Small Claims Court - Top Filers

[Rail Dawg]

Got a situation where someone filed a lode claim on top of one of our placer claims in Rye Patch, NV.

We don’t know the individual and didn’t give permission for the lode claim to be filed.

Usually a phone call to the person that top-filed resolves the issue.

However in this case the top-filer (who only filed with the BLM and not Pershing County) doesn’t seem to care that they have filed illegally.

Anyone dealt with this type of issue in a Small Claims Court?

We haven’t lost any money (yet) and from what we understand in Nevada a Justice Court Judge can only award money but can’t compel a defendant to do something. i.e. file a Claim Abandonment with the BLM.

We don’t want this person digging on our claim so what do you all suggest we do?

If it’s a Small Claims matter any suggestions on how to proceed?

We’re easy-going but it seems in some cases being nice won’t prevent a top-filer from going after our minerals.

Thanks for any ideas.

 

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[danec71]

You need to file in civil court.small claims is not the right court

 

[Goldwasher]

Small claims is civil court.. as in not criminal.

It is used to sue people or Businesses up to a certain amount.

 

[Goldwasher]

Got a situation where someone filed a lode claim on top of one of our placer claims in Rye Patch, NV.

We don’t know the individual and didn’t give permission for the lode claim to be filed.

Usually a phone call to the person that top-filed resolves the issue.





Maybe start a deep convo with the County Sheriff. Considering you are in Nevada he should be aware of how the situation works trespass-wise.

You can show you have a valid claim that predates the top filer.

Send the topfiler a cease and desist. Inform him he is trespassing.

If you run across him working your claim place, him under citizens arrest. You don't have to detain him to do that.

have a video camera/cellphone ready.

Make him take you to court if he feels he can prove his claim is valid and not yours.

But, I'm pretty sure if you show the S.O. the papertrail and the fact that he hasn't recorded at the county. The S.O. should help you out at least in creating paperwork that will win your case.


The damages you could sue for would be stolen minerals. I have found out the hard way that is a difficult thing to prove. ( in Ca. at least)

It's your claim and it would seem that him being present when it isn't his claim and pushing that it is could be considered as "materially interfering"

 

[Oddjob]

Small claims would not do you any good, small claims are a branch off from Civil Court. Small claim for example would be low level civil matters like back rent, unpaid personal loans or wages, minor property damage, and minor consumer complaints. Also there is a limit in small claims as well if your case fell under that, which it does not, but the State limit could be checked online and likely does not exceed 15K. Its just a branch off from Civil that assist in backlog by allowing two parties to just speed matters up and settle.

If your decided to take this the legal route instead of track through the issuing authority to resolve a human error they should have caught then you will need to get an attorney, at that time the attorney will likely be able to settle this matter with a simple letter that would cost you between 1000-1500 bucks. But if it did go to Civil Court. The attorney would explain all that to you and further process details.

 

[Rail Dawg]

Please keep the suggestions coming.

We figure that after enough years owning claims learning the court system to right wrongs is simply part of the process.

Also learning how to correctly bring the sheriff in is important.

Even if we get this situation resolved it’s time to have a solid foundation.

We will not tolerate top-filers whether through ignorance of the process or malicious intent.

It has to be a zero-tolerance policy.

 

[Clay Diggins]

It's strictly a civil matter. The Sheriff has no role. It's a private property dispute.

The proper court for claims disputes is always the first court of record. Small claims is not a court of record.

In most States the District Court is the first court of record. Nevada may be different, you will need to check out the proper venue in which to file.

If the junior locators are actively working the claim you may be able to move your case up to within a few days of filing, otherwise you will have to wait like everyone else.

Make sure you can prove that you notified the junior locator of their error and left them enough time to mitigate their error. Courts don't like being asked to settle a dispute before the parties have made a genuine effort to settle the matter themselves first.

Bring the law and the facts to court with you. You can't expect the Judge to rule on laws that he doesn't have Judicial Notice of and if you don't provide proof of the facts specific to the case the Judge won't be inclined to rule in your favor. The case is yours to make - that's not the duty of the Judge or the Court.

Once you have a judgement if the junior locators don't remove their claim in a timely manner then the Sheriff can help you enforce the order of the court.

Heavy Pans

 

[Clay Diggins]

If your decided to take this the legal route instead of track through the issuing authority to resolve a human error they should have caught then you will need to get an attorney, at that time the attorney will likely be able to settle this matter with a simple letter that would cost you between 1000-1500 bucks. But if it did go to Civil Court. The attorney would explain all that to you and further process details.

The locator is the issuing authority for mining claims. There are two issuing authorities in this matter which is why there is a dispute.

There is no authority but the claimant to enforce his claim to the minerals. No one needs to ask permission or get approval from any authority to make a valid mining claim. It is entirely up to the claimant to possess, maintain and occupy his claim to the valuable minerals. That is repeated often throughout the mining laws.

The very first mining law made it very clear that disputes between claimants were not a matter for the United States. That's why each mining claim is only an individual right predicated on discovery and the ability to possess, maintain and occupy that discovery.

Here is the entire text of the 1865 Mining Act.

That no possessory action between individuals in any of the courts of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines are, is in the United States, but each case shall be adjudged by the law of possession.

Neither the BLM nor the County Recorder have a role in determining which claimant has the better right. The County Recorder only keeps the public record made when a claimant records their required notices. The BLM only maintains a case file to assist in their duty to track the status of the public lands. Neither can, or will, give evidence about the ownership a mining claim in a court of law.

Personally I would avoid lawyers when dealing with disputes between mining claimants. There are no legal experts for hire in these matters. An attorney might be an assistance in understanding court procedure and requirements but they will fail badly when developing legal theories and strategies.

Luckily for Rail Dawg the odds are high the junior claimants will not bother to appear in court - most never show up. If that happens ask for a default judgement and be prepared with an order for the court to sign. You would likely be out of there in 15 minutes with a win for the cost of filing and gas to get to the court. If you write the court order correctly it's highly likely the Judge will award your costs.

Heavy Pans

 

[Oddjob]

The locator is the issuing authority for mining claims. There are two issuing authorities in this matter which is why there is a dispute.

There is no authority but the claimant to enforce his claim to the minerals. No one needs to ask permission or get approval from any authority to make a valid mining claim. It is entirely up to the claimant to possess, maintain and occupy his claim to the valuable minerals. That is repeated often throughout the mining laws.

The very first mining law made it very clear that disputes between claimants were not a matter for the United States. That's why each mining claim is only an individual right predicated on discovery and the ability to possess, maintain and occupy that discovery.

Here is the entire text of the 1865 Mining Act.


Neither the BLM nor the County Recorder have a role in determining which claimant has the better right. The County Recorder only keeps the public record made when a claimant records their required notices. The BLM only maintains a case file to assist in their duty to track the status of the public lands. Neither can, or will, give evidence about the ownership a mining claim in a court of law.

Heavy Pans

Thanks, I did not know this and it explains how this has happened. Never filed for a claim in the US though.

 

[chlsbrns]

personally I would avoid lawyers when dealing with disputes between mining claimants. There are no legal experts for hire in these matters.



Heavy Pans

You were kidding?

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[RichieRich]

Boy that is terrible. Glad you are taking the legal route. Keep up the good work

 

[danec71]

I just got done going through an issue involving Mining claims that I had to go to court over. Only in my case it was a matter of a guy locking me out of the gate claiming his unpatented mining claims were private property and I have no right to pass over them to my Mining claims. Had to go to civil court and file and this process took almost a year and in the end he didn't even bother to show up and I got a court order for a few different things. At this point I'm going to have to enforce the court order which I wasn't wanting to have to do.so there is a chance even after you go through the whole deal they may not back down and you'll have to enforce the court order.but this is the kind of stuff you can get if you prepare your case right. Small claims court will get you nothing.

 

[mikep691]

I just got done going through an issue involving Mining claims that I had to go to court over. Only in my case it was a matter of a guy locking me out of the gate claiming his unpatented mining claims were private property and I have no right to pass over them to my Mining claims. Had to go to civil court and file and this process took almost a year and in the end he didn't even bother to show up and I got a court order for a few different things. At this point I'm going to have to enforce the court order which I wasn't wanting to have to do.so there is a chance even after you go through the whole deal they may not back down and you'll have to enforce the court order.but this is the kind of stuff you can get if you prepare your case right. Small claims court will get you nothing.

CARRY A MASTER KEY. Every time you pass through that claim, and it's gated and locked, use your master key and leave a copy of the court order. After a few locks, he'll get the hint.

 

[Mudflap]

Up here in CT ya gotta go see Judge Judy....grin

 

[danec71]

My master key is a grinder and I have replaced the lock twice next time I go see the sheriff with the court order

 

[Bonaro]

Im not sure why you want to take him to court. What do you expect the court to do for you?
He filed his claim improperly in two ways
1. He did not file with the County so the claim in invalid. I would call the BLM and ask them if they will invalidate on that basis and you are done.
2 It was impossible for him to file a valid claim. He was not able to make a discovery because your existing claim prevented him from prospecting. This is probably why he didn't file a Notice of Discovery with the county, because he didnt do it.

