Masek v. Ostlund

358 P.2d 100, 1960 Wyo. LEXIS 86

• Court: Wyoming Supreme Court
• Decided: December 30, 1960
• Docket: 2936
• Status: Published

Opinions

Mr. Justice PARKER

delivered the opinion of the court.

This is an action by John C. Ostlund and Axel R. Ostlund, plaintiffs, against John L. Masek, defendant, seeking an accounting of the proceeds of mineral ore taken from a mining claim belonging to plaintiffs known as Sue 3 and asking for exemplary damages. The petition alleged that plaintiffs on January 1, 1955, filed a notice of location of unpatented lode mining claim known as Sue 3 in sec. 17, T. 44 N., R. 75 W., sixth principal meridian, Campbell County, Wyoming; that defendant on January 10, 1955, filed a notice of location on the same land; that the dispute as to ownership of the mining claim resulted in a suit to quiet title in the District Court of Campbell County wherein it was adjudged that the title to the mining claim Sue 3 was in plaintiffs; that in 1955 and 1956 defendant in reckless disregard of plaintiffs’ rights trespassed upon and extracted minerals from plaintiffs’ property, shipping ore therefrom in an amount exceeding $5,000.

Upon the trial of the cause before the court acting without a jury, judgment was given for plaintiffs in the sum of $5,231.99, the same being the proceeds of the mineral ore sold by defendant as shown in Plaintiffs’ Exhibit 1, the settlement sheets from the purchaser. Defendant has appealed, urging that there was a failure of proof and that there is no substantial evidence upon which the judgment can be based. He insists that the mineral ore which he admitted having mined and sold came from his Campbell 1 and not from plaintiffs’ Sue 3. Thus, the question before the trial court was the position of the mining operations as it related to the two claims, and we review the record to determine the propriety of the findings of the court.

There was admitted in evidence the pleadings and judgment of a previous suit in the same court wherein the Ostlunds as plaintiffs sought to quiet title to Sue 3 against defendant Masek. In that action the petition did not give the description of the claim but merely said that it was located in sec. 17, T. 44 N., R. 75 W., sixth principal meridian, Wyoming. The petition, by court order, was later made more definite and certain by a certified photostatic copy of the location notice of Sue 3 being attached to the petition.¹ The judgment recited a trial on the merits and decreed title to Sue 3 (described only by section, township, and range) to be in the Ostlunds. Although the judgment did not give a description of the claim, it seems to be a generally accepted practice that such a judgment may be aided by the pleadings. Moore v. Unknown Heirs of Gilchrist, Tex.Civ.App., 273 S.W. 308; 1 Freeman, Judgments, 5th ed., p. 165. Apparently, there was a record of the testimony in the quiet title action since there is' occasional reference to questions there asked, but it was not offered in the present case, and seemingly this court is expected to accept the judgment in the quiet title action without any knowledge of its details.

At the trial of the instant case, John C. Ostlund, one of the plaintiffs, telling of what he and his brother had done, said:

“We placed the — Our discovery was in the same general location that three previous discoveries had been. It isn’t a coincidence necessarily, but our stakes coincided with them. There was a discovery notice there — ah—sometime in 1952. And there was a discovery notice there sometime in 1954. And there was an additional discovery notice there from Dr. Masek dated around September 27th or 29th of 1954. And that is what our discovery notice was, that is the discovery on that claim for the uranium in place. We used our east boundary of the claim — ah—was the ‘B’ Claims and from that general discovery what was made — ah—our stakes naturally coincided with the previous stakes that had been there. Campb No. 1 stakes were — at that time — were there and in place. The reason we went ahead and staked it was because we thought the claim had been abandoned as it had been done by the two previous locators.

* * * * * *

“ * * * My brother and I surveyed the claims to this extent, by use of a transit and a stadia rod we took a known point — which was the section corner — the southeast section corner of that particular section, 17. At the time we were on the grounds a chain was not available so we borrowed a stadia rod and transit. And we determined the distance from the section corner — ah— due west. And then in turn we determined the distance — ah—north to locate the southeast corner of that claim.”

