Arizona Commercial Min. Co. v. Iron Cap Copper Co.

• Decision Date: 03 January 1925
• Docket Number: Civil 2162
• Citation: 27 Ariz. 202,232 P. 545
• Parties: ARIZONA COMMERCIAL MINING COMPANY, Appellant, v. IRON CAP COPPER COMPANY, Appellee
• Court: Arizona Supreme Court

232 P. 545

27 Ariz. 202

ARIZONA COMMERCIAL MINING COMPANY, Appellant, v. IRON CAP COPPER COMPANY, Appellee

Civil No. 2162

Supreme Court of Arizona

January 3, 1925

APPEAL from a judgment of the Superior Court of the County of Gila. Samuel L. Pattee, Judge. Judgment reversed.

Messrs Ellinwood & Ross, Messrs. Dunbar, Nutter McClennen and Mr Edward F. McClennen, for Appellant.

Mr John P. Gray, Messrs. Morris & Malott and Mr. Burton E Eames, for Appellee.

OPINION

LYMAN, J.

This action to quiet title in the Iron Cap Copper Company of certain mining claims in Gila county, this state, grows out of a controversy over ore mined by it from beneath the surface of these claims, but which the Arizona Commercial Mining Company, the defendant in the action and the appellant here, had claimed because taken from veins having their apices in its ground, and had attempted to recover its value from the Iron Cap Copper Company in the courts of Massachusetts, where both parties had executive offices. Jurisdiction of the matter was there declined for reasons stated in Arizona Commercial Min. Co. v. Iron Cap Copper Co., 233 Mass. 522, 124 N.E. 281, and Arizona Commercial Min. Co. v. Iron Cap Copper Co., 236 Mass. 185, 128 N.E. 4. Later similar proceedings were commenced in the courts of Maine, where both corporations were domiciled, and jurisdiction there was entertained. Arizona Commercial Min. Co. v. Iron Cap Copper Co., 119 Me. 213, 110 A. 429. That suit is still pending subject to the judgment in this action.

The complaint in this action sets forth somewhat in detail the pleadings and judgments in the Massachusetts and Maine cases, and summarizes as follows:

"Plaintiff avers that the controversy in the state of Maine presents the issue as to the ownership of the ores (in) which the plaintiff has mined from within its mining property."

The demurrer to this complaint upon the ground that it fails to state a cause of action, in that it did not appear that the Iron Cap Company's title had been assailed, or that the proceedings in New England had the effect to cloud its title, was overruled, and the same question is brought up on this appeal.

While the gravamen of the cause of action, in each of these New England proceedings, was the recovery of the value of ore alleged to have been taken, the ownership of the ore depended ultimately upon the title to the ground from which it came, and no recovery could have been had by the plaintiff in those actions without establishing in it title to the very ground which the Iron Cap Company claims, and to which in this action it is seeking to have its title quieted.

This form of action for trying title to real estate, authorized by paragraph 1623, Revised Statutes of Arizona of 1913 (Civ. Code), is exceedingly liberal in its application. Undoubtedly the pendency of the action in Maine amounted to an assertion seriously and effectively of some right and interest in the real estate claimed by the Iron Cap Company, and had the effect of creating a cloud upon its title. Curtis v. Sutter, 15 Cal. 259; Ely v. New Mexico R.R. Co., 129 U.S. 291, 32 L.Ed. 688, 9 S.Ct. 293 (see, also, Rose's U.S. Notes); Castro v. Barry, 79 Cal. 443, 21 P. 946.

The answer again presented the same question of jurisdiction by plea. It also states in detail the location and title of its mining claims, and the presence therein of veins of ore designated as Old Dominion and Black Hawk, but alleges that, "in the present condition of development of the plaintiff's mining claims, and of the defendant's mining claims, it is not possible to set forth to what extent, if any, the defendant is entitled to veins, lodes, and ledges beneath the plaintiff's claims," and asserts that inasmuch as the defendant has made no claim to plaintiff's real estate, it should not be required to disclaim or to claim with reference to such veins and ledges, but that it claims possession and enjoyment of the Old Dominion and Black Hawk veins so far as it may appear by subsequent development that the position of these veins within its mining claims shall entitle it to them in accordance with the provisions of section 2322, Revised Statutes of the United States (6 Fed. Stats. Ann., p. 523; U.S. Comp. Stats., § 4618).

During the trial of the case upon the merits, examination was made at considerable length into the geology and mineral development of the disputed territory, and the evidence enlightened as far as possible by opinions of experts, the court sitting without a jury. Preliminary to the decree rendered, the court stated that "with one or two exceptions there is no dispute as to the physical facts." "The lack of development is such that it is impossible to say, and it cannot be found by the court, that either the Old Dominion or the Black Hawk vein occupies any such position or has any such continuity as claimed by the defendant." The decree, however, provided that the veins of ore found in Iron Cap ground did not have their apices in the mining properties of the Arizona Commercial, and that the ores extracted and removed heretofore are not a part of any vein or lodes having their tops or apices within the Arizona Commercial Company's properties. The judgment further decreed that the right, title, and interest of the Iron Cap Company in the designated mining claims, and in the Old Dominion and Black Hawk veins, be quieted as against any assertion of extralateral rights by the Arizona Commercial Company, based upon the ownership of said veins or either of them, and perpetually enjoins the assertion of any rights in or to these veins as against the Iron Cap Company.

To this judgment the Arizona Commercial makes two general objections. First, upon the facts disclosed by the evidence and found by the court, the Arizona Commercial is entitled to some portion of the ore in dispute by reason of a right to pursue the vein in which it was found through the eastern boundary plane of the Defiance claim. Second, that the judgment is in conflict with the facts found by the court, is broader than the issues, and in contravention of the vested rights of the Arizona Commercial under the statutes of the United States. An examination of these grounds of appeal requires an understanding of the position and conditions of the mining claims out of which this dispute grows.

The mining claims in question owned by the Iron Cap Company are the Iron Cap, Columbus, Olympia and Free America. These claims, together with the Friends and Columbia, also owned by the Iron Cap Company, lie in a compact body, and are flanked upon the west by the mining claims Cochise, Defiance and Copper Hill, and upon the east by the Matamora, Pontiac, Covellite, Eureka, Black Hawk, Climax and Omega, which surround the Free America on three sides, and are all owned by the Arizona Commercial. Outline and relative position of all these claims is shown on Exhibit 1A annexed. The claims owned by the Arizona Commercial are the older by location and patent. There is no dispute concerning surface rights or boundary lines. [See APPENDIX IN ORIGINAL]

Along the lines shown on Exhibit 1A, and there designated as "Apex Old Dominion vein" and "Apex Black Hawk vein" respectively, at intervals are found outcroppings of ore with considerable development at a few points. It is the theory of the Arizona Commercial that a vein, which it designates as the Old Dominion, has a continuous surface apex along the line indicated, and dips southerly in uninterrupted course until it is faulted, cut in two, and the severed parts displaced by the Black Hawk vein, which is a mineralized fissure dipping flatly to the north, and extending in a course somewhat nearly parallel to the Old Dominion vein through the Copper Hill, Iron Cap, Columbia, Omega and Black Hawk mining claims. Both of these veins are cut in two by the Budget fault, causing a displacement and wide separation of the severed parts both vertically and longitudinally. The position of this fault is in part only shown on the diagram. It does, however, extend across the Defiance claim from north to south. The ore which is the source of this controversy was mined beneath the Black Hawk vein from an ore body found in a well-defined vein formation which extends through a portion of the Iron Cap, Columbus, and Free America. The Iron Cap Company rests its claim to this ore solely upon the common-law presumption that the owner of the surface is entitled to everything found beneath. This vein formation is continuous from west as the Budget fault, and dips to the south. It has no surface outcroppings, but terminates in its upward course at the Black Hawk vein. That is its apex. The exact position of this line of contact within the Defiance claim, as disclosed by the record, is disputed by counsel in their argument here. The effect of the court's finding of facts is that it crosses the north boundary line of the Defiance. The testimony of plaintiff's witness is that it probably crosses that line 140 feet west of the northeast corner of the Defiance claim. From that point it extends south-westerly through Defiance ground a distance of 350 feet to the Budget fault, where its continuity is interrupted by that fault. The location of this vein within the Defiance is at such an angle with the boundary lines that it would, if continued in the same direction, cross the south boundary. The Arizona Commercial claims that, from this apex within its ground, it is entitled to follow the vein through the easterly boundary of the Defiance, and into the Iron Cap claim.

The Defiance claim as patented has its side-lines upon the north and south. The ledge in which the discovery shaft is located with reference to which the claim was laid out, crosses the southern boundary line, and...