Rundle v. Republic Cement Corporation

341 P.2d 226, 86 Ariz. 96, 1959 Ariz. LEXIS 143

• Court: Arizona Supreme Court
• Decided: June 17, 1959
• Docket: 6591
• Status: Published

Opinions

UDALL, Justice.

This is an appeal by Edgar Rundle, et al., defendants below, from a judgment entered in favor of plaintiff-appellee, Republic Cement Corporation, quieting its title to certain placer mining claims on unappropriated government land. The primary question presented is whether the evidence, taken in a light most favorable to plaintiff, sustains the findings of fact and judgment entered therein. The parties will be referred to as plaintiff or Republic, and defendants.

The plaintiff corporation brought this action to quiet its title, as against defendants’, to twenty-eight unpatented mining claims theretofore located by Burney C. Prigge and seven other citizens of the United States from whom it deraigned title. The paramount title of the United States was admitted, both in the complaint and answer. The complaint alleged that defendants, without right, claimed to have some interest in or title to said mining claims. The answer, after making certain denials, alleged that defendants own as “mining claims” most of the ground covered by plaintiff’s claims and in the prayer they ask “* * * that title of these defendants to their mining claims be quieted against the plaintiff.” In the case of Saxman v. Christmann, 52 Ariz. 149, 79 P.2d 520, this court, we believe, erroneously treated similar allegations in an answer to a quiet title action as being sufficient to warrant defendants asking for affirmative relief.

On the issues thus framed a jury was empaneled and the trial proceeded. At the close of plaintiff’s case the issue of fraud against the government in the location of the claims in question was formally raised by defendants through a proposed amendment to their answer. At first this trial amendment was denied but was later granted. Defendants called no witnesses. By agreement of counsel the jury was discharged and the matter submitted to the court upon cross motions for judgment.

While the location notices are all signed by Burney C. Prigge in behalf of himself and the other seven locators, the law implies the right of one person to locate claims in the name of another and no express authorization is necessary. It is also well settled that an association of eight persons may locate 160 acres in a single claim, Rooney v. Barnette, 9 Cir., 200 F. 700; Hall v. McKinnon, 9 Cir., 193 F. 572; however, there is no statutory limit to the number of claims that may be thus located.

Before entering final judgment in the matter the court made formal findings of fact which may be summarized as follows: plaintiff corporation was authorized to do business in the State of Arizona; the eight locators (Burney C. Prigge, et al.) entered unappropriated public domain and, by posting notice of location upon the ground, located the claims now in question; the lands located were discovered to have, and did contain, valuable deposits of limestone and other minerals suitable for and adapted to the manufacture of cement; the locators posted notice of location on each of said claims as by law provided; within 60 days copies of all of said notices were recorded in the office of the County Recorder of Yavapai County and within the same period the locators did carefully mark and establish the boundary lines to all of said claims by creating substantial monuments thereon; the eight locators did sell, transfer and convey by a good and sufficient deed, and for a valuable consideration, their interest in said mining claims to Burney C. Prigge; the latter then conveyed, for a valuable consideration, all of said claims to the plaintiff corporation.

The evidence stands uncontradicted that a very substantial sum of money was expended in connection with the location and development of these placer claims. This covered such items as expenditures for monumenting, core drilling, surveying, geologist, roads, erection of a small building, shipment of raw material, etc. It is true that practically all of such funds were advanced directly or indirectly by locator Burney C. Prigge. The defendants seek to make a point of the fact that the other seven locators did not share equally in the fruits of the venture. It is significant that none of them — insofar as the record shows ■ — have complained of unfair treatment. It is not denied that at the time they signed the quit-claim deeds to Prigge they were each paid ten dollars in cash, which in law is a valuable consideration. Moreover, each of them are substantial owners of capital stock in the plaintiff corporation which now asserts its ownership of said claims. It would seem that these locators, all live persons — not fictitious dummies — do not need the defendants to fight their battle for them, nor can any contention now be made as to their unequal interests.

We hold there is no merit to the numerous assignments of error and supporting propositions of law that are directed to the insufficiency of the evidence to support the findings of the court, supra, as to the monumenting, locating and transferring of the claims in question. This for the reason that it manifestly appears upon the face of the documentary exhibits and from the uncontradicted testimony that all of the various steps necessary to locate said mining claims, and transfer same, were meticulously complied with.

In order to test the correctness of the two remaining legal premises upon which defendants’ appeal rests, it is necessary to first determine precisely the nature of the action here involved. When that is answered the rules of law that govern will be manifest.