He said the southeast corner of the Sue 3 claim was 650 feet west and 140 feet north of the southeast corner of section 17 and that “the balance of the description was done mathematically with the use of trigonometry.” He further stated that it was cold and windy on the day they conducted their survey and admitted that the instruments used were not as accurate in such weather as they would commonly be. He also conceded that neither he nor his brother were qualified surveyors although he stated that each had some education and experience in the field. He said they later found their discovery pit filled in and their stakes removed but made no attempt to replace the stakes.

Dale Ruby, a rancher in the area who had staked the B Claims, was asked:

“Did you see any stakes belonging to Campb No. 1 with regard to the east side of Campb No. 1, Sue No. 3, and the west side of the ‘B’ Claims 1, 2, 4, and 5?”

He answered:

“Yes, they was the common boundary.”

Questioned as to where the mining took place, he said, “I’d say approximately 350 feet west of the east boundary. West boundary of the ‘B’ Claims.”

Defendant testified that he staked his Campbell 1 on November 9, 1954, but did not file his location notice until January 10, 1955. In May 1955 he arranged with Zwill, a licensed surveyor, to survey the claim, accompanying him to the premises and advising him where the stakes were. Masek filed an amended location notice on May 26, 1955, based on Zwill’s map of the premises, a copy of which was introduced in evidence without objection. His amended notice showed substantially the same position as the previous one, but the directions shown thereon were specific; both notices listed the southeast corner of the claim to be some 1,096 feet west of the southeast corner of section 17, supra. He admitted that some time after January 1, 1955, he went upon Campbell 1, found a pit dug and fenced about fifty feet east of his pit which he had dug on November 9, 1954, and filled it in. He also admitted mining and shipping the ore listed on the settlement sheets which were introduced in evidence.

Morris L. Carter, a licensed surveyor, testified that on August 4, 1957, he “resurveyed” Sue 3 in accordance with plaintiffs’ notice of location, found no Sue stakes, but discovered three corner and two side stakes of Campbell 1. According to his testimony and the map prepared by him, which was introduced as an exhibit, the southeast corner of Campbell 1 shown by the stakes he found was 1096.3 feet north, 76 degrees, no minutes, west of the southeast corner of section 17, supra, or approximately 432 feet westerly of the corresponding corner of Sue 3 as shown on plaintiffs’ notice of location and as surveyed by him.

During the process of the trial, the court at the suggestion of counsel made a trip to the premises for personal observation.

An analysis of the above evidence discloses several matters over which there is no controversy:

(1) Plaintiffs assert title only to that property which was described in their notice of location and embodied in their petition in the suit to quiet title.

(2) Insofar as the staking was concerned, the Campbell 1 and Sue 3 claims were completely overlapping, the stakes of each being along side those of the other.

(3) The east common boundary of Sue 3 and Campbell 1, as they were staked, constituted the west boundary of B Claims 1, 2, 4, and 5, the accurate position of which was not disclosed.

(4) Defendant took mineral ore in the amount of $4,208.20.²

Taking all of the testimony at face value with the possible implications, there is a direct conflict as to the position of the east common boundary of the disputed claims, plaintiffs testifying that the southeast corner of Sue 3 commenced 650 feet west and 140 feet north of the southeast corner of section 17, supra, and the testimony of Carter as well as his map and the map of Zwill indicating that the southeast corner of Campbell 1 was 1096.3 feet northwesterly of the southeast corner of section 17, supra. Since plaintiffs testified that they placed their stakes so as to coincide with those of defendant, it follows that one or the other of the location notices of the parties was in error, that is, did not state a correct description of the claim as staked. Thus, unless the trial court considered that plaintiffs were entitled to Sue 3 as it was staked and regardless of the description listed in the location notice (an argument which appears nowhere in the record), there was only one basic determination to be made, Who erred in the location notices?

There are two factors which would seem to have a bearing upon this: Defendant’s notice of location dated November 9, 1954, filed of record January 10, 1955, showed the same description as his amended location notice filed May 26, 1955, and was substantially the same as the surveys made by Carter and Zwill, each based upon the actual position of the Campbell 1 stakes. The location notice of plaintiffs was apparently based upon the computations which the two had made after their discovery and a determination that they would stake Sue 3 exactly over Campbell 1. They were not qualified surveyors. Moreover, it was admitted that the instruments were not as accurate when used in cold and windy weather as they would commonly be.

