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Rundle v. Republic Cement Corp.

Supreme Court of Arizona

June 17, 1959

Edgar RUNDLE, Sidney Kick, Harry Kick, Karl Lukefeld, Emil Ingold, Mrs. Herman Smith, H. O. Stuart, Mrs. H. O. Stuart, Appellants,
REPUBLIC CEMENT CORPORATION, a corporation, Appellee.

Rehearing Denied July 14, 1959.

[86 Ariz. 97] Fickett & Dunipace, and May, Lesher & Dees, Tucson, for appellants.

Edward B. Ashurst, Wickenburg, for appellee.

Page 227

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.

[86 Ariz. 98] 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 90 days copies of all of said notices were recorded in the office of the County Recorded 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

Page 228

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 [86 Ariz. 99] 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 ejectment, 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 States. This leaves the United States entirely out of consideration, and neither party can [86 Ariz. 100] 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. * * *'

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 ...

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