HAYNIE et ux.
TAYLOR et al
Judgment reversed and cause remanded with instructions.
W. Shelley Richey and Norman S. Herring, of Douglas, attorneys for appellants.
David J. Marks and Wesley E. Polley, of Bisbee, attorneys for appellees.
Phelps, Justice. La Prade, C. J., and Udalll, Stanford, and De Concini, JJ., concur.
[69 Ariz. 340] In the year 1939 Dan H. Taylor and Ralph Schupbach, hereinafter called by their surnames, were the owners as tenants in common of Chance Claims Nos. 1, 2, 3 and 4 in the Swisshelm mining district, Cochise County, Arizona. Ether Haynie, one of the plaintiffs herein, who will hereinafter be called Haynie, was the lessee of the Scribner group of mining claims adjoining the Chance Claims on the west. There were no usable shafts on the Scribner Claims but there were two shafts on the Chance Claims known as the old or lower shaft and the new or upper shaft in sufficient proximity to the Scribner Claims to enable Haynie to work such claims through one of these shafts by digging a tunnel of about 300 feet over to the side line of the Chance Claims and to a point on the Scribner Claims known as the well drill hole. Haynie had previously bored the well drill hole on the Scribner Claims and had encountered a body of ore which he believed to be of commercial value.
[69 Ariz. 341] On the 19th day of December, 1939, Haynie entered into a written contract of lease with Taylor for the lease of the Chance Claims. In this lease Haynie agreed to sink what was known as "the old shaft" 40 feet deeper and to run a tunnel from the bottom of said shaft over to the Scribner Claims for which Taylor agreed to convey by sufficient deed, a one-third
interest in the Chance Claims. Taylor testified that he had purchased Schupbach's interest in the Chance Claims and on the date of the lease was the sole owner thereof. Schupbach denied this on the witness stand and said that he was then the owner of an undivided one-half interest therein. We consider this question immaterial however.
Haynie entered upon the claims and began to sink the old shaft deeper but encountered so much water and the shaft was so dangerous that he could not successfully carry out the terms of his written lease agreement. He and Taylor, during the month of March, 1940, orally agreed, however, that Haynie might run the drift or tunnel from the 116-foot level in the old shaft over to the well drill hole on the Scribner Claims and to sink the upper shaft 40 feet deeper instead of continuing to work on the lower shaft. The tunnel was necessary to Haynie's operation of the Scribner Claims in order to enable him to convey his ore from the Scribner Claims to the old shaft on the Chance Claims and there to bring it to the surface. The new upper shaft had approximately a 30 feet higher elevation at the collar than the lower shaft and was about 240 feet north of the old shaft. There is a sharp conflict in the evidence as to whether the work agreed to be done under the oral agreement was in lieu of that provided to be done under the written lease agreement or was in addition thereto as will be hereinafter more fully pointed out.
Haynie ran the drift from the 116-foot level in the lower shaft over to the Scribner Claims and took out large quantities of ore from those claims as was anticipated. The drift or tunnel and development work definitely developed the fact that the body of ore on the Scribner Claims dipped to the east under the Chance Claims which greatly enhanced the value of the Chance Claims. Haynie dug the upper shaft about 53 feet deeper than it originally was when he entered upon the performance of the written lease agreement of December, 1939. Under direction of the State Mine Inspector he also extended the drift to the upper shaft, thus connecting the two shafts with the tunnel.
In September, 1943, the owner of the Scribner Claims terminated Haynie's lease and he moved such equipment as he had in use and which was loose, away from the Chance Claims leaving only certain other heavy personal property which was fastened to the ground or not easily moved away.
He discontinued work on the Chance properties at that time and he together with [69 Ariz. 342] his employees left the premises and according to Haynie's testimony at the trial he has not returned to the property since that time. He did not notify Taylor he had completed his contract ...