[79 Ariz. 56] McQuatters & Stevenson, Flagstaff, for appellant.
Ross F. Jones, Atty. Gen., P. H. Brooks, Winslow, Sp. Counsel, Alfred B. Carr, Asst. Atty. Gen., for appellees.
This is an appeal by Aztec Land and Cattle Company, Ltd., a corporation (defendant in the court below and hereinafter referred to as Aztec), from a summary judgment holding certain of its lands to subject to
taxation. The suit was initiated by a group of taxpayers of Navajo County, hereinafter termed plaintiffs, who sought a writ of mandamus to require Aztec to supply the county assessor with a list of lands owned by it in Navajo County, and to direct the assessor (who with other public officials of the county were named as parties defendant) to place said lands on the assessment roll and to assess the same.
An alternative writ of mandamus was issued. Aztec filed a motion to dismiss, which was denied, and then a verified answer to the complaint. The public officials named as defendants also filed answers which we need not analyze as they are not parties to this appeal. Plaintiffs then filed a reply to the answer of all defendants and shortly thereafter followed with a motion for summary judgment supported by three documentary exhibits to which we will later refer. Aztec filed a memorandum in opposition to said motion together with the supporting affidavit of its vice-president, T. W. Cabeen. Other memoranda, affidavits and exhibits were filed by the respective parties. After the matter had been orally argued and fully briefed the trial court rendered a written decision granting plaintiffs' motion for summary judgment. A formal written judgment was later entered which directed [79 Ariz. 57] the issuance of peremptory writs of mandamus to Aztec and the county assessor. Aztec then filed a motion to vacate judgment and also a motion to correct the judgment and the peremptory writs of mandamus, which were by the court denied. This appeal followed.
While a challenge is made as to the sufficiency of the complaint to state a claim upon which relief can be granted, the principal assignment of error is that it was error to grant plaintiffs' motion for summary judgment for the reason that the pleadings and entire record before the trial court revealed the existence of genuine issues of material fact between the parties. Plaintiffs challenge the correctness of this statement.
It is well established that in determining such motion, made under Rule 56, Rules Civ.Proc. (now appearing as Sec. 21-1210 et seq., A.C.A. 1939), the court does not try issues of fact but only determines whether the same are genuine and in good faith disputed. See, Malta v. Phoenix Title & Trust Co., 76 Ariz. 116, 259 P.2d 554, and Stevens v. Anderson, 75 Ariz. 331, 256 P.2d 712, together with the cases therein cited as to when a motion for summary judgment should or should not be granted.
While there are certain minor matters, hereinafter discussed, which Aztec contends are issues to be tried, the principal fact issue which Aztec claims defeats plaintiffs' right to summary judgment concerns the ownership of the lands in question. The complaint alleges that Aztec is the owner thereof, which the latter in its answer denies, asserting that the record title is in the United States of America; however, in its reply plaintiffs allege that the ownership of these 'indemnity strip' lands as between the government and Aztec was adjudicated in the cases of Krug v. Santa Fe Pac. R. Co., 81 U.S.App.D.C. 288, 158 F.2d 317, and more particularly in Chapman v. Santa Fe Pac. R. Co., 90 U.S.App.D.C. 34, 198 F.2d 498, certiorari denied 343 U.S. 964, 72 S.Ct. 1058, 96 L.Ed. 1361. Hence it is plaintiffs' position that the question of ownership is one of law which the trial court was empowered to decide on motion for summary judgment. A determination of whose position is correct is, we believe, the crux of the whole case.
Unquestionably, it was the impact of the decision in the Chapman case that give rise to the instant suit to place on the tax rolls of Navajo County the lands here in question. These lands may be generally described as 62 odd-numbered sections, comprising some 37,758.56 acres, lying in five townships (i. e., T. 13 N., R. 15 E.; Twps. 12 N., Ranges 16 and 17 E.; T. 10 N., R. 20 E.; and T. 11 N., R. 21 E.) located in the Pinedale and Heber areas on the Sitgreaves National Forest, and all are in what is known as the 'indemnity strip'. T. W. Cabeen, vice-president of Aztec, correctly states in his affidavit that claim to said lands has 'been in dispute, controversy and litigation from 1886 to 1952', that is until June 2,
1952, when the Supreme Court of the United [79 Ariz. 58] States denied certiorari in the Chapman case. See 72 S.Ct. 1058.
In order to resolve the problem presented as to ownership, etc., it is necessary that we state the facts leading up to the Chapman case as well as analyzing the holding of that decision, and in addition to set forth other matters that have a particular bearing on the instant controversy.
Inasmuch as reported decisions in the Krug and Chapman cases, supra, recite in great detail the history of the title to the Aztec lands, we shall do no more than succinctly outline-in chronological order-the various steps taken as they affect the lands here in question:
(1) Congress, by the Act of July 27, 1866, 14 Stat. 296, to aid in the construction of a railroad to the Pacific coast, granted to the Atlantic & Pacific Railroad Company the odd-numbered sections of public lands for 40 miles either side of its projected line; this area is described as the 'place' limits. Within an additional 10-mile strip known as the 'indemnity' limits, the Act granted the right to select sufficient lands to make up any deficiency in the 'place' limits arising from homestead entries, pre-emptions, mineral lands, etc.
(2) On March 12, 1872 the Atlantic & Pacific filed with the Secretary of the Interior a map of definite location, and thereafter the railroad was constructed.
(3) On February 3, 1886 the Atlantic & Pacific contracted to sell 1,000,000 acres to Aztec.
(4) By Act of Congress dated March 3, 1897, 29 Stat. 622, the Santa Fe Pacific Railroad Company (hereinafter called Santa Fe) was created.
(5) On June 2, 1897 a Special Master, acting in behalf of Atlantic-Pacific, deeded all of its right and interest in and to said lands to the Santa Fe, which deed was recorded with the county recorder of Navajo County.
(6) On August 17, 1898, by executive proclamation, some 98,690.83 unsurveyed acres, lying in the 'indemnity' strip, claimed by Aztec were withdrawn for a forest reserve.
(7) On November 7, 1905, Santa Fe conveyed to Aztec the balance of the lands due it under its original contract. This deed was recorded in Navajo County and specifically describes all of the lands involved in this suit.
(8) By October 14, 1939, all of the lands in question had been surveyed.
(9) On June 26, 1942, the Santa Fe filed selections in the form prescribed by the Secretary of the Interior of the land previously sold and conveyed to Aztec. Those selections were denied on the ground that the land had not been identified so that the railroad acquired any interest in specific lands which it could convey.
(10) On January 14, 1949, Federal District Judge Holtzoff, in the trial of the Chapman case, found as a fact:
[79 Ariz. 59] '9. Prior to and at the time of the said withdrawal, (Forest Reserve) and at all times thereafter to and including 1940, the unsatisfied losses in the place limits of the grant exceeded the surveyed lands within the indemnity limits of the grant available for selection, and to that extent there was and has been a deficiency ...