# Henault Mining Co. v. Tysk

> Court of Appeals for the Ninth Circuit · November 14, 1969 · 419 F.2d 766

URL: https://www.frixlaw.com/law-library/cases/8881868

## Case

- **Full name:** HENAULT MINING COMPANY v. Harold TYSK, individually and as Montana State Director of the Bureau of Land Management, and Stewart L. Udall, individually and as Secretary of the Interior
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 14, 1969
- **Citations:** 419 F.2d 766
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Merrill
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8881868

## How later opinions describe it (automated extraction)

- holding that where no “vein or lode containing valuable mineral deposits has yet been discovered,” other exposed mineralization “simply constitute^] an indication that a vein or lode, yet unexposed, may exist at depth.”

## Opinion text

On Petition for Rehearing
PER CURIAM.
The panel as constituted in the above case has voted to modify the opinion in the respects hereinafter set forth, to deny the petition for rehearing and to reject the suggestion of a rehearing in banc.
The full court has been advised of the suggestion for an in banc hearing and of the modification proposed by the panel and no judge of the court has requested a vote on the suggestion for rehearing in banc. Fed.R.App.P. 35(b).
The petition for rehearing is denied and the suggestion for a rehearing in banc is rejected.
The opinion heretofore filed is modified in the following two respects:
1. The paragraph commencing line 3 of 768 of the opinion is modified to read as follows:
“We cannot agree. No vein or lode containing valuable mineral deposits has yet been discovered. The dikes that have been discovered through outcroppings simply constitute an indication that a vein or lode, yet unexposed, may exist at depth. A reasonable prediction that valuable minerals exist at depth will not suffice as a ‘discovery’ where the existence of these minerals has not been physically established.3 ”
2. Footnote 3 is modified to read as follows:
“Oregon Basin Oil & Gas Co., 50 L.D. 253 (1924); United States v. Strauss, 59 I.D. 129 (1945); United States v. Miller, 59 I.D. 446 (1947); Monolith Portland Cement Co., 61 I.D. 43 (1952); United States v. Snyder, 72 I.D. 223 (1965); United States v. White, 72 I.D. 522 (1965).
To the same effect is East Tintic Consolidated Mining Claim, 40 L.D. 271, 273 (1911), where it is stated:
‘To constitute a valid discovery upon a claim for which patent is sought there must be actually and physically exposed within the limits thereof a vein or lode of mineral-bearing rock in place, possessing in and of itself a present or prospective value for mining purposes.’
The decision was reversed in East Tintic Consolidated Mining Co., 43 L.D. 79 (1914). The first opinion, however, is evidently regarded by the Department as good law on the proposition quoted. It has been cited and followed in Austin v. Mann, 56 I.D. 85 (1937); United States v. Mouat, 61 I.D. 289 (1954); United States v. Pressentin & Devisees of the Martin Estate, 71 I.D. 447 (1964). The reversal appears to have been on the question of how much of a vein is sufficient for discovery purposes. The first opinion held that ‘small quartz veins, stringers or seams’ were not enough. The second opinion held that they were; that it is not necessary for the discovery vein to ‘contain mineral in commercial quantites.’ As we have noted, however, in the case before us no vein has been discovered at all.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8881868. Public record. Not legal advice.