No. 83-196 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

SILVER JET FIIWES , INC. , a Mont. corp. , 

Plaintiff, Respondent & Cross-Appellant, 

FRANKLIN SCHWARK, 

Defendant and Appellant., 

APPEAL FROP4: District Court of the Fourth Judicial District, 

In and for the County of Sanders, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Garlington, Lohn & Robinson; Paul C. Meismer, 

Missoula, Montana 

For Respondent & Cross-Appellant: 

Baxter, Fletcher & Hanson; Robert L. Fletcher, 

Thompson Falls, Montana 

Submitted on Briefs: March 1, 1984 

Filed: 

MAY 1 9 1984 

.." 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This action was brought by Silver Jet Mines, Inc. to 

quiet title in itself to four unpatented lode mining claims 

in the Burns Mining District in Sanders County, Montana 

which are also claimed by Franklin Schwark. Title to three 

of the claims was found to be in Schwark and the fourth in 

Silver Jet. Schwark appeals as to the claim quieted to 

Silver Jet and Silver Jet cross appeals as to the remaining 

three. 

Silver Jet is the successor in interest to certain 

mining properties once held by the Montana Standard Mining 

Company. The claims in dispute here are approximately ten 

miles southwest of Thompson Falls, Montana in the area of 

Prospect Creek. In the 1930's Montana Standard obtained 

patents to ten claims lying south of Prospect Creek. The 

creek runs through the bottom of a valley and the claims 

were worked by means of several tunnels which extended 

south, away from the creek into the hillside. The 

unpatented claims here in dispute were not located by 

Montana Standard until the 1950's and lie on the opposite 

side of the valley, north of Prospect Creek. 

Three of the four claims in dispute, "Bettye," 

"Tucker" and "Mary" were originally located as mill sites in 

1954, but amended notices of location were filed in 1957 

changing them to lode claims. Also in 1957 the fourth 

claim, "Riverside" was located. Discovery and corner 

location on Riverside all occurred in 1957. Mining work 

continued on the patented claims and on Riverside until 1960 

at which time all mining operations by Montana Standard in 
the area ceased. There was intermittent assessment work 

done by Montana Standard, Silver Jet after it obtained the 

claims, and several would be locators until approximately 

1980, when this dispute arose. 

Schwark is a long time resident of the area and had 

noticed rock outcroppings in the area during hunting trips. 

In 1979 he inquired of the Bureau of Land Management 

concerning the existence of claims north of Prospect Creek, 

and was informed there were none. In September 1980, 

Schwark and Donald Grimm located several unpatented claims 

known as the "Grub Stake" group. Six of these claims 

overlapped with the four unpatented Silver Jet claims. In 

the summer of 1981, Schwark began extracting ore samples 

from his unpatented claims. Remos Killian, president of 

Silver Jet, observed Schwark and notified him of the 

conflict. Discussions as to ownership ensued, and a short 

time later Silver Jet filed this action to quiet title in 

itself to the four claims. 

The complaint was filed on October 2, 1981, requesting 

that Schwark be enjoined from entering onto Silver Jet's 

mining claims and that title to the claims be quieted to 

Silver Jet. An order to show cause was issued on October 6, 

1981 and a hearing on Silver Jet's request for an injunction 

was held on October 27. After the hearing, both parties 

were restrained from performing assessment work, removing 

minerals or otherwise disturbing the ground on the disputed 

area of the claims. On February 23, 1982, Schwark filed his 

answer and asserted a counter claim for damages resulting 

from the forced cessation of his mining activity. A 

non-jury trial before Judge Jack L. Green was held in August 
of 1982, at which both parties presented evidence on the 

validity of the claims, reserving the question of damages. 

Findings of fact, conclusions of law and the order were 

entered on February 8, 1983. Schwark was found to have 

title to the conflicting parts of the Bettye, Tucker and 

Mary claims, because of invalid discovery by Silver Jet's 

predecessor Montana Standard. However, Silver Jet was found 

to have good title to the Riverside claim. Schwark appeals 

from this finding, and Silver Jet appeals from the finding 

concerning the Bettye, Tucker and Mary claims. 

We first discuss the issues raised on direct appeal by 

Schwark, concerning the Riverside claim. Schwark alleges 

two defects in Silver Jet's work on the claim which, he 

argues, result in a forfeiture. First he attacks the 

sufficiency of the discovery by Silver Jet's predecessor in 

interest, and second he attacks the sufficiency of the 

annual assessment work done by Silver Jet. 

A condition precedent to a valid mining location is 

the, "[Alctual discovery of a vein, lode or ledge of rock in 

place bearing a valuable mineral deposit." Anaconda Co. v. 

