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

• Decision Date: 22 September 1919
• Parties: ARIZONA COMMFRCIAL MINING CO. v. IRON CAP COPPER CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 522

124 N.E. 281

ARIZONA COMMFRCIAL MINING CO.

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

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 22, 1919.

Report from Supreme Judicial Court, Suffolk County.

Bills by the Arizona Commercial Mining Company against the Iron Cap Copper Company. On report to the full court by a single justice of the Supreme Judicial Court. Bills ordered dismissed without prejudice.

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

Burton E. Eames and W. C. Rice, both of Boston (Tyler, Tucker, Eames & Wright, of Boston, of counsel), for defendant.

CROSBY, J.

These cases are reported to this court by a single justice, upon the bills as amended and the defendant's demurrers and pleas to the jurisdiction. The plaintiff and the defendant are corporations organized under the laws of the state of Maine; each conducts mining operations in the state of Arizona and has a place of business in Boston.

The first or ‘ore’ suit, so called, is brought to recover a debt for money had and received by the defendant, to the use of the plaintiff for ores, which the plaintiff alleges were its property and were converted and sold by the defendant, and which came from portions of veins of ore owned by the plaintiff, who seeks to reach and apply to the payment of its debt the notes, stock, and bonds referred to in the bill, and to require the defendant to pay the plaintiff the proceeds received from such sales and to enjoin permanently the defendant from continuing to convert the plaintiff's ore. The bill alleges that the mining properties of the plaintiff are contiguous to and adjoin the properties claimed to be owned by the defendant, and that the plaintiff had the right of possession and took and had at all times in question the actual possession of the veins from which the ores described in the bill were extracted and sold by the defendant.

The bill also alleged that the amount of ore so converted and sold by the defendant is in excess of 250,000 tons, and that the amount received to the plaintiff's use from such sales is in excess of $3,000,000; that the defendant has no property which can be attached or taken on execution in an action at law against it sufficient to satisfy the debt of the defendant to the plaintiff; that the defendant owns and has in its possession in Massachusetts certain promissory notes and bonds made by third parties, and certain shares of stock in other corporations which cannot be reached to be attached or taken on execution in an action at law, and that the plaintiff has no complete or adequate remedy at law.

If it be assumed that a personal or transitory action as distinguished from one merely local will lie to recover the value of the ores converted and sold by the defendant (although the title to the veins from which the ore was extracted is involved), and if it be conceded that the remedy sought is for the recovery of a debt within R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531 (Ginn v. Almy, 212 Mass. 486, 99 N. E. 276;Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 119, 103 N. E. 469), the question remains whether, upon the facts as disclosed by the record, our courts will permit the suit to be maintained here or should decline to take jurisdiction.

In the second or ‘water suit,’ so called, the bill alleges that the plaintiff and the defendant occupy and operate mines in the state of Arizona which are adjacent to each other, that the plaintiff and defendant have occupied and operated their respective mines continuously for more than six years last past, that these mines have a common ingress of water, and by reason of subterranean communication of water have a common drainage, and in order that the parties may work either of the mines it is necessary to pump water from both mines; that during all the period above referred to a statute known as ‘Revised Statutes of Arizona 1913’ has been in force in the state of Arizona; Civ. Code, paragraphs 4047 and 4048 being set forth in full in the bill. Other sections of the statute pertinent to the questions involved are set forth in the defendant's plea.

The bill also alleges that by reason of the failure of the defendant to provide for the drainage of its mine the plaintiff has been compelled to pump and drain the water flowing in from the defendant's mine, and has expended as the necessary cost of such pumping and draining a sum in excess of $250,000, and that the defendant's proportion of that expense is in excess of $150,000, which the plaintiff seeks to recover in this suit as a debt due to it from the defendant. The remaining allegations of the bill are similar to those contained in the bill in the first suit hereinbefore referred to.

If it be assumed in this case that the obligation created by the statute of Arizona gives the plaintiff a remedy which can be enforced in our courts, and that the plaintiff's claim is a debt within R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, which may be reached and applied to the plaintiff's demand, the question arises whether, as in the first case, the plaintiff should be allowed to pursue the cause of action here, or our courts should decline to take jurisdiction. It does not appear that the alleged debt in either case has been reduced to judgment. 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. The rule under these circumstances is well established by numerous decisions. It is stated by this court in National Telephone Mfg. Co. v. Du Bois, 165 Mass. 117, at page 118,42 N. E. at page 510 (30 L. R. A. 628, 52 Am. St. Rep. 503), in these words:

‘If it appears that complete justice cannot be done here, or that the amount involvedis small and the defendant will be subjected to great and unnecessary expense and inconvenience, and that the...