had not abandoned the 

Pine claim but had subjected the claim to forfeiture. The jury 

further found that Whittaker had in fact forfeited the Pine 

claim when Anaconda validly located the Eve 62 and Eve 69 

claims in 1968. Accordingly, judgment was entered in favor of 

Anaconda. 

Whittaker moved for a judgment notwithstanding the verdict, 

alleging the same grounds as were alleged for his motion for a 

directed verdict. The District Court did not rule on me 

motion, resulting in the motion being deemed denied. Rules 

50 (b) and 59 (dl, M.R.Civ.P. Whittaker now appeals. 

The sole issue upon appeal is whether sufficient evidence 

supports the jury's verdict that Anaconda validly located the 

Eve 62 and Eve 69 mining claims. Having carefully examined 

the briefs of the parties and the record in this cause, we 

hold there is insufficient evidence to support the jury verdict. 

At the outset, we note that the validity of mining locations 

must be judged by the law in effect at the time of the attempted 

location. Therefore, we judge the validity of Anaconda's 

attempts to locate its Eve 62 and Eve 69 mining claims under 

section 50-701, R.C.M. 1947, as it existed prior to the 1971 

amendments. 

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Our function in reviewing the issue presented is to 

determine whether substantial credible evidence in the 

record supports the jury's verdict. We must view the evidence 

in a light most favorable to Anaconda, the prevailing party 

below, and where the record presents conflicting evidence, 

resolved by the jury, this Court is precluded from disturbing 

the verdict.. Strong v. Williams (1969), 154 Mont. 65, 68-69, 

460 P.2d 90, 92. Here, however, there is insufficient evidence 

to support the jury's findings that Anaconda validly (1) 

discovered a vein, lode, or ledge of rock in place bearing 

valuable mineral dep~sits or (2) posted a notice of location at 

the point of discovery. Accordingly, the judgment entered by 

the District Court must be reversed. Section 50-701, R.C.M. 1947. 

An attempted location of a mining claim fails unless there 

is substantial compliance with the statutory requirements. 

Ferris v. McNally (1912), 45 Mont. 20, 25, 121 P. 889, 892. 

Moreover, the acts required by the statute are independent of 

each other, and all must be performed before a valid location 

exists. The last act to be performed does not relate back 

to the first act performed. Thornton v. Kaufman (1910), 40 

Mont. 282, 286, 106 P. 361, 362. 

The actual discovery of a vein, lode, or ledge of rock 

in place bearing a valuable mineral deposit is a condition 

precedent to a grant from the government to the exclusive 

possession and enjoyment of the ground located. Upton v. 

Larkin (1885), 5 Mont. 600, 603, 6 P. 66, 68. There is 

insufficient evidence in the record to support a finding that 

such an actual discovery was made on the Eve 62 and Eve 69 

claims. Richard N. Miller, Anaconda's project geologist for 

the Stillwater complex, testified that in his opinion the 

legal requirements for a valid discovery had been met. However, 

on cross-examination, Miller admitted that no one, to his 
knowledge, had actually found minerals in place on the Eve 

62 and Eve 69 claims. The testimony of the other Anaconda 

witnesses was to the same effect. 

According to Anaconda, the type of discovery necessary 

in a controversy between rival locators has been treated much 

more liberally than that required in a controversy involving 

the federal government, and therefore, an attempted discovery 

based on geological studies for potential mineralization is 

valid. The liberality, however, which exists in a contest 

between rival claimants is in the consideration and application 

of the evidence admitted at trial and does not involve a 

liberal construction of the statutory requirements. 1 American 

Law Of Mining, S4.46, at 650-51. 

There also is not sufficient evidence in the record to 

support the jury's finding that Anaconda posted a notice of 

location at the point of discovery on the Eve 62 and Eve 69 

claims. Butte Northern Copper Co. v. Radmilovich (1909), 39 

Mont. 157, 163, 101 P. 1078, 1080. Granted, it may often 

times be impossible to post notice squarely on the point of 

discovery. Yet, the record here shows that notice was not 

posted near any discovery point. Dean E. Yongue, the surveyor 

who staked out the Eve group claims, testified regarding the 

method used to stake out those claims. According to Yongue, 

a U.S. geological map was used to stake out the corners of 

each claim, and once this was accomplished, previously prepared 

notices of location were then posted in the center of each 

claim, generally 50 feet from one end line and 300 feet from 

the corners. Yongue testified further that he never saw any 

mineralization at the point where the notice of location 

was posted. The testimony of Anaconda's other witnesses 

was to the same effect. 

Having found no evidence whatsoever in the record to support 

the jury's findings that Anaconda validly (I) Ciscovered a vein, 

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lode or ledge of rock in place bearing a valuable mineral 

deposit or (2) posted a notice of location at or near the 

point of discovery, the judgment of the District Court is 

reversed. The cause is remanded to the District Court with 

directions to vacate the judgment entered in favor of Anaconda. 

We Concur: 

chief Justice