Whittaker (Mont. 1980), 610 P.2d 1177 at 1179, 37 St.Rep. 

902 at 904, citing Upton v. Larkin (1885), 5 Mont. 600, 6 P. 

66. When a subsequent locator questions the existence of 

such a discovery, it is incumbent on the original locator to 

prove that he has discovered sufficient minerals as will 

meet the "prudent man" test. Boscarino v. Gibson (Mont. 

1983), 672 P.2d 1119, 40 St.Rep. 1931. The prudent man rule 

has been stated as, 

"Where minerals have been found and the 

evidence is of such a character that a 

person of ordinary prudence would be 

justified in the further expenditure of 
his labor and means, with a reasonable 

prospect of success, in developing a 

valuable mine, the requirements of the 

statute have been met." Chrisman v. 

Miller (1905), 197 U.S. 313, 322-23, 25 

S.Ct. 468, 470-71, 49 L.Ed 770, 773-74. 

There is no requirement tha,t ore be found in 

sufficient quantity to support a profitable mining 

operation, nor is it required that any specific quantity of 

ore be found. In the end, the sufficiency of discovery is a 

question of fact to be decided below. Boscarino, supra. 

The trial court here found there had been a sufficient 

discovery of minerals on the claim and we agree. The 

certificate of location filed by the original locators in 

1957 is prima facie evidence of the existence of a valid 

discovery. Section 82-2-102(2), Thomas v. South Butte 

Mining Co. (9th Cir. 1914), 211 F. 105; motion denied, 34 

S.Ct. 999, 234 U.S. 754, 58 L.Ed. 1578. Prima facie 

evidence will stand unless contradicted and overcome by 

other evidence. Section 26-1-102(6), MCA. In this case, 

the prima facie evidence was not contradicted or overcome by 

any other evidence presented. Though the two men who 

originally located the claim for Montana Standard are now 

deceased, the wife of one of the locators testified that 

there was a vein showing in a shaft on the claim and that 

minerals had in fact been extracted. As the discussion in 

Boscarino shows, the burden of proving discovery is not 

high. The question of how much ore is sufficient to sustain 

a discovery is properly left to the trial court, and its 

decision will not be overturned if supported by substantial 

evidence. Boscarino, supra. Such evidence existed here. 

Schwark next attacks the sufficiency of the annual 

assessment work performed on behalf of Silver Jet. Since 
Schwark did not locate his claim until September of 1980, we 

only need scrutinize the assessment work of 1980, as the 

assessment work for prior years in inconsequential. If the 

1980 work is sufficient, Silver Jet has a valid claim. 

Thornton v. Kaufman (1910), 40 Mont. 282, 106 P.2d 361. If 

the 1980 work is insufficient, even sufficient work from 

prior years could not save Silver Jet's claim, presuming a 

valid subsequent location by Schwark. 30 U.S.C. 28 and 

Public Service Co. of Oklahoma v. Bleak (Ariz 1982), 656 

P.2d 600. It should also be noted that although Schwark's 

location was done in the calendar year 1980, the prior 

annual assessment period ended on August 30, 1980. For 

Schwark's location to be valid, Silver Jet's assessment work 

for the period of time beginning September 1, 1979 and 

ending August 30, 1980 must be invalid. See 30 U.S.C. 28 

and Consolidated Tungsten Mines, Inc. v. Frazier (Ariz. 

1960), 348 P.2d 734. 

The assessment work claimed to have been done by 

Silver Jet consisted of securing the entrance to "tunnel #3" 

to prevent unauthorized entry, clearing growth on the path 

to the tunnel, and clearing approximately 6000 square yards 

of ground. This work was done on Silver Jet's patented 

claims, but it claimed attribution to the unpatented claims 

under Section 82-2-103(2), MCA. Schwark alleges two defects 

here as well; first, that the work claimed is not proper 

annual assessment work, and second that it may not be 

attributed from the patented to the unpatented claim. 

Generally, assessment work must tend to develop the 

claim and facilitate the extraction of ore therefrom. 

Golden Giant Mining Co. v. Hill (N.M. 1921), 198 P. 276. 
Whether or not the work done meets this requirement is a 

question of fact, but courts should not substitute their own 

judgment as to the wisdom and expediency of the method 

employed for developing the mine in place of that of the 

owner. Mann v. Budlong (Cal. 1900), 62 P. 120. The trial 

court's finding that assessment work is sufficient to 

prevent an unpatented claim from being opened for relocation 

will not be disturbed on appeal unless clearly against the 

preponderance of the evidence. New Mercur Mining Co. v. 

South Mercur Mining Co. (Utah 1942), 128 P.2d 269, cert. 

den. 63 S.Ct. 1162, 319 U.S. 753, 87 L.Ed. 1707. 

