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Walkeng Min. Co. v. Covey

Supreme Court of Arizona

May 25, 1960

WALKENG MINING COMPANY, a corporation, Appellant,
W. E. COVEY Edward Claunts, J. M. Marston, James Wulfenstein, Elroy Wulfenstein, Charles Yarbrough and Arizona American Copper Company, a Nevada corporation, Appellees.

Page 769

[88 Ariz. 81] Carl D. Hammond, Kingman, Edson Abel, Middletown, Cal., and Stockton & Karam, Phoenix, for appellant.

[88 Ariz. 82] O. Ellis Everett, Kingman, Dolley, Jessen & Painter, Louis Miller, Los Angeles, Cal., of counsel, for appellees.

RAUL H. CASTRO, Superior Court Judge.

Plaintiff-appellant, Walkeng Mining Company, a corporation, filed a forcible entry and detainer action against the defendants-appellees, W.E. Covey et al. The parties will herein be referred to as plaintiff and defendants. The complaint alleged that on or about January 3, 1956 the plaintiff was in peaceful and actual possession and owned three mining claims, Gem 1, Gem 2, and Gem 3, in Mohave County, having located said claims on October 8, 1955.

Allegedly the defendants on or about January 3, 1956, unlawfully entered the mining claims hereinbefore described and ousted plaintiff by means of threats and menacing conduct. It was further alleged that ever since said date defendants had forcibly and unlawfully held possession of said claims, excluding plaintiff from use and enjoyment thereof and from completing its location work, thus damaging plaintiff in the sum of $1,000.

Defendants answered by way of a general denial and with four special defenses. The first and fourth overlap and are as follows: Deny a forcible entry and detainer and that plaintiff was ever in possession of the mining claims in question. Allege defendants were on January 3, 1956, in possession of the claims and at all times thereafter. The second defense was that the three Gem mining claims were not public domain open for location of mining claims on October 8, 1955, as said claims were on March 3, 1933, withdrawn land under a First Form Reclamation Withdrawal Order of the Secretary of Interior of the United States. Defendants further alleged that since that date the land has continued to be withdrawn and mining locations of October 8, 1955, were a nullity and of no force and effect.

The Third defense was that because of plaintiff's non-compliance with the Arizona law as to locations, their locations of October 8, 1955, were invalid.

The case was tried to the court sitting without a jury. Judgment was entered against plaintiff and in favor of defendants finding that defendants were not guilty of forcible entry and detainer. Plaintiff appealed from this judgment and from all intermediate orders and rulings of the court.

The facts which are not too much in dispute will be stated in a light most favorable to a sustaining of the judgment Berger v. Bhend, 79 Ariz. 173, 285 P.2d 751; Kellogg v. Bowen, 85 Ariz. 304, 337 P.2d 628. The pertinent facts are as follows:

The land covering unpatented mining claims Protection Lode, Protection No. 1 [88 Ariz. 83] and Protection No. 2 is substantially the same as the ground covered by the three unpatented Gem mining claims. These claims are all located within the boundaries of the Lake Mead Recreation Area.

The Protection Group claims were originally located by a Mrs. B. T. McMasters in 1914. In 1918 Mrs. McMasters conveyed the claims to Arizona American Copper Company (not the defendant corporation). Defendants became the successor in interest to Mrs. McMasters' claims by acquiring title to and ownership of claims by mesne conveyances, assignments and transfer of the interest of Mrs. McMasters and the predecessor corporation.

On March 3, 1933 the Secretary of the Interior pursuant to the Reclamation Act (Sec. 3, Act of June 17, 1902, 43 U.S.C.A. § 416) withdrew all of Township 32 North, Range 10 West of the G & SRB & M 'excepting any tract title to which has passed out of the United States' from public entry under the first form of withdrawal. The parties to this action stipulated that at the time of the withdrawal order, March 3, 1933, the group of Protection claims, which are situated therein, were valid claims.

Page 770

No assessment work was done on these claims for the mining year ending July 1, 1939. In September 1939, V. Loraine Cox and her brother Kenneth Cox filed notices of relocation for the area embraced within the Protection Claims as the Cox-Ross Mine and Cox-Ross Mine No. 1. Assessment work was done on these mining claims by Cox until 1949, at which time he leased his claims to Lorin Whitmore and associates. Three years later the Whitmore group sub-leased to defendant James Wulfenstein. The Bureau of Land Management notified Wulfenstein that he was a trespasser on federal lands and required him to stay off the mining claims. Wulfenstein surrendered the claims to Cox, who endeavored to obtain a lease from the Bureau of Land Management but did not pursue the matter on ascertaining that the Protection claims (the McMasters interests) had been purchased by defendant Arizona American Mining Company.

Shortly after defendant's acquisition of title to Protection claims in August 1955, work was resumed by the defendant corporation towards the construction and restoration of a road leading to the claims sites. The road, 27 miles in length, was completed in January, 1956. From December 1955, up to time of trial about $30,000 was spent by defendant in exploratory work in these claims.

Jerry Deer, formerly employed by defendant W. E. Covey, was employed by plaintiff to stake out claims in the Cooper Mountain area. Deer had seen photographs taken by Covey of the Coper Mountain area and after his discharge by Covey informed plaintiff of photographs taken by Covey. On October 8, 1955, Deer entered [88 Ariz. 84] the area on foot alleging that the area was unoccupied and that there were no roads. He posted notices of location in the area and the claims were named Gem No. 1, Gem No. 2 and Gem No. 3, virtually covering the same ground encompassed by the Protection group. The names of the locators were M. E. Kirk and Henry Rystrom, who later quitclaimed the Gem claims to plaintiff. On October 8, 1955, a representative of Lake Mead Recreation Service made entries in field notes to the effect that mining in Lake Mead Recreation area could only be carried by permit issued by the Bureau of Land Management.

On January 4, 1956, Deer returned to the Protection mining claims site with four mine workers and a deputy sheriff of Mohave County. This time Deer and companions drove over defendant's newly constructed road. Deer had super with defendants' group and advised them he had returned to complete location work. He was then notified by defendants that he had no right to be there and was trespassing. He departed and returned on January 11, 1956, using defendants' road ignoring the 'No Trespassing' signs and over objections from defendants' foreman, then in possession of the property. Deer entered the claims and posted three new notices of location in the name of Vern Pickrel, who quitclaimed to plaintiff. The following legal questions are presented: (1) Did title to the Protection group mining claims ever pass out of the United States? (2) Did the order of the Secretary of the Interior, supra, withdraw the land encompassed by mining claims Protection Lode, Protection No. 1 and Protection No. 2, which for purposes of this appeal is the same land covered by mining claims Gem No. 1, Gem No. 2 and Gem No. 3? (3) Was the ground covered by the Protection group mining claims subject to relocation after the government order of March 3, 1933?

This leads us to an analysis of the nature of this action. It is a forcible entry or detainer action, thus being a statutory proceeding. Olds Bros. Lumber Co. v. Rushing,64 Ariz. 199, 167 P.2d 394. The statutes involved ...

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