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  1. #136

    Mar 2014
    NorCal
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    Quote Originally Posted by Bonaro View Post
    I'm no diplomat...just learned a few things in life. I have no idea who is rightful here, it is not my business, only my interest.

    The OP came out of the chute like a raging bull and did his best to rally the troops and the over-filer was silent. Both seem to believe they are in the right and if the OP papers are in order he probably is...I haven't seen them so I dont know. I do know that if I were the new filer and Yosemite Sam came at me like this, especially with all the veiled threats, I would sit back and wait for him to shoot his load.

    It has been my experience that most issues can be resolved with communication, mediated if necessary. People who threaten to lawyer up at the first offense seldom do and usually have never had the lesson of how painful that can be for everyone. Lawyers are only for when all else fails and the only one that wins is usually the lawyer.

    Here is one possible outcome that no one has pointed out. If the new filer decides to just keep going forward with his claim assertion and the OP continues to rage on and runs to the courts, it will be a year or more before this is heard. That is a year of attorney fees and headache for the OP with little or no response from the new filer. When the new filer finally has to defend and spend money he can just surrender and its over... but he still gets a year or maybe 2 of free mining.
    Another good reason to try and resolve this peacefully...your results may vary
    Ok.. If this is truly how you feel I am not sure how you came to this. My "rage" has been nothing but stating facts and defending my position and ownership. I would assume and encourage anyone to do the same in this situation. My bringing it to this platform was what I thought would be a perfect outlet to discuss further AFTER the initial polite phone conversation resulted in nothing, still trying to resolve basically on our own... If threats you mean me saying that I have to take further action? What am I suppose to do just let him walk all over me to, is that ok?. I find it strange that so many have such a issue with it, I never thought it would offend folks I guess I never realized it would be looked at so negatively.

    Seriously rage? I might come off a little stern I think but Ive been stolen from, and everyone wants to poke ME with a stick for trying to resolve it..
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  2. #137

    Mar 2014
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    Also I never forced him to reply, it could have ended there. I really didn't think he was going to reply, possibly he would read some of what we posted and call me back is what I was thinking would happen at the time..
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  3. #138
    us
    Ed Tracy

    Jan 2015
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    " Due Diligence " Is the key word here, I have been told by the BLM and the county recorders office it is up to the filer to do the proper research before filling, relying on hearsay from government workers is not doing your Due Diligence, you have to go threw all the records and I would also contact the previous owner of the claim to find out what was happening with the claim, it is up to filer to determine all this before filling and if he doesn't he is guilty of claim jumping.

  4. #139
    Charter Member
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    Quote Originally Posted by Bonaro View Post
    I'm no diplomat...just learned a few things in life. I have no idea who is rightful here, it is not my business, only my interest.

    The OP came out of the chute like a raging bull and did his best to rally the troops and the over-filer was silent. Both seem to believe they are in the right and if the OP papers are in order he probably is...I haven't seen them so I dont know. I do know that if I were the new filer and Yosemite Sam came at me like this, especially with all the veiled threats, I would sit back and wait for him to shoot his load.

    It has been my experience that most issues can be resolved with communication, mediated if necessary. People who threaten to lawyer up at the first offense seldom do and usually have never had the lesson of how painful that can be for everyone. Lawyers are only for when all else fails and the only one that wins is usually the lawyer.

    Here is one possible outcome that no one has pointed out. If the new filer decides to just keep going forward with his claim assertion and the OP continues to rage on and runs to the courts, it will be a year or more before this is heard. That is a year of attorney fees and headache for the OP with little or no response from the new filer. When the new filer finally has to defend and spend money he can just surrender and its over... but he still gets a year or maybe 2 of free mining.
    Another good reason to try and resolve this peacefully...your results may vary
    I agree that informed communication is the key to resolving disputes amicably. As a reasonable man asmbandits has been pursuing that resolution.

    In this particular situation asmbandits, the senior claimant, also has a legal duty to defend his claim against adverse possession. It's already legally a public matter due to the public record made with the County. It may or may not be wise to bring this subject to a public forum but there might be a valid argument that this has been a reasonable effort on asmbandits part to legally mitigate the damage against his mineral title.

    In California as in most states the plaintiff is required to mitigate the damages he sustains:
    It has been the policy of the courts to promote the mitigation of damages. The
    doctrine applies in tort, wilful as well as negligent. A plaintiff cannot be
    compensated for damages which he could have avoided by reasonable effort or
    expenditures
    .Ē (Green v. Smith (1968) 261 Cal.App.2d 392, 396 [67 Cal.Rptr.
    796]
    Read the link above to better understand that what asmbandits has done in bringing this dispute to this forum is actually a smart move.

    If efforts to settle the matter with informed communication fails the senior claimants duty is still the same - defend his claim against adverse possession. A certified letter recording the senior claimant's knowledge of the transgression and requesting the adverse (junior) claimant to mitigate their violation is a required part of any further action. It appears asmbandits has done that.

    Should mitigation efforts fail a quiet title action in the first court of record is the only legal recourse left to the senior claimant. If he doesn't do that he will be reinforcing the cloud on his mineral title. That might work out OK but in the real world things like this are rarely resolved to everyone's satisfaction without further action.

    It appears that asmbandits is conducting his affairs regarding this mining claim in line with the law and civil procedure. Would you really suggest to him he should just give up his senior claim and submit to the adverse overclaim rather than protect his property by the only legal method he has? Court may be scary to some but the alternative of just rolling over to whoever wants to to take your stuff is very - California. Please tell me you are not so inclined.

    asmbandits is not required to have or pay an attorney. He is allowed to collect his expenses as part of a judgement in his favor. Quiet title actions regarding mining claims are usually a simple matter that often can be cleared up with a brief court appearance by a miner prepared with certified copies of his location record and annual county records. In my experience most overclaimers never even appear in court and either settle the matter before the trial date or simply don't show up to defend their adverse claim. No appearance = default judgement = win for asmbandits.

    After the win just sending a copy of the judgement to the BLM will get the adverse claim changed to CLOSED status. Recording the judgement in your claim records with the County Recorder puts potential adverse locators on public notice. Showing the court decision to a Sheriff is enough to get the adverse claimant removed from the claim and possibly jailed if he is found mining the claim.

    There is a comprehensive and long established procedure for eliminating adverse mineral claims. Reasonable dialogue is not the end of the senior claimants rights and duties to maintain their claim. Assuming the claim was worth locating and mining why would any reasonable man just give up his minerals to the first person to file some papers in an effort to take his property?

    To put it another way - if you found a stranger taking stuff from your garage would you just let them walk away with your possessions if the stranger didn't respond to communication - mediated or not?

    I'm not trying to beat up on you with this post Bonaro. I know you mean well. Warning asmbandits against pursuing this matter according to the law because it's inconvenient, time consuming or expensive doesn't really provide a resolution for this adverse claim. Maybe give asmbandits some slack and see where this goes. I think you might be surprised how well the established system works when it's pursued to a resolution.

    Heavy Pans
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  5. #140
    Charter Member
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    WP

    Mar 2014
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    adverse possession.......That was part of the term that I couldn't remember in a post that I made

    On the flip side....whether it's the right or wrong move doesn't matter......I could think of a couple reasons why the other party is holding the stand that they are. It may not apply here....but would make a difference in other type situations...Intentions, belief, etc......

    I don't think ASmbandits is out of line at all....I'd lose my mind over something like this...even if it seems petty to others...I wore myself out on a property issue, but it comes down to money to fight it.

    I really didn't think anyone was making crazy threats or really trashing the other guy....I can see where he's coming from and his stand... It's just one of those things just has to go next step to get sorted out. If his intentions were solid and not out to cheat someone on purpose? Then it's just an unfortunate thing and sucks that he was mislead out of his money....it happens to all of us on something at some point...
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  6. #141
    us
    Jan 2019
    Maine
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    Quote Originally Posted by Bonaro View Post
    I'm no diplomat...just learned a few things in life. I have no idea who is rightful here, it is not my business, only my interest.

    The OP came out of the chute like a raging bull and did his best to rally the troops and the over-filer was silent. Both seem to believe they are in the right and if the OP papers are in order he probably is...I haven't seen them so I dont know. I do know that if I were the new filer and Yosemite Sam came at me like this, especially with all the veiled threats, I would sit back and wait for him to shoot his load.

    It has been my experience that most issues can be resolved with communication, mediated if necessary. People who threaten to lawyer up at the first offense seldom do and usually have never had the lesson of how painful that can be for everyone. Lawyers are only for when all else fails and the only one that wins is usually the lawyer.

    Here is one possible outcome that no one has pointed out. If the new filer decides to just keep going forward with his claim assertion and the OP continues to rage on and runs to the courts, it will be a year or more before this is heard. That is a year of attorney fees and headache for the OP with little or no response from the new filer. When the new filer finally has to defend and spend money he can just surrender and its over... but he still gets a year or maybe 2 of free mining.
    Another good reason to try and resolve this peacefully...your results may vary
    I was told a long time ago that a good businessman gets two things: a great accountant and an attorney.

    For me, I always have an attorney on retainer just for these kind of reasons; so I do not have to worry and fret, and over the years it has saved myself a lot of grief.

    The problem I see, was what I warned about in the VERY beginning of this thread, and that is in not having emotion in check. When emotion runs amuck, attorney fees get out of hand. You see that all the time with divorces (I have been through two divorces myself and now teach Divorce Care at our church).

    Theft is not easy; I know because I have endured Timber Theft, but it behooved me to keep my emotions in check so I could reiterate facts to my attorney, forest ranger, district attorney, etc. But thankfully court has a means in which to convey emotion; it is called the Victim Impact Statement. In the very beginning of this thread, I urged the robbed, original poster to spend his energies on that, instead of on a public forum. In my case, my patience paid off: I was granted the highest per month restitution ever given in this county: $1800 a month.

    Why spend energy giving your adversary ammunition against you in a court of law: save your words for the judge who can decide your fate!
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  7. #142

    Mar 2014
    NorCal
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    Quote Originally Posted by OreCart View Post
    I was told a long time ago that a good businessman gets two things: a great accountant and an attorney.

    For me, I always have an attorney on retainer just for these kind of reasons; so I do not have to worry and fret, and over the years it has saved myself a lot of grief.

    The problem I see, was what I warned about in the VERY beginning of this thread, and that is in not having emotion in check. When emotion runs amuck, attorney fees get out of hand. You see that all the time with divorces (I have been through two divorces myself and now teach Divorce Care at our church).

    Theft is not easy; I know because I have endured Timber Theft, but it behooved me to keep my emotions in check so I could reiterate facts to my attorney, forest ranger, district attorney, etc. But thankfully court has a means in which to convey emotion; it is called the Victim Impact Statement. In the very beginning of this thread, I urged the robbed, original poster to spend his energies on that, instead of on a public forum. In my case, my patience paid off: I was granted the highest per month restitution ever given in this county: $1800 a month.

    Why spend energy giving your adversary ammunition against you in a court of law: save your words for the judge who can decide your fate!
    I would agree if this were the case but I still don't feel I have flown off the handle, nor given up anything to be used against me, in fact I believe this to be the opposite.
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  8. #143
    us
    Jan 2019
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    I am new here and new to gold prospecting as well I also don't have to deal with this type of thing here on the east coast. I have read this whole thread and I don't see where the OP has done anything wrong. What I have seen is him and a few others try to educate the claim jumper and others like me who have no clue about the subject or about how things work. The OP has to protect what is his and I thought he went about it the right way. OP please keep us updated as to what happens.
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  9. #144
    us
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    Asmbandits paperwork is so solid. There is no need for a lawyer.

    This is El Dorado County. Home to the first districts in the territory and the oldest mining county in the state.

    The judge will do just fine.

    It sure as heck will be heard a lot sooner than a year out as well.

    Gerry is doing everything by the books.
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  10. #145
    Charter Member
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    Knight of the Round Bowl

    Feb 2014
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    I agree with Joseph (welcome to TNet.

    I'm also a greenhorn in all things prospecting and mining. It's hard to see how a reasonable person could read through this thread (verifying the applicable rules & laws provided by Clay D., et al) and not realize that they've made a mistake. OP generously laid a path for the other party to make an honorable retreat and it is unfortunate that they're failing to appreciate this.

  11. #146
    us
    Brian

    Mar 2014
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    There is a whole new twist to this thread that can be addressed. It in itself is a learning experience. There is basically two ways to resolve the issue. The easiest is for the two parties to share their info and allow a meeting of the minds to concur that one party is the obvious winner and the other the loser. But in situations where that does not happen, and the matter is to be resolved via adjudication; that determination to adjudicate triggers a process that is predetermined. That process actually is a tedious pain. In the end; prior to both parties court appearance, the judge will have heard/seen all the evidentiary information.....as I understand it. Clay may afford us the knowledge of how that occurs. I don't believe it is legal advice....but it is an outline of how things rightfully proceed.


    My experience has been:

    So Asmbandits sends a certified letter to Klondi and then Klondi has x amount of days to respond. After some back and forth pertaining to all that; Asmbandits then has Klondi served to appear in court. The Sheriffs office will not do the serving so Asmbandits pays a private licensed party to perform that task. A court date will be assigned and each litigant will be responsible for providing the court with their prepared evidence....and each party will have supplied the other with that very same documentation. So the judge will have the necessary information prior to the parties entering the court. Failure of either party to show up in court will automatically allow the prevailing party who appeared to win.


    I have learned from a prior "claim jump" situation that this process takes some time to occur. I believe simply saying that a person talked to someone at a BLM office or a County desk will not hold up as evidence...….I know the BLM will not offer legal advice, and all their file docs are not warranted as correct and I doubt if the County will do anything other than provide copies of recorded docs.


    No doubt this thread is and has been a good learning experience for many who may find themselves in such an "over claim" predicament.


    Bejay

  12. #147

    Mar 2016
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    I think part of the lesson should be that personal responsibility extends beyond contacting the BLM and the County Recorder and asking them if the ground is open to claiming or if a claim has been abandoned.

    Knowing the process of what it takes to file and maintain legitimate ownership of a mining claim.
    Understanding legal descriptions and the public land survey system.
    Knowing what documents are filed or recorded and the timeline involved.
    Knowing it is your responsibility to diligently search the County Records for the necessary documents, by mine name, by owner names, by document type and date range, and by legal description if available. ALL of this falls outside the responsibility of the BLM and the County.

    They simply are a repository for the records. Their job is to safeguard,maintain, and provide access. The most help Iíve gotten from a county recorders office is to get pointed in the direction of the microfiche machine, or more recently a computer.

    Itís kind of like buying property without going through a Title Company, you better know what the heck your doing and there is nobody to hold your hand.
    This Communication HEREBY Serves as OFFICIAL NOTICE That All Messages in This Thread Have Been REVIEWED. FURTHERMORE, All Messages of Positive Nature SHALL IRREVOCABLY Be Considered "LIKED" INSOFAR as Applicable to This Forum. FINALLY, All Discrimination is Strictly PROHIBITED.

  13. #148
    us
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    and this is in California...do they even enforce any laws anymore in that State
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  14. #149
    us
    Feb 2010
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    Quote Originally Posted by Bonaro View Post
    The paper trail at the County will tell the tale. All claims begin and end at the County. If the original owner has filed his annual assessment paperwork (like he said he did) then that shows possession. This will be superior to your new claim. It is important to note that both the County and the BLM will happily take your money because all they are doing is filing the document. They do not research the validity or location and there is no refund.

    You have two choices as I see it... You can concede or you can fight for ownership. I am not an attorney but If the original owner did indeed file his paperwork as claimed then you will spend a lot of money in court and eventually lose. If he failed to to file correctly you will spend a lot of money in court and then perhaps still lose. A lot of this will come down to good faith effort and if the statements in this post are true, he has done that.

    Mining claim laws are extremely complex and it is very easy for people to end up where you are. From the info posted it would seem you fell into this and that he is the rightful owner. Please understand his dismay because this is apparently his property you have apparently attempted to take. If the previous owner had called you it would be different but if you had called him it also would have been different. Imagine how you would react if someone changed the address numbers on your house and claimed as their own?

    If the paperwork has been filed properly. my advice is to apologize for the misunderstanding and offer to void your (invalid) claim. Then ask if it's ok if you can have use of his claim a couple times a year so you can take your dad out for some panning fun. If you are straight up with him, I am guessing he will oblige.

    Neither of you will enjoy settling this in court.
    I had a similar situation happen to me several years ago. I had filed on some land next to a claim I owned. I called the BLM to make sure it was open as I could not find any corner post or location monument or other signs. I filed on it and several weeks later I got a call from a very pissed off individual who said it belonged to his buddy, calling me every name in the book including claim jumper. I told him the situation of my filing and that I would check into it. In talking to the BLM whom said I could go to court agreed to look it up for me. Turned out the BLM had registered the claim in the wrong state. I called the individual back to tell him what I was told about going to court and the claim filed in the wrong state. I suggested to him that his buddy get the paperwork and signage posted. I was not going to pursue my claim. He then offered me a position to watch over one of his claims close to where I lived and I could work it anytime with my family. A year later he made me a partner in his claim and we became best friends. He has since passed away but it goes to show with some common courtesy and level heads things can work out. That being said make sure everything is checked and double checked before risking being dubbed "Claim Jumper"

  15. #150
    us
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    Quote Originally Posted by Clay Diggins View Post
    I agree that informed communication is the key to resolving disputes amicably. As a reasonable man asmbandits has been pursuing that resolution.

    In this particular situation asmbandits, the senior claimant, also has a legal duty to defend his claim against adverse possession. It's already legally a public matter due to the public record made with the County. It may or may not be wise to bring this subject to a public forum but there might be a valid argument that this has been a reasonable effort on asmbandits part to legally mitigate the damage against his mineral title.

    In California as in most states the plaintiff is required to mitigate the damages he sustains:

    Read the link above to better understand that what asmbandits has done in bringing this dispute to this forum is actually a smart move.

    If efforts to settle the matter with informed communication fails the senior claimants duty is still the same - defend his claim against adverse possession. A certified letter recording the senior claimant's knowledge of the transgression and requesting the adverse (junior) claimant to mitigate their violation is a required part of any further action. It appears asmbandits has done that.

    Should mitigation efforts fail a quiet title action in the first court of record is the only legal recourse left to the senior claimant. If he doesn't do that he will be reinforcing the cloud on his mineral title. That might work out OK but in the real world things like this are rarely resolved to everyone's satisfaction without further action.

    It appears that asmbandits is conducting his affairs regarding this mining claim in line with the law and civil procedure. Would you really suggest to him he should just give up his senior claim and submit to the adverse overclaim rather than protect his property by the only legal method he has? Court may be scary to some but the alternative of just rolling over to whoever wants to to take your stuff is very - California. Please tell me you are not so inclined.

    asmbandits is not required to have or pay an attorney. He is allowed to collect his expenses as part of a judgement in his favor. Quiet title actions regarding mining claims are usually a simple matter that often can be cleared up with a brief court appearance by a miner prepared with certified copies of his location record and annual county records. In my experience most overclaimers never even appear in court and either settle the matter before the trial date or simply don't show up to defend their adverse claim. No appearance = default judgement = win for asmbandits.

    After the win just sending a copy of the judgement to the BLM will get the adverse claim changed to CLOSED status. Recording the judgement in your claim records with the County Recorder puts potential adverse locators on public notice. Showing the court decision to a Sheriff is enough to get the adverse claimant removed from the claim and possibly jailed if he is found mining the claim.

    There is a comprehensive and long established procedure for eliminating adverse mineral claims. Reasonable dialogue is not the end of the senior claimants rights and duties to maintain their claim. Assuming the claim was worth locating and mining why would any reasonable man just give up his minerals to the first person to file some papers in an effort to take his property?

    To put it another way - if you found a stranger taking stuff from your garage would you just let them walk away with your possessions if the stranger didn't respond to communication - mediated or not?

    I'm not trying to beat up on you with this post Bonaro. I know you mean well. Warning asmbandits against pursuing this matter according to the law because it's inconvenient, time consuming or expensive doesn't really provide a resolution for this adverse claim. Maybe give asmbandits some slack and see where this goes. I think you might be surprised how well the established system works when it's pursued to a resolution.

    Heavy Pans
    I think that Asm has already done his due diligence and them some. If his paper work is as he says then he is clearly the senior claimant and the new filer has weak standing. My point is that this is a self resolving situation if both parties do nothing
    Ask has no tangible losses save for a few signs, I doubt he can recover he legal expenses when they were voluntary. If the new claimant were to take further action like filing assessment or working the claim that is different. The new claimant did not "take" anything, only made a claim. I think immediately running to court is unnecessary and certainly expensive...mostly for Asm.
    I do not suggest that Asm surrender his senior claim. I suggest he has already proven it....if the paper work is as it seems

 

 
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