The trial court found that the work claimed in the 

1380 affidavit of annual assessment was valid assessment 

work, and we agree. There was evidence elicited at trial 

which showed that the clearing could and would be used as 

the needed base of operations for mining the unpatented 

claims. There was also evidence that the unpatented claims 

could be mined from tunnel #3. Thus the work done on these 

directly facilitate the development of the mine and the 

extraction of ore. It has been held that road work and 

repair work done on roads to mining claims both constitute 

valid assessment work, and the work claimed here is more 

closely related to development of the mine than either of 

those. Pinkerton v. Moore (N.M. 1959), 340 P.2d 844. 

Schwark alleges that this same work has been done repeatedly 

in the past, and this should lead to the conclusion that the 

assessment work claimed for 1980 was insufficient. However, 

as noted before, what happened prior to 1980 is 

inconsequential as Schwark did not attempt to locate until 

that year. The trial judge correctly ruled that this was 
valid assessment work. 

Schwark next contends that this work was performed on 

the patented claims and may not be attributed to the 

unpatented claim. Assessment work not done on a particular 

claim or group of claims may only be attributed to the 

claim(s) if it is done, 

"[Flor the purpose of developing the 

claims and to facilitate the extraction 

of ore therefrom . . . In such case the 

work or expenditure must be for the 

purpose of developing all the claims. . . If the work is not a part of a general 

plan having in view the development of 

the group or consolidated claim, so that 

the ore may be more readily extracted, 

and the work has no reasonable adaptation 

to that end, then no matter what the 

amount of it is, it cannot be said to 

have been done in the development of the 

group." Copper Mountain Mining and 

Smelting v. Butte and Corbin Consolidated 

Copper and Silver Mining Co. (1909), 39 

Mont. 487 at 492-3, 104 P.540 at 541-2. 

The burden of proving such a benefit to the other 

claims is on the one seeking attribution. Copper Mountain, 

supra. The trial court found that Silver Jet had met this 

burden, and again we agree. As noted above, all the 1980 

assessment work was done off of the Riverside claim. 

However the evidence showed that the clearing is the closest 

flat area to the unpatented claims, and it would be 

necessary to base any mining operation on Riverside in that 

area. There is also evidence that the dike of mineral 

evident on the Riverside claim spans the valley onto the 

patented claims, where it is tapped by tunnel 83. The 

Riverside claim could be mined through tunnel #3. Remos 

Killian, past president of Silver Jet, testified that this 

was the company's plan; to base their operation on the 

patented claims and branch out onto the unpatented claims. 
Although there was testimony that this would be quite 

expensive, there has never been a requirement that the 

easiest or most efficient method of mining a claim be 

employed. Courts cannot substitute their judgment for the 

miner's. Mann, supra. The evidence showed how the work 

would aid their plan and benefit the Riverside unpatented 

claim. The trial court correctly ruled that it could be 

attributed from the patented claims to the Riverside claim. 

On cross appeal, Silver Jet contests the trial court's 

action quieting title to the overlap portions of the Mary, 

Bettye and Tucker unpatented claims to Schwark. Silver Jet 

contends that the court applied an incorrect rule of law to 

require forfeiture. It is their position that the court 

applied the "marketability" test to Silver Jet's 

predecessor's location which would be an incorrect 

application of the law as between rival claimants. See 

Boscarino v. Gibson (Mont. 1983), 672 P.2d 1119, 40 St.Rep. 

1931. However, the trial court specifically found that: 

"Plaintiff was unable to prove that they 

or their predecessors had located a 

valuable mineral deposit on any of the 

unpatented claims except Riverside. 

Failure to establish a prima facie 

showing of valuable mineral deposits 

renders the Plaintiff's interest in the 

Bettye, Tucker and Mary unpatented claims 

invalid. " 

Based on the above finding the court ruled that: 

"Plaintiff's interests in the Bettye, 

Tucker and Mary unpatented lode claims 

are deemed forfeited because of the 

Plaintiff and its predecessors' failure 

to substantially comply with state and 

federal mining law intended to develop 

mineral deposits on the public domain." 

Contrary to Silver Jet's assertions, the trial court 

based its decisions on the failure to locate - any minerals, 
not a failure to locate a marketable amount. This 

conclusion is borne out by an examination of the testimony 

at trial. Of the witnesses who were acquainted with the 

workings in the area at the time these claims were located, 

none testified to any minerals being found on these three 

claims or any mining work being done on them. The evidence 

showed that the Riverside claim was the only unpatented 

claim ever worked. Thus the trial court properly found that 

there had been no valid location on the Mary, Bettye and 

Tucker, and Schwark was free to locate on that property. 

A£ firmed. 

We concur: