Someone top filed my life claim

[OlBlueMule]

Someone top filed my lode claim

Hey everyone! I filed a lode claim in Alpine County California last November. Another man whom owns a claim in the same area sent me a facebook message threatening me to never file a claim next to him. Well I did with above said claim. A day after I filed with the BLM he filed with the county and BLM and back dated his location two months before mine. As I completed all three needed steps to perfect my claim before he did (both my county stamp date and BLM stamp dates are before his) it is my understanding that my claim is the the senior claim. Is this correct? I sent him a letter asking him to remove all his post and refrain from digging on my claim as I filed my claim with county and BLM before him, and he responded with a letter supposedly written by a mining consultant stating I actually top filed him since his location was before mine. Can some one please give me some advice or proof I can show this man to assure him my claim is valid and not his. I would rather avoid court if I can. I would just like some black and white law to show him. Thank you

 

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[A2coins]

I wish you luck I think you should prevail there are alot of nasty people out there just be careful and be safe. Tommy

 

[Clay Diggins]

If you staked first you are senior to him. The date of the County record and BLM filing make no difference as long as they were within the legal time period. That's 90 days from erecting a monument on the ground to file with BLM and Record your notice with the County Recorder in California. Other States have different County record deadlines.

The first prospector to put their monument on the ground wins. If you didn't have witnesses when you staked it's going to be your word against his (or whatever witnesses/proof he has).

Always always take a reliable non-claimant witness and pictures when you stake a mining claim, always. If you did that you should be good to go.

Heavy Pans

 

[Reed Lukens]

Did you take pictures of your location monument? Did you see his monuments? Were they in your pictures? Or did he just paper claim it? Do the research and go from there. It's so common these days that its ridiculous...

 

[ncclaymaker]

Use a digital camera with the correct date. It should time stamp the image. Also, bring a copy of that days newspaper... make the front page with the published date clearly displayed as your first shot. Take all of the other monument pictures and the last shot of the front page. The newspaper should create "book-ends" for the monument images. No one can reasonably cast doubt on the images. Newspapers with images are the best.

 

[Clay Diggins]

Use a digital camera with the correct date. It should time stamp the image. Also, bring a copy of that days newspaper... make the front page with the published date clearly displayed as your first shot. Take all of the other monument pictures and the last shot of the front page. The newspaper should create "book-ends" for the monument images. No one can reasonably cast doubt on the images. Newspapers with images are the best.

Good ideas that will help establish intent but not the date. Anybody can change the date on their camera. A future locator could just hold up an older edition of the newspaper. Neither one will establish the actual date of location in a court case.

What does work is having an adult human that isn't a locator present at the monumenting. Their testimony trumps all the pictures and paperwork.

Heavy Pans

 

[OlBlueMule]

I have witness that we walked the whole area to be claimed when I erected the discovery monument that there were no other discovery monuments present. I've also read several cases that in order to perfect a claim, location county and blm filing must me complete. Anybody can come in and back date their paperwork

 

[Rail Dawg]

Unfortunately Mule I do not think you will prevail on this claim.

If your claim neighbor fraudulently back-dated his claim you can't prove he did not erect a monument. Even going to the claim later and seeing no monument doesn’t mean he didn’t do it.

I know this is not what you want to hear but that is how the law works. If he chooses to lie about his Certificate of Location I don’t see how you can prevail. Now if you spend some $$$ you could get a good mining attorney to question his whereabouts on the day he says he located the claim. Prove he was 1000 miles away on that day or something along those lines.

Barring that he has the superior filing in my opinion. Like others here I deal with these situations all the time. The law does not require anything proving a claimant was there to locate except a Notice of Location and a simple monument. Diggins is right about a witness to bolster your own claim but a witness is not required by law so your neighbor is on solid ground.

Not good news.

Chuck

 

[Clay Diggins]

Unfortunately Mule I do not think you will prevail on this claim.

If your claim neighbor fraudulently back-dated his claim you can't prove he did not erect a monument. Even going to the claim later and seeing no monument doesn’t mean he didn’t do it.

I know this is not what you want to hear but that is how the law works. If he chooses to lie about his Certificate of Location I don’t see how you can prevail. Now if you spend some $$$ you could get a good mining attorney to question his whereabouts on the day he says he located the claim. Prove he was 1000 miles away on that day or something along those lines.

Barring that he has the superior filing in my opinion. Like others here I deal with these situations all the time. The law does not require anything proving a claimant was there to locate except a Notice of Location and a simple monument. Diggins is right about a witness to bolster your own claim but a witness is not required by law so your neighbor is on solid ground.

Not good news.

Chuck

I think you misunderstand the purpose of a filing or recording when locating a mining claim Dawg. The paperwork does not create a claim it's the work on the ground that proves possession and creates the claim. The date of the erection of the monument and the posting of the location on the monument establishes the claim date. The date on the paperwork is not proof of the location date. The County Record is made so the public has constructive notice of the location and locator. The BLM filing is only to start a required (since 1980) administrative mining claim case file.

From the Supreme Court:
“The recording of the notice is not an act of location, but something that follows the acts of location. The acts of location are what are done upon the ground.” Yosemite Mining Co. v. Emerson, 208 U.S. 25, 26 (1908)

Lots more court decisions saying just that. I could dig them out but I think you get the idea. If this were not true then just about anyone willing to lie could overfile any new claim and win. That would be promoting claim jumping which the law and the courts are very familiar with.

It's true that it's a logical impossibility to prove someone didn't monument on a particular day but all the courts require in a civil trial is a preponderance of the evidence to win the case. You don't have to prove the other locator did or didn't do anything, you just have to have the most believable evidence. That's why I always suggest a reliable witness and pictures when you are locating.

I don't know the details of this location. I don't know whether the claim is placer or lode or how it was staked, marked on the ground and monumented so I couldn't possibly have an informed opinion about this particular claim. I do know the courts have consistently sided with the first to locate on the ground. If the locator has a neutral witness to the facts of location they will bring superior evidence to the court than a locator with no witness. And that superior evidence is how a court decides who had possession. Remember the law of possession is the only standard used to judge disputes between claimants - first law of mining.

As in most states in California there is a law making it illegal to locate or record a false claim. The law really doesn't like claim jumpers.

Any person who willfully makes a false statement with respect to
any mining claim on the posted location notice or on the recorded
notice, or accompanying statement, is guilty of a misdemeanor and,
upon conviction, shall be punished by a fine of not more than two
hundred dollars ($200) or by imprisonment in the county jail for not
more than six months, or by both that fine and imprisonment.

Senior locators with all their ducks in a row and prepared to present the facts in a court of law generally win these cases on first hearing. In my experience the adverse junior locator rarely even shows up in court. It's one thing to make a "mistake" on a location notice date and a whole different can of worms to be caught lying in open court.

I don't know how a general practice lawyer could add anything but billings to a case like this. Most lawyers will reply with a blank stare when you mention the law of possession, that's not something they are familiar with or trained for. These cases are decided on the law (of possession) and the facts. The laws are simple and if the facts can be presented with confidence the odds are very good the senior locator will win.

Heavy Pans

 

[Rail Dawg]

Great lesson there Clay. As always I learn something new.

In my computer notebook I have a folder named "Clay Diggins Words of Wisdom". Whenever you post like you did above I cut and paste into that folder. Then when I have an extra few minutes I open it and simply read lol.

What you put out is pure gold.

Chuck