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

• Decision Date: 04 June 1920
• Parties: ARIZONA COMMERCIAL MINING CO. v. IRON CAP COPPER CO. (two cases).
• Court: Maine Supreme Court

110 A. 429

ARIZONA COMMERCIAL MINING CO.

v. IRON CAP COPPER CO. (two cases).

Supreme Judicial Court of Maine.

June 4, 1920.

Report from Supreme Judicial Court, Cumberland County in Equity.

Bills by the Arizona Commercial Mining Company against the Iron Cap Copper Company. On report. Bill sustained in the first cause and demurrer and plea overruled, and in the second plea adjudged sufficient and bill dismissed. f

Argued before SPEAR, HANSON, PHILBROOK, MORRILL, WILSON, and DEASY, JJ.

Cook, Hutchinson & Pierce, of Portland, and Dunbar, Nutter & McClennen, of Boston, Mass., for plaintiff.

Woodman & Whitehouse, of Portland, and Tyler, Tucker, Eames & Wright, of Boston, Mass., for defendant.

DEASY, J. To differentiate the aboveentitled suits, the parties being the same in each, we refer to the first as the "Ore Case" and the other as the "Water Case." The parties are Maine corporations operating mines on contiguous claims in Arizona.

Equity jurisdiction is invoked under R. S. c. 82, § 6, par. 11, also section 8.

Substantially identical suits were first brought in Massachusetts, there reported to the full bench, and after hearing ordered dismissed. Arizona Mining Co. v. Iron Cap Copper Co., 233 Mass. 522, 124 N. E. 281.

It is contended by the defendant that the Massachusetts judgments are conclusive, and that the questions now presented to this court are res judicata. We are of opinion that this contention is not sound. The Massachusetts court indeed discusses the 'difficulties which can be avoided without apparent hardship to the plaintiff if it brings these suits in the courts of Arizona," but its reason for declining jurisdiction is thus stated:

"The parties plaintiff and defendant are both nonresidents. The courts of equity in this state are not open to them as matter of right but only as matter of comity."

If the parties had been Massachusetts corporations the court of that commonwealth might have looked further into the merits before refusing to take jurisdiction.

The cases are reported on bills, pleas, and demurrers. No evidence is presented. In each case it is stipulated that if the demurrer is sustained or the plea adjudged sufficient the bill is to be dismissed. Otherwise the time for filing answer is to be extended. For present purposes we must accept the allegations of the pleas as true and those of the bills as true except as contradicted by the pleas.

Ore Case.

The plaintiff alleges that the defendant has taken, converted, and sold some 250,000 tons of its (the plaintiff's) ore, and brings suit for the money had and received by the defendant for the same.

The bill in equity, after specifying certain mining properties owned by the plaintiff and certain other and adjacent properties and workings in possession of the defendant, including the "Iron Cap" and "Williams" shafts, says:

"Continuously during the six years last past, the respondent has taken by way of said Iron Cap shaft and said Williams shaft and other nearby shafts on the property occupied by the respondent, and underground workings connected with each shaft, and converted to its own use, certain ores, and has sold and has had and received to the complainant's use money for all said ores, and ah 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 claim aforesaid, owned by the complainant, and wholly within the complainant's surface lines aforesaid and not elsewhere, and said portions of said veins, lodes, or ledges aforesaid from which such ores came were at the time in the actual possession of the complainant."

The defendant by its plea replies:

"That this defendant has not at any time during the period complained of in the plaintiff's bill taken or removed any ores as to which the plaintiff claims to have had title or ownership, except ores extracted from real estate wholly without this state, to wit, veins, lodes, and ledges in the state of Arizona, as to which the defendant in good faith nas at all times openly and to the knowledge of the plaintiff claimed and now claims title and ownership under the laws applicable thereto; * * * and that the plaintiff has had no access to the workings in those portions of the veins, lodes, and ledges underneath the surface of the defendant's lands and claims as aforesaid, from which the defendant has extracted, taken, and removed ores but said workings and all access and means of access thereto have been in fact in the exclusive occupation, possession, and control of the defendant, and during all of the period complained of in the plaintiff's bill, and prior thereto, the defendant has openly and with the knowledge of the plaintiff continuously worked upon and extracted ores from such veins, lodes, and ledges, under claim of title thereto made in good faith."

In Maine the proprietor of lands owns all of the soil, rock, ore, and other natural products lying directly beneath the surface. His boundaries are planes produced by projecting his boundary lines vertically downward and upward. But a different rule prevails in the case of mining claims derived from the public domain. The boundaries of such claims are governed by the so-called "apex law," which gives to the locator:

"The exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from the perpendicular in their course downward as to extend outside the vertical sidelines of such surface locations." U. S. Rev. St. § 2322 (U. S. Comp. St. § 4618).

The defendant contends that for four reasons the bill should be dismissed:

(1) That mortgagee should have been made a party.

It is alleged in the bill that "the only property which the respondent has in the state of Arizona is covered by a mortgage" for its full value. One of the grounds of demurrer is the nonjoinder of the mortgagee.

If it appeared that an existing mortgage covered the lode from which the ore in question was severed the point might be well taken. But the bill which discloses that the defendant's property is mortgaged also declares that the lode is not the property of the defendant.

The plea does not refer to the mortgage. As a whole, the bill must be taken as true; not so its every individual allegation forcibly separated from the context.

It does not appear from the bill that the ore involved in this suit is subject to mortgage.

(2) That defendant had disseized the plaintiff.

The defendant contends that the plea is sufficient, and that therefore according to the stipulation the bill must be dismissed beause it appears that the defendant at the time it took the ore was a disseizor. Quoting from the defendant's brief:

"Even the owner of land who has been disseized cannot maintain trespass * * * nor assumpsit for money had and received."

Many authorities support the contention that this action would be defeated if it appeared that at the time of the alleged conversion the defendant had disseized the plaintiff. Abbott v. Abbott, 51 Me. 575; Mansur v. Blake, 62 Me. 38; Allen v. Thayer, 17 Mass. 302; Bigelow v. Jones. 10 Pick. (Mass.) 164; Downs v. Finnegan, 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. 488 J Parks v. Morris, 63 W. Va. 51, 59 S. E. 753.

The plea in the instant case does not expressly or by implication allege the plaintiff's disseizin. The bill alleges actual possession and right of possession in the plaintiff. The plea carefully avoids contradicting the plaintiff's claim of possession. It indeed alleges exclusive possession of the workings and means of access to the vein, lode, or ledge from which the ore was taken, and it alleges that the defendant extracted the ore openly with the plaintiff's knowledge and under a bona fide claim of title. But this falls short of claiming disseizin.

An indispensable feature of disseizin is ouster. Disseizin is accomplished by excluding, evicting, ousting the owner from possession. Disseizin is that kind of possession which, continued for 20 years, ripens into title. Worcester v. Lord, 56 Me. 268, 96 Am. Dec. 456; Roberts v. Miles, 95 Me. 245, 49 Atl. 1043; Hume v. Packing Co., 51 Or. 237, 83 Pac. 391, 92 Pac. 1071, 96 Pac. 865, 31 L. R. A. (N. S.) 396, 131 Am. St Rep. 732; Towle v. Ayer, 8 N. H. 59; Unger v. Mooney, 63 Cal. 590, 49 Am. Rep. 100; 3 Blackst. Com. 169; 14 Cyc. 519.

The defendant does not allege ouster. An allegation of exclusive possession might be equivalent to ouster, but there is no allegation of exclusive possession by the defendant of the vein, lode, or ledge.

A man may have exclusive possession of the only road leading to an orchard, and may have taken apples openly and under a claim of title, but unless he ousts the owner from the possession of the orchard he is not a disseizor. If by reason of the plaintiff's disseizin the present action cannot be maintained here, neither trover nor trespass quare clausum can be maintained here or anywhere. If the defendant's contention prevails, the only remedy of the plaintiff is an action of ejectment to recover possession of property of which, according to the pleadings, it now has possession.

(3) That title to Arizona real estate is involved.

(a) No suit can be maintained in one state to directly determine the title to real property in another state. Citation of authorities is unnecessary to support this elementary proposition.

(b) No action of trespass or other action for injury to real property in another state can be maintained here. In a few jurisdictions the contrary is held. Little v. Railway Co., 65 Minn. 48, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421. But the great weight of authority is to the effect that a suit to recover damages for...