CHAPTER 4 PROOF OF PERFORMANCE

• Jurisdiction: United States

Annual Assessment Work
(Sep 1970)
CHAPTER 4
PROOF OF PERFORMANCE
Douglas L. Grant
Associate Professor of Law University of Idaho College of Law
Moscow, Idaho

I. BURDEN OF PROOF

A. Allocation of Burden

The burden of proof concerning performance of assessment work generally is upon the party contending that the required work was not done.¹ This principle is typically expressed in the cases by a statement that the burden of proof is upon the party asserting a forfeiture,² and the reason given is dislike

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of forfeitures.³ The cases have devoted little attention to the distinction between the initial burden of producing evidence and the burden of persuasion,⁴ but it appears that the party charging a forfeiture bears both burdens.⁵

In New Mexico, there is an exception to the general principle by virtue of a statute which provides that failure of the owner of an unpatented claim to file an affidavit of assessment work within sixty days after the close of the assessment year throws

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the burden of proof upon him to show that the necessary work was done.⁶ In group assessment work situations, the general principle is subject to an important qualification. The burden of proof in the first instance is still upon the party asserting a forfeiture, but he makes out a prima facie case by showing that no work was performed within the boundaries of the claim in question; then the burden shifts to the prior locator to prove that he performed work for the claim outside of its boundaries and that the work in fact tends to benefit that claim.⁷ The rationale for this shift of the burden of proof has been explained as follows:⁸

It is not a legal presumption that all labor done outside a claim by the owner is performed as representation work [i.e., assessment work]. If so performed,

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and it was intended as the required annual labor, the fact must be peculiarly within the knowledge of the claimant; and one charging a forfeiture can hardly be expected to be informed as to all work which may have been performed off the claim, or as to the intention or purpose thereof.

Wyoming has a unique burden of proof rule for group work upon contiguous placer claims under the same ownership. In Simmons v. Muir,⁹ the Wyoming court construed a state statute¹⁰ authorizing group work upon such placers as creating "a presumption that the work on one of the group-claims benefits all the others, and that to show the contrary would devolve upon the junior locators,"¹¹ who were asserting forfeiture of the prior claims. The decision has been criticized on the ground that the state statute mentions no presumption and appears merely to be declaratory of federal law concerning the performance

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of work upon contiguous claims.¹²

B. Quantum of Proof

The cases say uniformly that a forfeiture cannot be established except upon clear and convincing proof of the failure of the prior owner to do the required annual assessment work.¹³ In Big Three Mining & Milling Co. v. Hamilton¹⁴ the California supreme court sought to qualify this principle by stating, although arguably in dictum:¹⁵

While it is often said that a forfeiture can be shown only upon clear and convincing evidence, "the proof is made as required whenever it is shown by a preponderance of the evidence that the full amount of labor or improvements was not made or expended within a given year."

The Court's quotation is from Snyder's treatise on MINES AND MINING, which cited no authority for the quoted proposition. The third edition of Lindley

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picks up verbatim the Big Three Mining & Milling Co. language set out above and cites four more cases as additional authority,¹⁶ none of which is stronger than support by implication.

The entire line of authority, from Snyder through Big Three Mining & Milling Co. to Lindley, is questionable in view of the well-established doctrine of the law of evidence that clear and convincing proof is a quantum of proof lesser than the criminal law standard of proof beyond a reasonable doubt but greater than the usual civil standard of proof by a preponderance of the evidence.¹⁷ The rationale typically advanced for requiring proof of nonperformance of assessment work by clear and convincing evidence is judicial reluctance to enforce a forfeiture.¹⁸

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This, too, would suggest that the quantum of proof should be higher than the usual civil standard.

II. EVIDENCE OF PERFORMANCE

A. Assessment Work Affidavits

Statutes which authorize the filing or recording of assessment work affidavits are found in the eleven coterminous western public land states, plus Alaska and Arkansas.¹⁹ The affidavit procedure is available for both lode and placer claims, except possibly in Wyoming where the affidavit statute is one of a series of assessment work code provisions, all the rest of which clearly pertain to placer claims only. The Wyoming affidavit statute should be construed to apply to lodes as well as placers, though, since it refers to "assessment work for any mining

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claim."²⁰

The purpose of the statutory affidavit procedure is to provide a convenient and inexpensive means of preserving evidence that annual assessment work has been performed.²¹ Except in Wyoming, a filed or recorded affidavit is by statute prima facie evidence of the performance of the work or making of the improvements described therein.²² This means that if such an affidavit is introduced into evidence and is not controverted by the adversary, the trier of fact must find that the work was performed as stated in the affidavit.²³ The use of the phrase "prima facie evidence" in statutes is curious, though, because according to Wigmore that phrase generally is used to mean either: (1) that the party with the burden of persuasion has made a

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strong enough case to be entitled to a directed verdict if his adversary produces no more evidence, or (2) that the party with the burden of producing evidence has, in fact, produced enough evidence to avoid an adverse directed verdict or nonsuit and to get to the jury.²⁴ Yet, as noted earlier,²⁵ it appears that generally the burden of persuasion, and, in the first instance, at least, the burden of producing evidence are not upon the owner of an unpatented claim who files an affidavit but rather the person asserting that the necessary work was not done.

A filed affidavit still has evidentiary value even if contradicted by an adversary. Furthermore, depending upon the strength of the contradicting evidence, such an affidavit may support a finding by the trier of fact that annual labor was performed as described therein.²⁶

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An assessment work affidavit, when offered at trial to prove that annual work was done, is hearsay.²⁷ So the assessment work affidavit statutes, except in Wyoming, perform double duty by providing what amounts to an exception to the hearsay rule for such affidavits and by giving them the prima facie evidentiary effect just discussed. An affidavit not in full compliance with the applicable statute may still be entitled to the benefit of the statute if the defect is viewed as insubstantial.²⁸ A significant variation from the statute, however, may make the affidavit inadmissible.²⁹ To avoid controversy,

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then, and be assured of the benefit of the affidavit procedure, assessment work affidavits should be made and filed in full compliance with the applicable statute. This requires careful attention both to the contents of the affidavit and to the time, place, and method of filing.

1. Contents of affidavit. The assessment work affidavit statute of each state specifies the required contents. In Arizona, Arkansas, Colorado, and Idaho, the statute even sets out an official affidavit form.³⁰ Because the required information varies from state to state, an affidavit form which is good in one state cannot automatically be used in another. The requirements vary too much to detail here, but since the statute of the state in which a claim is situated should be closely followed, the state statutes have been collected and are set forth in Chapter 1 of this Manual.

The affidavit statutes of Arizona, Idaho and Oregon expressly allow a single affidavit to include work for a number of claims if the claims are all

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under one ownership and: (a) in Arizona, are contiguous and constitute a group, (b) in Idaho, are in the same mining district, and (c) in Oregon, constitute one group. There is also common-law authority for inclusion of more than one claim in a single affidavit.³¹ Costigan suggests, however, that except for group assessment work all risk of controversy should be avoided in jurisdictions without authority specifically in point by using a separate affidavit for each claim.³²

Are there any advantages to including multiple claims in a single affidavit? In at least two states recording fees may be reduced,³³ but in view of the nominal amount of recording fees the money saved will seldom be significant unless a rather large number of claims is involved. In an early Idaho case it was held that where the affidavit statute was silent upon the multiple claim question, an affidavit could include more than one claim but a separate recording fee

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had to be paid for each claim.³⁴ This case raises doubts about the possibility of fee reduction in states without express statutory authorization for it. Use of a single affidavit for multiple claims, of course, can reduce clerical work. This is most likely to be significant in the case of group work, where the affidavit, to be maximally effective, should contain recitals demonstrating in some detail how the work tends to develop all claims in the group.³⁵

2. Filing Procedures. The state statutes, of course, fix the local procedures governing the filing of affidavits.

(a) Time for Filing. The time for filing an assessment work affidavit with the appropriate public record...