BASSETT et ux.
RYAN et al
Cullen A. Little, Globe, and Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, for appellants.
Shimmel, Hill & Hill, Phoenix, for appellees.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[72 Ariz. 384] This is an appeal by plaintiffs, Joe R. Bassett and Mable Bassett, his wife, from a judgment entered against them based upon a directed verdict for the defendants, and from the order denying their motion for a new trial.
The facts material to this appeal are as follows: Plaintiff Joe Bassett was an experienced cattleman, with many years experience at the time of this sale, and holding like grazing permits and preferences in his own name. The defendants (appellees) were a partnership consisting of E. E. Ryan, J. B. Ryan, and C. M. Ryan, d. b. a. Ryan Cattle Company. In addition to their [72 Ariz. 385] livestock, defendants owned 80 acres of patented land and extensive improvements located on range lands in Gila County, Arizona, and were the holders of certain established terms preferences and annual permits to graze cattle on the Crook National Forest.
In the late summer of 1947 the defendants orally agreed to sell their entire holdings, as one of them expressed it "lock, stock and barrel", to the plaintiffs for $ 180,000. On September 5, 1947, the sale was completed and a written agreement was drawn warranting the number of cattle grazing on the range included in the sale, specifying the method of counting the cattle, and making provision for crediting the plaintiffs for any shortage in the warranted number. There was however no warranty contained therein as to the grazing preference that the Forest Service might ultimately allow to plaintiffs. The defendants simultaneously executed and delivered
to the plaintiffs a bill of sale for the cattle, a deed covering the patented land, and a waiver to the United States Forest Service of all their grazing preferences and permits. On January 3, 1948, the plaintiffs made application to the Forest Supervisor for a grazing preference covering 786 head of livestock which was the maximum or ceiling number theretofore held by the defendants. However for the year 1947 the defendants had only a year long permit for 540 head of cattle, a five month permit for 157 head, and a compulsory non-use permit for 223 head.
On February 24, 1948, the Forest Service notified the defendants that they had grazed more livestock than they had paid grazing fees on and more than their permits allowed for the years 1946 and 1947, and assessed a fine of $ 1,153.16 against them for the trespass. They also gave the defendants an opportunity to show cause why their grazing preference should not be reduced by 189 head. The defendants paid the fine, but contested the reduction because it would be unfair to the plaintiffs who were entirely innocent in the matter. Principally because of the trespass the Forest Service issued to the plaintiffs a term preference for only 621 head, which was a net reduction of 165 head.
It might be well to point out the distinction between a grazing preference and a grazing permit. This is well stated in N.F.-C4-3, Chapter C, Volume III, National Forest Protection and Management, Forest Service Manual, as follows: "A preference conveys no legal right to the use of national-forest range. It simply entitles the holder to special consideration over other applicants who have not established preferences. A preference does not entitle the holder to continue use of any certain part of the forest. The terms 'preference' and 'permit' are not synonymous. A permit authorizes the grazing of livestock under specific conditions and expires [72 Ariz. 386] on a certain date, while preference continues until canceled or revoked."
These permits and/or preferences cannot be transferred or assigned directly to the purchaser but can only be waived to the Forest Service, and within its sole discretion may be reissued. In Bell v. Apache Maid Cattle ...