No. 84-556 

IN THE SUPREME COURT OF THE STATE OF I\IONTANA 

1985 

CATHERINE O'CONNOR, individually 

and as Personal Representative 

of the Estate of Alfred Fisher, 

Deceased; RALPH FISHER, et al., 

Plaintiffs and Respondents, 

JOHN F. WILKE, CARL L. CARAKER, 

and ROBERT A. WILKE, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Schulz, Davis & Warren; John Warren, Dillon, 

Montana 

For Respondents: 

Burgess, Joyce & Whelan; Thomas Joyce, Butte, 

Montana 

Submitted on Briefs: June 7, 1985 

Decided: August 29, 1985 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

In the action below, Catherine Fisher O1Connor 

individually, and as Personal Representative of the Estate of 

Alfred Fisher, together with Ralph Fisher, David Fisher and 

Phyllis Fisher Crnkovich (hereinafter Fishers) 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 this judgment the Wilkes appeal. 

The parties dispute the ownership of four unpatented 

mining claims situated approximately ten miles southeast of 

Wisdom, Montana. The disputed claims are identical, although 

the parties do not always refer to them by the same names. 

Fishers are the successors in interest of the late 

Alfred Fisher who was the undisputed owner of four unpatented 

mining claims located in Beaverhead County, Montana, namely 

the "Trapper, " "Martin," "Pocahontas" and "Clara. " These 

claims are based on properly recorded Certificates of 

Location dating back to the year 1948. 

Since the recording of the Certificates of Location, it 

is undisputed by either party that the Fishers, or their 

predecessors in interest, have travel led annua 1I.y to the 

claims and performed assessment work valued at $100 or more. 

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 the 
Beaverhead 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 time period, 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, or their predecessors in interest, 

during this time 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, the Wilkes, 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 for relocation by the Wilkes. 
The thrust of the Wilkes' argument that the Fishers 

forfeited their interests in the mining claims for failure to 

file an affidavit of annual work centers around the wording 

of 5 82-2-103, MCA. This statute provides in part pertinent 

to the case at bar as follows: 

Affidavit of performance of annual work: 

(1) The owner of a lode or placer claim 

who performs or causes to be performed 

the annual work or makes 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 or made the improvements . . . 

(4) . . . Such affidavit or a certified 

copy thereof is prima facie evidence of 

the facts therein stated. 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 

or claims has abandoned and surrendered 

same. 

As the statute itself indicates, § 82-2-103, MCA, was 

enacted to supplement Federal statutory law. 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 or mine upon which 

such failure occurred shall be open for 

relocation in the same manner as if no 

location of the same had ever been 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 all unpatented mineral claims 

located since May 10, 1872, including 
such claims in the Territory of Alaska, 

shall commence at 12: 00 o'clock meridian 

on the first day 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 to be performed or improvements made on 

each claim annually in order to preserve the possessory 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 to be done annually. If the work is not 

done the claim is open for relocation. If the work is done 

the claim is not open for relocation. 

The Wilkes do not dispute the fact that the Fishers 

performed the required assessment work on each of the four 

claims. The Wilkes concede that annually, including the year 

ending August 31, 1977, the Fishers travelled to the 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 file their affidavit of annual work. 

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 the permissive word "may" for the mandatory 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 Court 
posed the question of the legal effect of this amendment in 

Sawyer-Adecor International, Inc. v. Anglin (1982), 198 Mont. 

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 at bar, however, presents an opportunity for this Court 

to interpret the new language of 5 82-2-103, MCA. 

In Sawyer-Adecor International we developed the history 

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 or placer mining claim who 

performed the annual assessment work "may" file in the office 

of the county clerk and recorder where the claim was 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 . . . are prima facie 

evidence of the facts therein 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 statute was 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 to the affidavit. Hence, 

it was the established law in Montana for seventy-six years 

that if one performed the federally required assessment work 

that the possessory rights to the 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 1971 
amendment, 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 1971 amendment 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 is clear to this Court that it is the assessment work 

and not the affidavit of annual work that controls. We agree 

with the District Court that the omission 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 file an 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 were not subject to forfeiture because 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, the penalty 

for failure to comply with the mandate requires the owner to 
assume the burden of proving that he did in fact locate the 

claim and that he did the assessment work within the federal 

mining year. In the case at bar the Fishers proved 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 all but the United States. 

The judgment of the District Court is affirmed. 

We concur: