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State ex rel. Mullen v. Hedrick

Supreme Court of Arizona

January 24, 1938

STATE OF ARIZONA ex rel. CHARLES P. MULLEN, State Land Commissioner of the State of Arizona, Appellant,

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr. Joe Conway, Attorney General; Mr. Elmer C. Coker, Mr. Otto E. Myrland and Mr. Charles P. Elmer (of Counsel), for Appellant.

Mr. Francis M. Hartman and Messrs. Knapp, Boyle & Thompson, for Appellee.


Page 367

[51 Ariz. 181] LOCKWOOD, J.

This is an appeal by the State of Arizona, on the relation of Charles P. Mullen, as state land commissioner, hereinafter called plaintiff, from a judgment in favor of Jerry Hedrick, hereinafter called defendant, refusing to cancel a mining operator's lease granted by plaintiff to defendant covering [51 Ariz. 182] certain lands belonging to the State of Arizona, located in a part of section 2, township 20 north, range 20 west, G. & S.R.B. & M.

There are six assignments of error. The first is that the court erred in refusing to adopt some seventeen findings of fact submitted by the plaintiff; the second that the court erred in refusing to adopt five conclusions of law proposed by plaintiff; the third that three findings of fact made by the court are contrary to the evidence; the fourth that one particular finding of fact set forth therein is not sustained by the evidence; the fifth that the court erred in adopting three conclusions of law proposed by defendant; and the sixth that the court erred in refusing to permit a witness to answer four specific questions. We shall apply to them three tests: First, were the findings of fact made by the trial court sustained by the evidence; second, were they sufficient to cover all the issues of fact necessary for a determination of the law applicable to the case; and third, did the court properly apply the law.

This action arose out of the following situation. Defendant herein applied to the State Land Department for a lease of certain mineral lands in section 2, supra, under the provisions of section 2973, Rev. Code 1928, which reads as follows:

"Lease of mineral lands; forfeiture. The department may execute leases and contracts for the leasing of lands containing gold, silver, copper, lead or other valuable minerals; shale, slate, petroleum, natural gas, or other valuable natural deposits. Any citizen of the United States finding valuable minerals upon any unsold lands of the state may apply to the department for a lease of an amount of land not exceeding the amount and dimensions allowed by the mining laws of the state and of the United States. The manner of locating a mineral claim upon state land shall be in accordance with the law of the state regulating the location of mineral claims on government lands. For the [51 Ariz. 183] purpose of developing such claims, the applicant shall, upon the payment of five dollars for each claim, receive from the department a lease for two years, before the expiration of which time the department may enter into a contract with the lessee for the further development and operation of any mine upon such claim, upon such terms as may be agreed upon. Not more than fifty tons of ore shall be removed from the premises until such contract has been executed. The lessee may cut and use the timber upon the claim for fuel and for the construction of buildings required in the operation of any mine on the claim, or necessary for drains, tramways, and supports for such mine, but for no other purpose.

"Whenever such lessee is convicted of fraud or wilful misrepresentation in procuring such lease, or violates any term, condition or covenant of such lease or contract, he shall forfeit the lease or contract to such mine or claim, and all improvements placed thereon, or used in connection therewith, and all property thereon, and the right, title or claim thereto shall vest in the state."

A lease was duly issued to him. Thereafter the land commissioner, acting under the instructions of the State Land Board, brought a suit to cancel the lease under the provisions of section 2971, Revised Code 1928, which is in the following language:

"Cancellation of lease. Before any action may be brought for the cancellation of a lease the land department shall hold a public hearing after due notice thereof to the lessee or assignee. The department may then order the commissioner to bring an action to cancel said lease and if it appear that such lease was procured through fraud, deceit or wilful misrepresentation, the court shall cancel said lease and forfeit the improvements on the land to the state; but should said lease be canceled for any other reason, then the lessee shall be permitted to remove his improvements at any time within sixty days."

At the trial of the case it was agreed that the vital allegations upon which the action was based were set [51 Ariz. 184] forth in paragraphs XII and XIII of ...

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