### No. 84-556 INTHE SUPREME COURT OF THE STATEOF I\IONTANA 1985

CATHERINE O'CONNOR, individually and as Personal Representative of the Estate of Alfred Fisher, Deceased; RALPH FISHER, et al., Plaintiffsand Respondents,

JOHN F. WILKE,CARL L. 

### CARAKER, and ROBERT A. 

### WILKE, Defendantsand Appellants.

APPEAL FROM: DistrictCourt of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Frank Davis, Judgepresiding.

COUNSEL OF RECORD:

For Appellants: Schulz,Davis & 

### Warren; JohnWarren,Dillon, Montana

For Respondents: Burgess, Joyce & 

### Whelan; Thomas Joyce,Butte, Montana

Submitted on Briefs: June 

### 7, 1985 Decided: August 29, 

### 1985

ClerkMr. Justice John Conway Harrison delivered theOpinion of the Court.

In the action below, Catherine Fisher O1Connor individually, and asPersonal Representative of the Estate of Alfred Fisher, together with Ralph Fisher, David Fisher and PhyllisFisher Crnkovich (hereinafterFishers) initiated this action seeking to quiet 

### title to four mining claims. John Wilke, Carl Caraker and Robert Wilke (hereinafter Wilkes) contested the action claiming they 

### were the owners of the four claims. The District Court of the Fifth Judicial District, Beaverhead County, sitting without a jury, the Honorable Frank M. Davis presiding found for the Fishers and awarded them title and possession of the four mining claims. From thisjudgment theWilkes appeal. The parties dispute the ownership of four unpatented mining claims situated approximately ten 

### miles southeast of Wisdom, Montana. The disputed claims areidentical, although the parties do not always refer to them by the same names. Fishers are the successors in interest of the late Alfred Fisherwho was theundisputed owner of fourunpatented mining claims located in Beaverhead County, Montana, namely the "Trapper,

### " "Martin," "Pocahontas" and "Clara.

## " These claims are based on properly recorded Certificates of Location datingback totheyear 1948. Sincetherecording of the Certificates of Location, 

### it is undisputed by either party that the Fishers, or their predecessors in interest, have travelled annua1I.y to the claims and performed assessment work valued at$100 ormore. This assessment work consists of clearing roads, cleaning drainages, improving tunnels and maintaining a cabin. It 

### is also undisputed by either party that since the recording 

### of the Certificates of IJocation, the Fishers, or their predecessors in interest, have filed with theBeaverhead County Clerk and Recorder the required affidavits of performance of annual assessment work. The only exception, that 

### is pertinent to this appeal, to Fishers' regular filing of these affidavits 

### is for the year ending August 31, 1977. During this

### timeperiod, Fishers failed to file any affidavit of annual work for any of their four claims. Although, as noted above, the annual work was performed by the Fishers, ortheirpredecessors ininterest, during thistime p~riod. In 

### the fall of 1977, the Wilkes, discovering the Fishers' failure to file the required affidavits of annual work for that mining year, relocated a claim on the "Clara" on November 27, 1977, renaming 

### it the "Deana." The Wilkes adopted the Fishers' discovery 

### site, reestablished 

### its corners, and recorded their Certificates of Location on November 28, 1977, in the office of the Beaverhead County Clerk and Recorder. Similarly, theWilkes, motivated by the absence of the other affidavits of annual work, proceeded to relocate on December 

### 31, 1977, the "Trapper," "Martin" and "Pocahontas" renaming the latter the "Mink.

## " The WiIkes properly recorded their Certificates of Location with the Beaverhead County Clerk end Recorder on February 7, 1978. Since the Wilkes relocated the four mining claims in the fa11 of 1977, both parties have performed the annual assessment work and filed the appropriate affidavits. The Fishers subsequently brought this lawsuit seeking to quiet title to the four mining claims. The issue presented on appeal 

