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

• Decision Date: 24 September 1925
• Docket Number: Civil 2162
• Citation: 239 P. 290,29 Ariz. 23
• Parties: ARIZONA COMMERCIAL MINING COMPANY, a Corporation, Appellant, v. IRON CAP COPPER COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

239 P. 290

29 Ariz. 23

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

Civil No. 2162

Supreme Court of Arizona

September 24, 1925

On rehearing of appeal from a judgment of the Superior Court of the County of Gila. Samuel L. Pattee, Judge. Judgment of trial court modified and affirmed.

For former opinion, see 27 Ariz. 202, 232 P. 545.

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

LOCKWOOD, J.

The original opinion of this court was filed January 3rd, 1925. A petition for rehearing was presented by appellee January 14th, and was denied March 27th. Thereafter appellee, on March 31st, asked for a stay of mandate, and on April 10th appellant petitioned that the mandate be sent down to the superior court. No action was taken on either of these two matters, but on April 21st a supplemental petition for rehearing was presented by appellee, which was argued orally June 8th, and on June 18th an order was entered granting the petition for rehearing.

Appellant objected to the supplemental petition upon the ground, among others, that this court had, after its ruling of March 31st, lost jurisdiction of the case, except for the purpose of ordering the mandate sent down. We do not think this point well taken. The jurisdiction of an appellate tribunal, in the absence of a constitutional provision or statute, does not terminate until the case has been returned to the trial court. Thomas v. Thomas, 27 Okl. 784, Ann. Cas. 1915C, 713, 35 L.R.A. (N.S.) 124, 133, 109 P. 825, 113 P. 1058. Indeed, the right of recalling the judgment has frequently been exercised even after the mandate has been sent down. Ehrig v. Adams, 67 Okl. 157, 169 P. 645; McBride v. Coleman, 189 Ind. 7, 125 N.E. 499; Franklin Bank Note Co. v. Mackey, 157 N.Y. 674, 51 N.E. 178.

After careful deliberation, we have concluded to reconsider the case as of first impression, and, in order that this opinion may be more intelligible, we shall restate the facts even though it may involve to a considerable extent a repetition of our previous opinion.

The Arizona Commercial Mining Company, a corporation, hereinafter called appellant, was the owner of certain mining claims located in Gila county, Arizona, while the Iron Cap Copper Company, a corporation, hereinafter called appellee, was the owner of certain other mining claims lying contiguous to those of appellant. The claims owned by the appellant are the older by location and patent, and there is no dispute concerning surface rights or boundary lines.

Among the claims of appellee are four known as the Iron Cap, Columbus, Marjorie, and Free America, and from certain ore bodies, located beneath the surface of these claims in well-defined vein formations, appellee had extracted a large quantity of valuable ore. Some time after the extraction of these ores, appellant brought suit against appellee in the courts of Massachusetts, where both parties had executive offices, to recover their value, and later similar proceedings were commenced in the courts of Maine where both corporations were domiciled. The Massachusetts courts declined jurisdiction of the matter for reasons stated in Arizona Commercial Mining Co. v. Iron Cap Copper Co., 233 Mass. 522, 124 N.E. 281, and Arizona Commercial Mining Co. v. Iron Cap Copper Co., 236 Mass. 185, 128 N.E. 4. The courts of Maine, however, entertained jurisdiction of the action, but said, in Arizona Commercial Mining Co. v. Iron Cap Copper Co., 119 Me. 213, 110 A. 429, that their decision, "may involve a finding, not indeed as to who owns a mining lode in Arizona, but as to who did own such lode when ore, the proceeds of which are subject to our jurisdiction was severed from it"; and that case is still pending, subject to the judgment in this action.

Appellee then brought suit in the superior court of Gila county against appellant setting up its ownership of the mining claims above described, and alleging "that the Arizona Commercial Mining Company claims and has claimed an estate or interest adverse to the plaintiff in and to the said Iron Cap lode mining claim, Columbus lode mining claim, Marjorie lode mining claim, and Free America lode mining claim, and to the veins and ore beneath the surface thereof, and therein contained, . . ." and the usual allegations that the exact nature of these claims was unknown to appellee, and that they were false and groundless and a cloud upon appellee's right, title, and interest to the claims, and to the veins and ores therein contained.

The complaint further recited the bringing of the suits by appellant in Massachusetts and in Maine, and the substance of the claims made by it in those suits. It appears therefrom that in Maine the Arizona Commercial Company's complaint alleged in part as follows:

"That among the veins, lodes, and ledges which have their top or apex within the complainant's patented mining claims aforesaid, are those described as the Black Hawk and the Old Dominion veins, . . . and continuously through the six years last past, the respondent has taken . . . and converted to its own use certain ores, . . . all of which were at all times the property of the complainant, and originally came from those portions of the veins, lodes, and ledges aforesaid which had their top or apex upon the mining claims aforesaid," -- and further asked for an injunction against the respondent, preventing it from taking any further ores from the aforesaid veins, the pleadings in the Massachusetts courts being substantially the same.

Appellant demurred to the complaint herein on the ground it did not appear that the appellee's title had been assailed or that the proceedings in New England had the effect of clouding its title. It then answered and, referring to that portion of the complaint which dealt with the suits in Massachusetts and Maine, admitted the allegations of the complaint in so far as it set up the pleadings of appellant in Maine and Massachusetts, but alleged in effect that such claims, though made, were not claims to any interest in or to real estate, but merely to personal property. The answer then described the surface boundaries of the Cochise, Defiance, Copper Hill, Matamora, and Omega claims of appellant's, with their location and the apices of the Old Dominion and Black Hawk veins as they appear on the surface of those claims, and, after setting up that it claimed extralateral rights to such veins under section 2322, R.S.U.S. (U.S. Comp. Stats. § 4618), alleged as follows:

"(39) The points at which the Old Dominion vein, on its dip within the vertical planes aforesaid, enters the lode mining claims described by the plaintiff as its property in the bill of complaint, and the extent therein it is impossible to state in the present condition of development of the mines.

"(40) The points at which the Black Hawk vein, on its dip within the vertical planes aforesaid, enters the lode mining claims described by the plaintiff as its property in the bill of complaint, and the extent therein, it is impossible to state in the present condition of development of the mines.

"(41) The Old Dominion vein within the limits aforesaid, on its dip into the Iron Cap claim aforesaid beneath the east line of the Defiance claim (line G-J on said plan), has been encountered at the 700th and 800th level, and has been mined out in the Iron Cap claim at these points, and has been mined by the defendant in the Defiance claim up to the vertical plane of this east side line of the Defiance claim (line G-J on said plan).

"(42) This point of encounter on the 700th level is from one hundred ten (110) to one hundred twenty-five (125) feet south of the vertical plane of the northerly boundary of the Defiance claim measured on the easterly boundary, and on the 800th level, it is approximately ten (10) feet further south. In higher unopened levels it probably crosses at points more to the north, and at lower unopened levels at points more to the south.

"(43) Whether or not there remains unexhausted within the property described as the plaintiff's in the complaint any part of the Old Dominion vein, or said Black Hawk vein, the defendant does not know, and the defendant says that the probabilities that there is such a vein are such that the defendant should not be deprived of the right to claim it if and when the development of the properties discloses its existence. . . ."

Appellee replied, and specifically denied that the Black Hawk and Old Dominion veins dipped into its property in any manner from the claims of the appellant, and further set up that, notwithstanding the allegations of paragraphs 39, 40, and 43 of the answer, wherein appellant stated that it was impossible to determine the points where the Black Hawk and Old Dominion veins entered appellee's property, and whether or not there was any part of the said veins existing unexhausted in appellee's property, that appellant nevertheless had sought to recover from appellee the value of all the ores taken by appellee from its property, on the claim made by appellant in the Massachusetts and Maine courts that they came from the Black Hawk and Old Dominion veins which apexed within the claims of the appellant where they dipped into the ground of appellee. The demurrer was overruled by the trial court, and the case went to trial upon the issues made by the complaint, answer, and reply.

The matter was heard before the court sitting without a jury, and a large amount of evidence presented. Much of this evidence was offered by appellant in an attempt to show the veins from which the ore in...