Defendants seek to have applied the equitable principles of law governing the ordinary quiet title action where the fee title is at issue and “adverse suits” which involve quieting title to mining claims after application for patent has been made. On the other hand there is a wealth of authority for the proposition that controversies such as the instant suit are determined by “the law of possession.”

That there is a distinction is made clear from the following excerpts quoted from American Mining Law, Fourth Edition (edited by A. H. Ricketts), Vol. I, Ch. XIX, §§ 382, 383, and 384:

Section 382. Introductory

“The main difference between an ‘adverse suit’ and a ‘possessory action’ is that in an adverse suit the judgment therein affects the title to the ground in dispute as between the parties thereto and the government and the judgment in a possessory action affects only the title to the ground as between parties litigant. As a general rule an action in ej ectment, or a suit to quiet title, as circumstances may dictate, is as proper in the one class of cases as in the other, * *

Section 383. Actions

“A possessory action for the recovery of any mining title or for damages to any such title is adjudged by the law of possession between the parties, although the paramount title to the land is in the United Statés. This leaves the United States entirely out of consideration, and neither party can take advantage of the paramount title of the United States either to sustain his own title or to defeat that of his adversary.”

Section 384. Law of Possession

“The law of possession means that the prior location and occupation carry with them the prior and better right; or, in other words, the possessory right is the right to explore and work the property under the existing law and regulations. All controversies as to mining claims before patent must be determined by the law of possession. íjí ijt 5ft }f

We hold the instant case, while denominated a quiet title suit, is in reality properly classified as a “possessory action” and not an “adverse suit”.

This leads us to a discussion of defendants’ first proposition of law, viz.:

“In quiet title actions plaintiff must recover on strength of his own title and not on weakness of the defendants’ title.”

The following quote from their brief is indicative of how strongly defendants rely upon this proposition, viz.:

“This proposition of law is the foundation of appellants’ appeal, and' the remaining propositions are built thereon. Appellants are entitled to judgment against Republic because the evidence in the trial court taken in the light most favorable to Republic disclosed fatal defects (i. e., fraud) in Republic’s title. Because of these fatal weaknesses in Republic’s title it was not necessary for appellants to put on evidence of their title to be entitled to judgment in their favor.” (Emphasis and insert supplied.)

Were this an “adverse suit” defendants’ proposition of law would be correct; however, we submit there is a well-recognized exception to the general rule that governs in a “possessory action” such as this:

“ * * * The ordinary rule of law that the plaintiff must recover on the strength of his own title and not on the weakness of that of his adversary does not apply. The rule in possessory actions is that the better title prevails.” Section 384, supra, American Mining Law.

“ * * * it must be remembered that in possessory actions to recover unpatented mining claims the rule of ejectment, namely, that the plaintiff must recover on the strength of his own title, and not the weakness of his adversary’s, does not apply. In actions of this sort the better title prevails. Thus it is said in Strepey et al. v. Stark et al., 7 Colo. 614, 5 Pac. 111: ‘It is further to he observed that the rule in ejectment that the plaintiff must recover, if at all, on the strength of his own title, and not upon the weakness of that of his adversary, is held not to apply to possessory actions for mining claims, where neither party has strictly speaking any legal title, but when the prior possession of plaintiff is pitted against the present possession of the defendant. “Practically the real question involved in all such cases is: Which, as against the other, has the better right to mine the land in question ?” ’ * * (Emphasis supplied.) National Mill & Min. Co. v. Piccolo, 54 Wash. 617, 104 P. 128, 130.

To the same effect see also: Parker v. Belle Fourche Bentonite Products Co., 64 Wyo. 269, 189 P.2d 882, 884; Oroville International Salts Co. v. Rayburn, 104 Wash. 137, 176 P. 14; Lucky Four Gold Mining Co. v. Bacon, 62 Colo. 342, 163 P. 862.

Defendants quote a statement appearing in Saxman v. Christmann, supra, as authority for their position. It does appear that the general rule as to the necessity for reliance upon the strength of one’s own title was there set forth in an obiter-dicta statement. We have examined the original record and nowhere does it appear that such issue was raised, nor was attention called to the exception to the rule. Furthermore we find that the statement made was wholly unnecessary to the decision rendered.

We hold it is the exception rather than the general rule that applies to the instant case.

When we limit our consideration to the question as to who has the better title, i. e., plaintiff or defendants, it becomes obvious that plaintiff does and should therefore prevail in this action. This for the reason that its predecessors in interest had meticulously taken all of the steps necessary to locate said mining claims — which were later conveyed to the plaintiff corporation— whereas, the defendants did not see fit to offer any evidence as to the validity of their alleged conflicting claims.

As between the parties pitted against one another in this lawsuit the defendants are in effect saying to plaintiff, we need not establish our right but you cannot prevail as your claims are invalid because of locators’ fraud against the government. Such a position, we believe, violates the principle that the government is to be left entirely out of consideration and that neither party can take advantage of the United States’ paramount title to “either sustain his own title or to defeat that of his adversary.”

Upon the issue of fraud raised by defendants’ trial amendment to their answer the trial court made this express finding, viz.:

“The court finds, as a fact, that there was no fraud in connection with the original location of said placer claims by the original locators, and that no fraud was perpetrated by plaintiff or any of its officers, agents, or employees in the original location of said mining claims, and finds the issues in this respect against the defendants and each of them and in favor of plaintiffs.”

By an appropriate assignment of error this finding is attacked on the ground that the undisputed evidence shows that a fraud was perpetrated upon the government. In support of such assignment two propositions of law are advanced by defendants, viz.:

“2. The attempted location of placer -claims by ‘dummy’ associations renders the attempted locations void rab initio’ for fraud.

"“3. The question of the fraud of a •dummy association may be raised as between two private parties.”-

'This squarely presents the legal question •as to whether in this' “possessory action” the issue of fraud against the government may be raised as between these private litigants.

There are only two reported cases, that •We have been able to find, where this precise question of fraud was presented and directly passed upon by an appellate court. The New Mexico Supreme Court in 1911, in the case of Riverside Sand & Cement Mfg. Co. v. Hardwick, 16 N.M. 479, 120 P. 323, 324, stated:

“ * * * (this) is a matter in which the government alone is interested, and of which it alone can take advantage. i{i % S|< fJ

The Idaho Supreme Court in the case of Brassey v. Peck, 1942, 63 Idaho 609, 123 P.2d 1014, 1015, stated:

“The fact, even though true, that a ‘dummy’ is used in the location of a mining claim, is not available to a private litigant, and is ‘a matter in which the government alone is interested, and of which it alone can take advantage * * * the law has been finally settled that the government alone is concerned, and the same is not relevant in a contest between individuals, except in adverse proceedings wherein the government is a silent party.’ ” (Citing cases.)

Moreover, in an analogous situation this court, in the mining case of Perley v. Goar, 22 Ariz. 146, 195 P. 532, held that the question of a qualification of the locator of a mining claim, so far as the validity thereof is affected by his alienage, is one which cannot be raised or determined in action between private individuals wherein the United States is not made a party. To the same effect see also Wilson v. Triumph Consol. Min. Co., 19 Utah 66, 56 P. 300, ; and McKinley Creek Mining Co. v. Alaska-United Mining Co., 183 U.S. 563, 22 S.Ct. 84, 46 L.Ed. 331.

The defendants rely upon the fact that Prof. Lindley, author of “Lindley on Mines”, in his 1914 Third Edition, has taken a different position than that earlier espoused in the Second Edition published in the year 1903; coupled with an implied holding in the “possessory action” case of Cook v. Klonos, 1908, 164 F. 529 (that arose in Alaska which has special mining laws enacted by the Congress), wherein the Ninth Circuit Court of Appeals in 1908 affirmed the judgment of the lower court which was based upon fraud in the location of certain mining claims. The right of a private litigant to raise such a question in this type of case is not discussed therein; it was just taken for granted.

The other cases cited in support of the proposition that fraud against the government may be here asserted are readily distinguishable. For instance, Nome & Sinook Co. v. Snyder, 9 Cir., 187 F. 385; Gird v. California Oil Co., C.C., 60 F. 531; Durant v. Corbin, C.C., 94 F. 382, are “adverse suits” arising out of application for patent— where the government is a silent party. The following are equity suits brought directly by the United States to cancel out— on the grounds of fraud — located claims or patents previously issued, viz.: United States v. Chanslor-Canfield Midway Oil Co., D.C., 266 F. 142; United States v. Brookshire Oil Co., D.C., 242 F. 718; United States v. California Midway Oil Co., D.C., 259 F. 343, and United States v. Trinidad Coke & Coking Co., 137 U.S. 160, 11 S.Ct. 57, 34 L.Ed. 640, 641. We submit that such avenue is readily available to the government in this matter if the facts so warrant.

In accord with the great weight of authority we hold that in this “possessory action” the defendants were not entitled to raise the issue of fraud as it was a matter of which the government alone could take advantage. Having reached this conclusion it becomes unnecessary for us to review or analyze the evidence bearing on fraud. The amendment to the answer raising such issue was improperly allowed even though the end result reached was correct.

Judgment affirmed.

PHELPS, C. J., and JOHNSON, J., concur.