### is whether the failure of the Fishers to file an affidavit of performance of annual assessment work on the four mining claims for the year ending August 31, 1977, caused a forfeiture of their interests, thereby making the claims open forrelocationby theWilkes.The thrust of the Wilkes' argument that the Fishers forfeited theirinterestsinthemining claims for failureto file an affidavit of annual work centers around the wording of 

### 5 82-2-103, MCA. This statuteprovides inpartpertinent tothecase atbar asfollows: Affidavit of performance of annual work:

(1)The owner of a lode orplacer claim who performs or causes to be performed theannualwork ormakes the improvements required by the laws of the United States

# ..

# .in order to prevent the forfeiture of the claim, must, within 90 days after the expiration of the federal annual assessment work period, file in the office of the county clerk of the county in which such claim or claims 

### is situated an affidavit of his own or an affidavit of the person who performed such work ormade the improvements

# ..

# .

(4) 

# ... Such affidavit or a certified copy thereof 

### is prima facie evidence of the factstherein stated. The failureto file such affidavits within the period allowed therefor shall be prima facie evidence that such labor has not been performed and thattheowner of theclaim or claims has abandoned and surrendered same. As the statute itself indicates, § 82-2-103, MCA, was enacted tosupplement Federal statutorylaw. The Federal Act 

### it supplements 

### is the Mineral Lands and Mining Act, 30 U.S.C.S 28. This act specifies how 

### a mining claim 

### is preserved:[Oln each claim located after the tenth of May, 1872 and until a patent has been issued therefor, not 

### less than $100 worth of labor shall be performed or improvements made during each year

# ..

# . and upon a failure to comply with these conditions, the claim ormine upon which such failure occurred shall be open for relocation in the same manner as if no location of the same had everbeen made, provided that the original locators, their heirs

## , assigns or legal representatives, have not resumed work upon the claim after failure and before such location

# ..

# .The period within which the work required to be done annually on allunpatented mineral claims located since May 

### 10, 1872, includingsuch claims in the Territory of Alaska, shall commence at 12:00 o'clock meridian on the firstday of September succeeding the date of location of such claims

# .. . Thus, 30 U.S.C. § 28 imposed the requirement that $100 worth of labor had tobe performed or improvements made on each claim annually in order topreserve thepossessory right to the claim. In addition, the Federal statute states that if the assessment work 

### is not done in a given year, but if the original locator resumes working on the claim, the dereliction of the year before 

### is forgiven if the work 

### is resumed before relocation. Thus, the Federal statute simply requires the work tobe done annually. If the work 

### is not done the claim 

### is open for relocation. If the work 

### is done the claim

### isnot open forrelocation. The Wilkes do not dispute the fact that the Fishers performed the required assessment work on each of the four claims. The Wilkes concede thatannually, includingtheyear ending August 31, 1977, the Fishers travelled tothe claims and performed and made improvements amounting to at least $100. Instead, the Wilkes argue that because the Fishers failed to file an affidavit of annual work for the year ending August 31, 1977, the Fishers' claims 

### were forfeited under 

### 5 82-2-103, MCA. The Wilkes assert that under the wording of 

### 5 82-2-103, MCA, the legislature unequivocally mandated a forfeiture of Fishers' interest in their claims for failure

### to filetheiraffidavitof annualwork. In support of their interpretation of 

### 5 82-2-103, MCA, the Wilkes rely on the chanqe of wording by the 1971 legislature of then 

### 5 50-704, R.C.M. (1947)

## , which substituted thepermissive word "may" for themandatory word "must" with reference 

### to the filing with the clerk and recorder of the affidavit of annual work. The amendment has

now been codified as 82-2-103, MCA. Although this Courtposed the question of the legal effect of this amendment in Sawyer-Adecor International, Inc. v. Anglin (1982), 198Mont. 440, 646 P.2d 1194, 

### we deferred interpretation of the new language because 

### we ruled that

### S 82-2-103, MCA, did not come into play and was irrelevant 

### in this particular case. The

case atbar, however, presents an opportunity forthisCourt tointerpretthenew language of 

### 5 82-2-103, MCA. In Sawyer-Adecor International

### we developed thehistory of 

### S 82-2-103, MCA, by exploring the language of former 50-704, R.C.M. (1947)

# . We stated that former 

### S 50-704 provided that the owner of a load orplacer mining claimwho performed theannual assessment work "may" file

### inthe office of thecounty clerk and recorderwhere theclaimwas situated

an affidavit showing the nature and character of the work that had been done on the mining claim. Section 50-704 further provided that "such affidavits

# . .. areprima facie evidence of the factstherein stated." While the former S 50-704, R.C.M. was in effect this Court decided Coleman 

### v. Curtis (1892)

## , 12 Mont. 301, 30 P. 266, which held that complying with the statutewas merely a

means of preserving prima facie evidence that the assessment work requirements had been fulfilled. Later in 1895 came Davidson v. Bordeau (1895), 15 Mont. 245, 38 P. 1075, in which this Court decided that while the affidavit of annual work was prima facie evidence that the assessment work had been done, oral evidence could be given to prove that the work had been done without regard tothe affidavit. Hence, it was the established law in Montana for seventy-six years that if one performed the federally required assessment work thatthepossessory rightstothe claim

### were preserved. As stated above, 

### S. 50-704, R.C.M (1947), was subsequently amended by the legislature 

### in 1971, and 

### is now carried forward as 

### S 82-2-103, MCA. The effect of the 1971amendment, as this Court explained in Sawyer-Adecor International, 

### is that whereas under 

### S 50-704 the filing of an annual affidavit was permissive ("may") 

### it 

### is now under 

### S 82-2-103, MCA, mandatory ("must"). In addition, the last sentence of § 50-704 which provided that "such affidavits

# . .. are prima facie evidence of the facts therein stated" was retained by the 1971amendment verbatim. And furthermore, the 1971 amendment added this provision as the last sentence to

### S 82-2-103, MCA: "The failure to file such affidavits within the period allowed therefor shall be prima facie evidence that such labor has not been performed and that the owner of the claim has abandoned or surrendered

same.

## "In reviewing the case law and language of former 

### 5 50-704, R.C.M. (1947)

## , and the new language of 

### 5 82-2-103, MCA, 

### it 

### iscleartothisCourt that

### it isthe assessment work and not the affidavitof annual work that controls. Weagree with theDistrictCourt thattheomission of the affidavit 

### is only prima facie evidence that the assessment work was not performed. We do not agree with the Wilkes' argument that the legislature in adopting 

### S 82-2-103, MCA, unequivocally mandated a forfeiture of Fishers' interest in their mining claims for failure to file their affidavit of annual work. The Wilkes ignore the last sentence of 

### 9 82-2-103, MCA, which says that the omission to filean affidavit 

### is "prima facie evidence that such labor has not been performed." Since the work was admittedly performed, this Court holds that the Fishers' claims

### werenot subjecttoforfeiturebecause of the failure to file one affidavit in a period of over thirty years. Certainly the Fishers

## ' claims 

### were never abandoned. Thus 

### we hold that while § 82-2-103, MCA, made the filing of an affidavit of annual work mandatory, thepenalty for failure tocomply with themandate requires the owner to

### assume the burden of proving that he did in fact locate the claim and that he did the assessmentwork within the federal mining year. 

### In the case at bar the Fishersproved the work was done, the Wilkes conceded the work was done, and the trial court found the work was done. Hence, the presumption that the work was not done was contradicted and overcome by other evidence. Since the work was done the federal statutory requirement was met (30 

### U.S.C. § 

### 28) 

### and the plaintiffs are entitled to keep their possessory rights to the claims against allbut the United States. The judgmentof the District Court is affirmed.

We concur: