(dissenting)..
I dissent. With much of what is said I am in agreement. There are conclusions reached which I think unwarranted and important facts which I feel constrained to set out.
James Morgan and Frank Cromar, in 1930, located Black Jack claims 1 to 4 inclusive; Morgan claiming a % interest and. Cromar a 54 interest. .They, were *435amended'locations of Black Jack claims 1 to 4 inclusive located in 1920 by James Morgan, Frank Cromar and others. Black Jack claim number 5 was located in 1930 by James Morgan alone.
Between 1930 and 1949 proof of annual labor was filed for the years 1937, ’38, ’39, ’40 and 1941. For the balance of the time James Morgan filed notices of intention to hold the claims under the various acts of Congress relieving from the obligation to perform annual labor.
The trial court in its finding of fact No. 4 said:
“That on said April 10, 1949, James Morgan executed the quitclaim deed to Howard T; Morgan and/or Walter F. Morgan * * * and it appears probable that said deed was intended as a deed gift and to take effect upon death of said grantor * * * ”
The deed was duly acknowledged and I am constrained to the belief that James Morgan divested himself of all interest in the claims. We quoted with approval in Chamberlain v. Larsen, 83 Utah 420, beginning on page 434, 29 P.2d 355, at page 362 the following:
“ ‘The possession of a deed, duly executed, in the hands of the grantee, is prima facie, but not conclusive, evidence of its delivery. It therefore follows that he who disputes this presumption has the burden of proof, and must show that there has been no delivery. And not only must this presumption be overcome, but it is held that there is such a strong implication-that it has been delivered when it is' found in the hands of the grantee that only strong evidence can rebut the', presumption.’ ”
There is no dispute that James Morgan handed the deed to Walter F. Morgan, his son, and one of the grantees a short time after April 10, 1949, the day of its execution and acknowledgement. The trial court in its pretrial order said:
“After discussion between counsel and the court, it appears that the issues between the plaintiffs and defendants are as follows:
“1. The plaintiffs Walter F. Morgan and Harold T. Morgan claim to be grantees of James Morgan and to have succeeded to his interest in the mining claims referred to in the complaint described as Black Jack Nos. 1, 2, 3, 4 and 5 in the Erickson Mining District, Juab County, Utah. “2. The plaintiffs George Cromar, Leslie Cromar, William Cromar, Eugene Cromar and Arlene Cromar Gear claim to be heirs and successors in interest of Frank A. Cromar, now deceased, who was one of the locators and owners of the above mentioned mining claims.”
The court stated the issue as embodied in the claim of the Morgan sons that they were grantees of James Morgan. The court was warranted in stating the issue that way because in plaintiffs’ answer to defendants’ cross complaint, plaintiffs de*436nied that James Morgan, deceased, left any estate. This allegation is inconsistent with the invalidity of the quitclaim deed. If James Morgan left no estate, it was in part due to the fact that his quitclaim deed to his sons divested him of his property. If the deed was void, as the trial court suggested, then the notice of intention to hold filed by James Morgan was efficient to avoid any forfeiture and the locations made by defendants on ground not then open to relocation were invalid.
But the majority opinion is not rested on the invalidity of the quitclaim deed. I cannot agree with the argument or the ■conclusion of the majority opinion, although under my view of the case the same result may follow. The majority opinion seems content to conclude that:
"There seems to be no good reason why the same principles which permit one other than the claimowner to perform assessment work for the latter’s benefit should not apply with equal cogency to the filing by one other than the claimholder of a ‘notice of intention to hold’ for the latter’s benefit.”
The majority opinion makes the end which it seems desirable sufficient to justify an unwarranted interpretation of the statute. It says:
“If the quitclaim deed in fact conveyed the claims to his sons, filing the notice was merely in implementation of his purpose of perfecting the gift. Beyond any doubt if he had done as-. sessment work it would have protected the claims and would have inured to the benefit of his sons, and his filing the notice should have the same effect.” *
It is well to look at the Federal Statute providing for the doing of annual labor and compare its language and its purpose with the Statute which suspended the doing of the annual labor. Section 2324 of the Revised Statutes of the United States provides in part as follows:
“ * * * On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ 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 to 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. * * * ”
It will be observed that this section makes no mention of the locator, owner or claimant in connection with the annual labor. It requires only that — “on each claim — $100 worth of labor shall be performed during each year — ”
Reference to the cases cited in the majority opinion illustrate how varied are *437■the situations where the work done by one other than the claimant or the owner will count for representation work. Those cases are potent argument that the courts have given a common sense interpretation to Section 2324, Revised Statutes of the United States, requiring only the performance of $100 worth of work each year.
That section does not say the owner or claimant shall do or cause to he done $100 worth of work on each claim. Hence the liberal attitude of the courts in holding the work done by person in privity of title with the owner, work done gratuitously, work done by an option holder, work done by a lien holder and work done by a stockholder of a corporation will count as annual labor.1
It is stated in American Mining Law, Volume 1, at page 287, Section 481, under the general subject annual expenditure and under sub-title “By Whom Made”:
“The annual expenditure may be made by the locator, his heirs, assigns or legal representatives or by some one in privity therewith or by one who has an equitable or beneficial interest in the property. A stockholder in a corporation claiming the property or a receiver appointed by a court, are within the rule. It is sufficient if the work done is gratituously contributed; but ‘’labor done or improvements made by a trespasser or a stranger to the title will not inure to the benefit of the owner.” The majority opinion takes an unwar-
ranted leap and blandly asserts:
“There seems to be no good reason why the same principles which permit one other than the claimowner to perform assessment work for the latter’s benefit should not apply with equal cogency to the filing by one other than the claimholder of a ‘notice of intention to hold’ for the latter’s benefit.”
The majority opinion cites with confidence the Nevada case of Nesbitt v. De Lamar’s Nevada Gold Min. Co.2 A casual reading of that case will disclose that it gives no support to the position taken here by the majority opinion. The plaintiff, Nesbitt, filed a protest in the United States Land Office at Carson City to the issuance of a patent to the Sleeper Mine. He also filed an adverse claim to that portion of the Sleeper Mine embraced within the boundaries of the Fraction Mine, claiming said Fraction Mine for himself and his alleged co-owners George Nesbitt, his brother and A. Borth as tenants in common.
The evidence showed that A. Borth, W. De Beck and H. Stevens located the Fraction Mine in May, 1892; no assessment work was done on the Fraction Mine in either 1893 or 1894. However, the Nesbitt Brothers in December of 1893 and in December of 1894 had a notice recorded in *438the proper county declaring their .intention in good faith to hold and work the mine. The plaintiff claimed that he and George Nesbitt, -his brother, had acquired all the right, title, interest and claim of W. De Beck and H. Stevens in and to the Fraction. Their claim of title was founded on an execution sale. The court held the sale void on the ground that the court in which judgments were entered against De Beck and Stevens never acquired jurisdiction of the defendants.
The important proposition raised, and the one that discloses that the case does not support the contention of the majority opinion is the following observation of the Nevada court:
“The vital question in this case is whether the said notices the Nesbitt Brothers caused to be recorded, of their intention to hold and work said mine,' had the legal effect of saving the mine from being subject to relocation for any period of time. In determining this question, it is not necessary to consider what legal value said certificates of sale and deeds may have, if any, except as evidence tending to show the good faith of the Nesbitt Brothers and their co-claimant, A.-Borth, in all that they did with reference to said mine. The evidence discloses that, from the date of said sales, A. Borth regarded the Nesbitt Brothers as having acquired all the interests of De Beck and Stevens in said mine, and that the Nesbitt Brothers and A. Borth mutually recognized each other as co-owners of said mining claim, as. tenants in common; that upon consultation and agreement between them, and at the request of A. Borth, the Nesbitt Brothers had said notices 'recorded in lieu of performing the annual labor; * * (Emphasis ours.)
It will be observed that 'the judgment of the court is rightly rested upon the fact that A. Borth, who was a legal owner and whose claim could not be assailed, requested the Nesbitt Brothers to file the notice in lieu of annual labor.
The Nevada court further observed at page 610 of 52 P.:
“The Fraction Mine being represented by one of the locators, A. Borth, and the said Nesbitt Brothers having had said notices recorded, in pursuance of said agreement, and at the instance of said Borth, as well as of themselves, * * * we are. of opinion that said mine had not been forfeited nor subject to relocation *
The Nevada court correctly interpreted the suspension acts of 1893 and 1894, which act provided:
“ * * that the claimant or claimants of any mining location, in order to secure the benefits of this act, shall cause to be recorded in the office where the location notice or certificate was filed * * * a notice that he or they in good faith intend to hold and work said claim.’ ”
*439The' decision of the Nevada court in recognizing the validity of the notice filed by the Nesbitt Brothers at the instance and request of A. Borth, a claimant, is clearly •correct.
The language of the Act of Congress tinder which James Morgan filed the notice of intention to hold is quite different from the language requiring annual labor. The 1949 Act, after declaring that the provisions of Section 2324, Revised Statutes of the United States requiring annual labor shall be suspended as to all mining claims in the United States, until the hour of 12 o’clock meridian on the first day of July, 1949, adds:
“Provided, That every claimant of any such mining claim in order to obtain the benefits of this Act shall file, or cause to be filed, in the office where the location notice or certificate is recorded, on or before 12 o’clock meridian of August 1, 1949, a notice of his desire to hold said mining claim under this Act: Provided further, That any labor performed or improvements made on any such mining claim during the year ending July 1, 1949, may be credited against the labor or improvements required to be performed or made for the year ending at 12 o’clock meridian on’.the 1st day of July, 1950.” 63 Stat. 200.
■ It would appear that no. strained or unnatural meaning was intended to be given the term claimant and for the .purpose of the act it must be presumed that it was to be given its ordinary meaning. "Claimant” is defined, in Webster’s New International Dictionary, Second Edition, Una--bridged, “one mho asserts a right or title.”
I am unwilling to permit my sympathy for plaintiffs to bandage my eyes to what I consider the clear and unambiguous meaning of the Suspension Act of 1949.
The Act predicates its benefits on the condition “That every claimant of any such mining claim in order to obtain the benefits of this Act- shall file, or cause to filed *
As heretofore observed James Morgan was a claimant only if he still owned the claims. If he no longer owned the claims he could not be a claimant.
Again I quote from the majority opinion:
“It would be overtechnical and inconsistent with the purpose underlying our mining law for us in this case to place such a restrictive meaning on the term claimant that the filing of notice by the elder Mr. Morgan would fail to preserve the claims for his sons.”
If the claims as suggested belonged to. the sons they were the claimants. If, as was the situation in the Nesbitt case, the Morgan sons or one of them had requested James Morgan to file the notice, then the sons, the claimants, would have complied with the Act.by causing the notice to be filed.
Had James Morgan recited that he was filing the notice at the request of bis sons, the situation would be different, or on be*440half of his sons it would be consistent. However, an examination of the notice of intention to hold filed by James Morgan (Plaintiffs’ Exhibit 8) will disclose that it did not purport to be filed on behalf of the sons. James Morgan didn’t purport to act for his sons or recite that it was filed to-protect them. After setting out the names of the claims and that the owners desire to hold the mining claims under the Act of Congress concluded thus:
“The owners being James Morgan of Eureka, Juab County, State of Utah, whose co-owner is the estate of F. A. Cromar, deceased of Eureka, Juab County, State of Utah.
Signed: James Morgan Co-Owner”
Let us examine some of the cases recognizing annual labor performed by one other than the owner or claimant and see if the same person could reasonably be understood to be the claimant of the property.
As observed in the majority opinion, labor performed by a stockholder of a corporation has been held as representation work.
Can it reasonably be contended that a stockholder in a mining corporation might file a notice of intention to hold a claim, particularly if as here, he asserted that he was the owner of the mining claim and did not state that it was filed at the request of the corporation or for the benefit of it?
Wpuld.it be contended that a lessee or licensee could file the notice as owner and avoid the forfeiture?
Would it be contended that in the case cited in the majority opinion, Schlegel v. Hough, 182 Or. 441, 186 P.2d 516, 188 P.2d 158, Carl Anderson who was permitted by Schlegel to go upon the claim and work and was to retain whatever gold he might recover in such work could file in his own name a notice of intention to hold which would protect the claim against forfeiture?
Would it be contended that a mortgagee could file the notice of intention as was done in this case by James Morgan — and prevent a forfeiture of the claim? Might an optionee file such notice? The cases hold that both mortgagee and optionee may do work to meet the required annual labor, but it does seem far fetched to hold that either is a claimant authorized to file the notice.
I see no escape from the conclusion that after James Morgan divested himself of all his interest in the claims he was no longer a “claimant.” It was observed by the court in Wailes v. Davies,3- “The federal act in relation to the performance of annual labor says nothing as to the person by whom it shall be performed.” But Public Law 107 allowing the filing of the notice in lieu of annual labor is specific that it be filed or caused to be filed by the claimant.
The decision of the Supreme Court of Idaho in the case of Carrey' v. Secesh *441Dredging, Mining & Milling Co., Inc.,4 gives support to the position that the suspension act is a special act, enacted to meet an emergency and should he strictly construed. In that case a notice of intention to hold was filed in compliance with the Act of Congress suspending annual labor for year 1932.
At the time the notice was filed the claim was in default — the annual labor had not been performed for two years. In holding that the notice of intention to hold did not satisfy the statute as to resumption of work the Idaho court said, at page 774 of 39 P.2d:
“The resolution of June 30, 1932, supra, is clear and explicit in its provisions suspending assessment work and improvements on mining claims for a period of a year, commencing July 1, 1931, and ending July 1, 1932. The resolution is not ambiguous or uncertain in any particular. Assessment work and improvements, in language which cannot be misunderstood, are suspended for a period of a year, and for that period only. Nor does that resolution, either expressly or impliedly, suspend assessment work for previous years, or for any year other than that clearly and definitely fixed. Nor does it provide, either expressly or impliedly, that the suspension of assessment work, for the period so fixed shall amount to a resumption of work.”
The Idaho court further observed, at page 775 of 39 P.2d:
“And, further, to construe that resolution into the equivalent of a resumption of actual work and the performance of annual assessment work for the years in which appellant completely defaulted would encourage and approve long and continued failure to perform required annual assessment work, and thus seriously affect the development of our mineral resources, contrary to public policy, and result in great public mischief. In Lewis’ Sutherland on Statutory Construction (2d Ed.) § 489, it is said: ‘A construction which must necessarily occasion great public * * * mischief must never be preferred. * * * Of two constructions, either of which is warranted by the words of the amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended.’ ”
I, therefore, am of the opinion that the notice filed by James Morgan availed the plaintiffs nothing.
This conclusion, however, is not conclusive of the case. It becomes necessary to determine whether the required assessment work was performed on the claims during the year July 1, 1949, to July 1, 1950. As to this matter, the trial court made no find*442ing of fact, it being, unnecessary under its view of the case. Under my’ view, however, a finding on that matter is imperative. Orson H. Evans who had leased the claims from James T. Morgan testified that he did certain work in the fore part of the month of July, 1949, and that he purchased timber and gasoline which he expended on the claims. There was testimony that on three occasions between July, 1949 and the death of James Morgan on November 29, 1949, he accompanied Victor Bray to the claims where they stayed for three days on each occasion while Bray performed labor, on the claims and that in payment for Bray’s labor Morgan cancelled repayment of a loan of an undisclosed amount of money which he had made to Bray and, in addition, paid Bray thirty dollars. There can be no question that the value of the work done and the money spent on the claims by Evans as well as the work done by Bray would count as annual labor for the year July 1, 1949 to July 1, 1950.
The trial court found, and the evidence supports the finding, that between July 1, 1948, and July 1, 1949, more than $500 worth of labor was performed upon the 5 claims in question.
If the required work was done on the claims between July 1, 1949 and July 1, 1950, the claims were protected against relocation before July 1, 1951. The defendants claitns were located during the month of June, 1951.
Apparently an affidavit of labor and improvements performed as required by Section 40-1-6, Utah Code Annotated 1953,. was not filed by the plaintiffs, but such failure to file does not render the claims open, to relocation if the owner tan prove in fact that the assessment work was done.5 It should also be remembered as was said in Wailes v. Davies, supra, that “The burden of proof is always upon the party seeking to establish the forfeiture of a mining claim. Courts have always been very reluctant to enforce forfeitures; ‘they have settled the doctrine that a forfeiture cannot be established except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount . required by law.’ 6
Because the trial court made no finding as to what work was performed and improvements made during the year July 11, 1949, to July 1, 1950, and because such a finding is imperative to the disposition of this case, I am of the opinion that the judgment entered below should be reversed and the case remanded to the trial court to make that determination, taking additional evidence if it deems it necessary or advisable.
*443One more matter should be noted. De--'fendants did not locate their claims until’ June, 1951. Even if the necessary assess-' ment work was not done for the year July 1, 1949 to -July 1, 1950, nevertheless if there was a bona fide resumption of work by the ■plaintiffs after July 1, 1950, prior to the locations made by the defendants, the plaintiffs would he protected.7 By the express ■provisions of Sec. 2324 quoted herein property is open to relocation where there has 'been a failure to do annual assessment work, provided that the original locators, 'their heirs, assigns or legal representatives have not resumed work upon the claim after failure and before such location.
I am of the opinion that the judgment slrould be reversed and the case remanded for further proceedings in accordance with 'the directions herein given. No costs should be awarded.
The majority opinion indicates that notice of intention to hold would be good ■whether filed by plaintiffs or by the father James Morgan, that both the sons and the father qualify as claimants under Public Taw 107. This position I believe is untenable and ignores the-plain language of the suspension statute, in order to avoid a forfeiture.
The Act is not one effecting a forfeiture, rather it was enacted to avoid a forfeiture.
Its language is not to be ignored to accomplish a result deemed desirable by the majority opinion.
The majority opinion by adopting an illogical premise proceeds to arrive at a logical- conclusion. It says:
“It seems inescapable that the purpose of requiring assessment work and of requiring the filing of a notice ‘of intention to hold’ is the same — to require evidence of diligence and good faith in developing the claims and to give notice thereof to others.”
Wherein does the filing of the notice furnish evidence of diligence and good faith in developing the claim. It is permitted to relieve- one who has failed to furnish evidence of diligence in developing the claim. It relieves from doing what the mining laws have always asked for. As was stated in Wailes v. Davies, supra:
“The federal act in relation to the performance of annual labor says nothing as to the person by whom it shall be performed. The obvious purpose of the law is to exact work as an evidence of good faith on the part of the owner, and also to discourage the holding of mining claims without development or intention to develop, to the exclusion of others who could and .would improve such ground if they had opportunity. * * *”
. Morrison’s Mining Bights, 16th Edition, page 114.
. 52 P. 609, 610.
. C.C., 158 F. 667, 672.
. 55 Idaho 136, 39 P.2d 772.
. Murray Hill Min. & Mill. Co. v. Havenor, 24 Utah 73, 66 P. 762.
. See 2 Lindley on Mines 645; Hammer v. Garfield Min. & Mill. Co., 130 U.S. 291, 301, 9 S.Ct. 548. 32 L.Ed. 964.
. Morrison Mining Rights, 16th Ed., p. 124; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; Klopenstine v. Hays, 20 Utah 45, 57 P. 712.