The minute he enters your claim to prospect, set posts or work the mine in any way he is guilty of Mineral Trespass, call the sheriff.

If it were me I would call or write him to inform him of these facts

 

[Rail Dawg]

Im not sure why you want to take him to court. What do you expect the court to do for you?
He filed his claim improperly in two ways
1. He did not file with the County so the claim in invalid. I would call the BLM and ask them if they will invalidate on that basis and you are done.
2 It was impossible for him to file a valid claim. He was not able to make a discovery because your existing claim prevented him from prospecting. This is probably why he didn't file a Notice of Discovery with the county, because he didnt do it.

The minute he enters your claim to prospect, set posts or work the mine in any way he is guilty of Mineral Trespass, call the sheriff.

If it were me I would call or write him to inform him of these facts

Good points. The letter to him from us goes out today certified mail.

The legal option is the final option and will serve notice that top-filing won’t be tolerated.

When the court rules in our favor we will then be armed with a judgment that can be shown to the sheriff should it go that far.

We’re thinking however the letter should do the trick.

Again good points.

 

[Goldwasher]

It's strictly a civil matter. The Sheriff has no role. It's a private property dispute.

The proper court for claims disputes is always the first court of record. Small claims is not a court of record.

In most States the District Court is the first court of record. Nevada may be different, you will need to check out the proper venue in which to file.

If the junior locators are actively working the claim you may be able to move your case up to within a few days of filing, otherwise you will have to wait like everyone else.

Make sure you can prove that you notified the junior locator of their error and left them enough time to mitigate their error. Courts don't like being asked to settle a dispute before the parties have made a genuine effort to settle the matter themselves first.

Bring the law and the facts to court with you. You can't expect the Judge to rule on laws that he doesn't have Judicial Notice of and if you don't provide proof of the facts specific to the case the Judge won't be inclined to rule in your favor. The case is yours to make - that's not the duty of the Judge or the Court.

Once you have a judgement if the junior locators don't remove their claim in a timely manner then the Sheriff can help you enforce the order of the court.

Heavy Pans

Thank you that makes more sense. Considering it's not about money.

So, local superior court?

What exactly are you petitioning the court with?

A motion.. cease and desist order?

I've sued twice and won in small claims I figured it was the same sort of thing.

But.. that was in a county that only had one courthouse...so, everything happens at one place.

 

[Rail Dawg]

Thank you that makes more sense. Considering it's not about money.

So, local superior court?

What exactly are you petitioning the court with?

A motion.. cease and desist order?

I've sued twice and won in small claims I figured it was the same sort of thing.

But.. that was in a county that only had one courthouse...so, everything happens at one place.

We’re learning too which is good. Just the next step in becoming a well-rounded miner.

We believe in Nevada it will be in the local district court although we just lined up a good local attorney well-versed in mining claim disputes. He’ll give us the guidance on where and how to file if/when needed.

Will post on here the process.

 

[Clay Diggins]

Im not sure why you want to take him to court. What do you expect the court to do for you?
He filed his claim improperly in two ways
1. He did not file with the County so the claim in invalid. I would call the BLM and ask them if they will invalidate on that basis and you are done.

The minute he enters your claim to prospect, set posts or work the mine in any way he is guilty of Mineral Trespass, call the sheriff.

You really can't expect the BLM to help in this matter Bonaro. I've given you the mining law that prohibits claimants from involving the government in their claim disputes.

Here is the entire text of the 1865 Mining Act again.

That no possessory action between individuals in any of the courts of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines are, is in the United States, but each case shall be adjudged by the law of possession.

If that's difficult to understand or you, like others, believe old laws don't apply here is a much more recent decision where the BLM got their rears chewed for even suggesting that a disputed claim might be properly located.

Robert O'Day 2013

The BLM can not close a claim case file or "invalidate" a mining claim because of a dispute between claimants. The BLM does not work for claimants. They are a surface management agency - they do not manage your mineral rights.

Once an adverse claim (overclaim) has been made the Sheriff can not interfere. It's entirely up to the claimants, or ultimately the courts, to settle their dispute. It's a civil matter. That's what the law says and that's what the Sheriff will tell you if you ask him to intervene. Please don't bother the Sheriff with civil disputes, you may actually need his help on your claim some day and false alarms could make the Sheriff reluctant to deal with you and other claimants needing help.

Once Rail Dawg has a court order he can take that to the BLM and they will close the adverse claims case file because the court has adjudicated the civil matter in his favor. Even the BLM has to obey a court order. If the overclaimer persists after the judgement the Sheriff can help too.

Heavy Pans