Undoubtedly the actual position of the staking of the disputed claims could have been established more definitely in several ways, e. g., by showing what part of the west lines of the B claims formed the east line of the boundary of the disputed area and informing the court precisely where such line was.

In evaluating this cause from the record before us, we wish, as we frequently do, that the trial court might have made findings of fact and conclusions of law which would inform us of the truths which the evidence disclosed to that court and of the rules by which the court interpreted them. We would also have been better satisfied had the judgment in the quiet title action been made meaningful by a presentation of the record which served as its basis. However, we must proceed as best we may without such information.

In consideration of the record we must bear in mind that autoptic inspection supplies evidence³ and that a trial court’s findings after inspection of the questioned premises are entitled to special weight.⁴ Also, as plaintiffs point out, an appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it.⁵ In construing this rule, we have previously noted that it has limitations, and does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience, giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question of whether the judgment is reasonably and substantially sustained by the evidence.⁶

All of the evidence adduced in the trial of this cause, analyzed in the light of the applicable law, shows the conflicting claims to have been staked one on top of the other, but the notices of the two locations described different property. The actual position of the coincident two boundaries of the two claims as staked was shown only alternatively, one possibility being a northwesterly line beginning at a point 650 feet west and 140 feet north of section 17, supra, and the other a similarly directed line beginning at a point 1063.74 feet west and 265.217 feet north of the southeast corner of section 17, supra.

If the plaintiffs’ testimony is to be believed literally, then the former is true; but if the testimony of the surveyor is correct, then the latter is true. A fair interpretation of the evidence in the light of the rule stated in the Arbogast case would not permit the acceptance of plaintiffs’ testimony over that of a professional surveyor whose map was unchallenged and was supported by a second surveyor’s map admitted without objection. This is especially true when as previously mentioned the exact position of the line was susceptible of proof beyond question. Accordingly, we are obliged to hold that the judgment is unsupported by the evidence and the case must be reversed.

We are, of course, authorized to order the entry of a final judgment for defendant, but this is a situation which by reason of nondisclosure of certain facts would thus produce a result founded on speculation rather than justice. It is well established that an appellate court has dis< cretionary power to remand a cause for a new trial so as to prevent a failure of justice.⁷ It is, therefore, ordered that the cause be remanded with directions that a new trial be granted in order that there may be a full disclosure of all facts relevant to its fair adjudication.

Reversed and remanded.

BLUME, C. J., concurs.

1 . The description given in the attachment was: “Beginning at a point which is the SE corner of Sec. 17, T.44, N.R., 75, W. 6th P.M., Wyoming, thence 650 feet in direction West; thence 140 feet in direction North; * * * thence 600 feet in direction North 120° West; * * * thence 1500 feet in direction North 30° West; * ⅜ * thence 600 feet in direction North 60° East; * * * thence 1500 feet in direction North 150° East * *

2 . This figure omits the costs of transportation which were included in the $5,-231.99 awarded by the judgment.

3 . Casper Lodge No. 22, I.O.O.F. v. Corbridge, 74 Wyo. 244, 286 P.2d 1047.

4 . Erickson v. Hudson, 70 Wyo. 317, 249 P.2d 523.

5 . Jacoby v. Town of City of Gillette, 62 Wyo. 487, 174 P.2d 505, 177 P.2d 204, 169 A.L.R. 502; Willis v. Willis, 48 Wyo. 403, 49 P.2d 670; Id. 49 Wyo. 296, 54 P.2d 814.

6 . Steadman v. Topham, Wyo., 338 P.2d 820; Montgomery Ward & Co. v. Arbogast, 53 Wyo. 275, 81 P.2d 885.

7 . Security-First Nat. Bank of Los Angeles v. King, 46 Wyo. 59, 23 P.2d 851, 90 A.L.R. 125; Brown v. Maryland Casualty Company, 111 Vt. 30, 11 A.2d 222, 129 A.L.R. 1404. And see Loos v. Mountain Fuel Supply Co., 99 Utah 496, 108 P.2d 254; Commercial Standard Ins. Co. v. Remay, 58 Idaho 302, 72 P.2d 859, 120 A.L.R. 1; Bergeron v. Travelers Insurance Company, La.App., 113 So.2d 302; 3 Am.Jur. (1936) Appeal and Error § 1210; 5B C.J.S. (1958) Appeal and Error § 1933.