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

• Decision Date: 24 June 1920
• Parties: ARIZONA COMMERCIAL MINING CO. v. IRON CAP COPPER CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 185

128 N.E. 4

ARIZONA COMMERCIAL MINING CO.

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

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1920.

Appeal and Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Actions by the Arizona Commercial Mining Company against the Iron Cap Copper Company. Demurrers to the declarations and answers in abatement were filed by defendant. The demurrers being sustained and the answers in abatement adjudged good, the actions were dismissed for want of jurisdiction, and plaintiff appeals and alleges exceptions. Exceptions overruled, and appeals dismissed.

See, also, 233 Mass. 522, 124 N. E. 281.

Edward F. McClennen, Dunbar, Nutter & McClennen, and Edward S. Goulston, all of Boston, for appellant.

Burton E. Eames, William C. Rice, and Franklin King, all of Boston (Tyler, Tucker, Eames & Wright, of Boston, of counsel), for appellee.

RUGG, C. J.

These are actions at law with counts in contract and in tort. In each case the defendant filed a demurrer and also an answer in abatement. In the superior court the demurrers were sustained and the answers in abatement adjudged good and the actions were dismissed for want of jurisdiction.

The plaintiff and defendant each is a corporation organized under the laws of Maine, conducting mining operations in Arizona and having a usual place of business in this commonwealth.

The Ore Action.

The declaration in the ore action, so called alleges that the plaintiff is the owner in fee simple in possession of mining properties in Arizona, its title being derived from patents from the United States issued under mining laws whereby the plaintiff acquired the right to and took and has ever retained possession of all mineral veins, lodes and ledges throughout their entire depth, the top or apex of which lie inside of the surface lines of said claims extended downward although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations; that the defendant has been in possession of a certain mining shaft whereby it has taken and converted to its own use large amounts of ore from veins, lodes and ledges which had their respective tops or apexes upon mining claims owned by the plaintiff and wholly within the plaintiff's surface lines and in the actual possession of the plaintiff, and has sold and received large sums of money therefor. The declaration, while asserting a title to land in Arizona, is drawn for conversion of the ore as personal property and for money had and received from the sale of the same as personal property, and expressly excludes claim for damage to the realty in Arizona.

The answer in abatement avers that the defendant has not taken any ores claimed by the plaintiff except ores extracted from real estate in Arizona to which the defendant in good faith has 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 such ores have been extracted from veins, lodes and ledges underneath the surface of lands and claims owned by the defendant and within surface boundaries thereof projected vertically downward, and that the defendant has been at all times in actual possession of the entire surface and the mining operations underneath the same to the complete exclusion of the plaintiff, and that its extraction of such ores has been open, to the knowledge of the plaintiff and under claim of title made in good faith. The answer in abatement must be accepted as true upon this record.

Both the plaintiff and the defendant being nonresidents of this commonwealth, considerations which might be pertinent in actions between our own citizens are laid on one side.

The allegations of the declaration appear to be sufficient under general principles of mining law to show title in the plaintiff to the veins or lodes from which the defendant is alleged to have taken ore. The ownership and possession of a vein or ore at the surface of the ground carries with it the ownership and possession of the vein throughout its entire depth although so far departing from a perpendicular as to extend outside the vertical side lines of such surface locations. Empire State-Idaho M. & D. Co. v. Bunker Hill & S. M. & C. Co., 58 C. C. A. 315, 121 Fed. 977;Last Chance Mining Co. v. Bunker Hill & S. M. & C. Co., 66 C. C. A. 299, 303, 131 Fed. 579; U. S. Rev. St. § 2322 (U. S. Comp. St. § 4618). These allegations of the declaration, so far as they concern matters of fact, cannot be treated as admitted for the purposes of this decision in view of the defendant's answer in abatement. That answer in effect avers possession and a bona fide claim of title by the defendant. It asserts possession and title directly adverse to the like claims by the plaintiff. At the lowest its averments are sufficient to show possession of that portion of the vein which has been actually worked by the defendant and from which the ore sued for has been extracted. Hunnicutt v. Peyton, 102 U. S. 333, 368, 26 L. Ed. 113;Montana Mining Co. v. St. Louis Mining & Milling Co., 204 U. S. 204, 216-218, 27 Sup. Ct. 254, 51 L. Ed. 444. It would be too narrow a construction of the answer in abatement to interpret it as not a denial and therefore an admission of the plaintiff's title to the ore and to the veins from which it came and the plaintiff's actual possession thereof.

It seems to be settled in mining law that title and possession of the surface of land prima facie carries ownership and possession of all beneath the surface, and that such presumption as to minerals may be overthrown by proof that, such mineral is a part of a vein apexing in land or claim belonging to some one else. But that is matter of defense. Lawson v. United States Mining Co., 207 U. S. 1, 8, 28 Sup. Ct. 15, 52 L. Ed. 65. See Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. St. 481, 29 L. Ed. 712;Del Monte Mining & Milling Co . v. Last Chance Mining & Milling Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72.

The record presents a cause arising out of a bona fide adversary dispute as to the title to real estate where the primary question involved is the title. That is the gravamen of the action. The plaintiff on the one side and the defendant on the other each asserts title to real estate. The settlement of that dispute will determine the title to the ore. The only way in which title to the ore can be decided is by settling the dispute as to the title to the land. The action in its essential feature concerns title to real estate and that alone. The title to the personal property is incidental to that main factor and will follow necessarily from the adjudication of the land title. Where the defendant is in adverse possession of the realty under a bona fide claim of title, authorities hold that the thing severed becomes his property, so that the owner of the land cannot maintain trover therefor but must resort to his remedy for possession. Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law, 350, 357, 26 Atl. 920;Bigelow v. Jones, 10 Pick. 161; Duppa v. Mayo, 1 Saund. 285. See R. L. c. 179, § 12.

The owner of land may waive the trespass and, affirming the conversion, sue, in an action for money had and received, one who severs wood, gravel or other parts of the realty from his land and transforms it into money. Jones v. Hoar, 5 Pick. 290;Gilmore v. Wilbur, 12 Pick. 120, 22 Am. Dec. 410;Riley v. Boston Water Power Co., 11 Cush. 11;Phillips v. Bowers, 7 Gray, 21;Anderson v. Todesca, 214 Mass. 102, 100 N. E. 1068. It has been decided, however, that he can do this only when the title to the land is not in dispute between the parties. Where there is honest controversy whether the plaintiff or the defendant is owner of the title, or where the owner has been disseized, then an action for money had and received cannot be maintained for severed wood or other realty. Miller v. Miller, 7 Pick. 136, 19 Am. Dec. 264;Bigelow v. Jones, 10 Pick. 161;Brigham v. Winchester, 6 Metc. 460. These cases were cited with approval in Pickman v. Trinity Church, 123 Mass. 1, 25 Am. Rep. 1. It there was said at pages 5 and 6 of 123 Mass. (25 Am. Rep. 1) that--

‘The law is indeed settled that such a title [that is, the title to real estate] cannot be tried in an action for money had and received.’ That rule ‘does not prevent an action for money had and received in many cases which require an investigation of title. * * * The reasons upon which the rule is founded apply only when the parties to the suit claim the land by adverse titles.’

This last statement is precisely applicable to the facts here disclosed. In Boston v. Binney, 11 Pick. 1, 9 (22 Am. Dec. 353), are found these words:

‘It is said that a party injured may waive the tort and maintain assumpsit. But the defendants have a right to say to the plaintiffs, ‘There has been no tort; there is nothing to waive; the land is mine, not yours.’'

This is in substance the contention of the present defendant according to its answer inabatement. The case at bar appears on this record to be one where the parties as between themselves are at issue concerning adversary titles to the same land. The decision of that issue will put an end to their controversy.

There is nothing discordant with these views in Parks v. Loomis, 6 Gray, 467, where the defendant did not claim title to the land, and as between the parties to that action the title to the land was ‘collateral and incidental.’ The same is true of Schulenberg v. Harriman, 21 Wall. 44, 22 L. Ed. 551. In Rogers v. Woodbury, 15 Pick. 156, the issues made by the pleadings did not involve title to land.

Some cases seemingly assume that it is merely a question of pleading and that, if the cause of action is technically stated in trover or conversion and does not include an averment of injury to realty as a cause of...