Bagg v. New Jersey Loan Co.

• Decision Date: 14 July 1960
• Docket Number: No. 6657,6657
• Citation: 354 P.2d 40,88 Ariz. 182
• Parties: John Sherman BAGG, Appellant, v. NEW JERSEY LOAN COMPANY, a corporation, Appellee.
• Court: Arizona Supreme Court

Page 40

354 P.2d 40

88 Ariz. 182

John Sherman BAGG, Appellant, v. NEW JERSEY LOAN COMPANY, a corporation, Appellee.

No. 6657.

Supreme Court of Arizona.

July 14, 1960.

Pickrell, Hunter, Bartlett & Penn, for appellant.

Carl G. Krook, Kingman, Nicholas Martini, Passaic, N. J., for appellee.

JOHNSON, Justice.

Appeal from judgment of the trial court sitting without a jury quieting plaintiff's right to exclusive possession of certain mineral lands and personal property located thereon, against the defendant Bagg. The parties will be referred to herein as they appeared below.

The relevant facts necessary to the disposition of this matter are these: on August 11, 1953, the Arizona Mining Corporation, a predecessor in interest to plaintiff, by and through its president, John T. Mac-Evoy, appointed John Sherman Bagg, the defendant herein, its agent for the general purposes of supervising operations of the corporation in and around Chloride, Arizona, and to exercise of custodial function over a group of lode mining claims, consisting of both patented and unpatented claims. This group of claims is situated in the Chloride Section of the Wallapai Mining District Mohave County, Arizona, and is commonly known as the 'Samoa Group'. Acting within the scope of his agency, defendant caused certain assessment work to be performed upon four unpatented lode claims of the Samoa group, namely, the 'Hillside', 'Tunnel', 'First of July' and the 'Mountain Side,' this work constituting the annual assessment work of these respective claims for the year ending July 1, 1954, as required by law.

Of the claims forming the Samoa group, this matter focuses attention on the Hillside unpatented lode claim. Serving the claims of the Samoa group is a tunnel some 1,700 feet in length, with its portal on the Hillside claim. Situated below the Hillside claim, and not a part of the Samoa group, is the Virginia No. 1 claim, operated by the Lucky Boy Mining Corporation, encompassing a five-acre tract called the Hillside millsite, which though so denominated, is not a millsite in the mining law sense of the term. Various buildings are located on the millsite, including an office building, a residence and a compressor house.

Defendant predicates his asserted right to the possession of a large sector of the Hillside claim and its personalty, and to the improvements on the millsite, upon a location made by him on June 16, 1955, when he was still an employee or agent of the Arizona Mining Corporation. This location, known as the Bulldog mining claim, includes that portion of the Hillside claim upon which is to be found the portal to the aforementioned tunnel. In addition, the Bulldog location embraces within its boundaries all the millsite improvements with the exception of a portion of the compressor house. Defendant in his own behalf testified that he performed all necessary acts to the valid location of a mining claim and that his discovery work on the Bulldog claim disclosed mineral in place.

Plaintiff, the New Jersey Loan Company, asserts ownership of the Hillside claim by virtue of a mining deed dated August 3, 1955, by which the Arizona Mining Corporation undertook to convey certain patented and unpatented mining claims, the Samoa group, to plaintiff with the personalty thereon situated. Claim of title by plaintiff to the Hillside millsite emanates from a deed dated February 3, 1956, wherein the Lucky Boy Mining Corporation conveyed to plaintiff all surface rights and privileges to the five-acre tract. It will be noted that the filing of the Bulldog location by defendant preceded plaintiff's acquisition of the two deeds.

At the trial, plaintiff, to show its superior title and present possession, introduced into evidence not only the two deeds, but additionally affidavits of labor convering not only the Samoa group, but also the Lucky Boy group, appertaining respectively to the Hillside claim and the millsite. With respect to the claim, affidavits were introduced for the years July 1, 1953 to July 1, 1954, executed by John Sherman Bagg on behalf of the Arizona Mining Corporation; July 1, 1954 to July 1, 1955, by Charles Toos for the New Jersey Loan Company; July 1 1955 to July 1, 1956, by Charles Toos, for the New Jersey Loan Company; and for July 1, 1956 to July 1, 1955, by C. G. Patterson for the New Jersey Loan Company. The latter affidavit also made reference to assessment work performed on the millsite. With respect to the millsite, affidavits were introduced for the years July 1, 1955 to July 1, 1956, by C. G. Patterson for the Lucky Boy Mining Corporation, and July 1, 1956 to July 1, 1957, by C. G. Patterson for the same Lucky Boy Mining Corporation.

It would appear, therefore, and it is not otherwise contested by defendant, that when defendant filed the Bulldog location, on June 16, 1955, the Hillside claim was claimed by and in the possession of the Arizona Mining Corporation. With respect to the status of the millisite, in this matter of possession, prior to and on June 16, 1955, the record is vague and inconclusive, no affidavits of labor on or before that date having been put in evidence, nor other evidence of ownership or possession other than the deed of February 3, 1956 reciting the Lucky, Boy Mining Corporation as grantor. We do not deem this inadequacy in the record, however, as having any material significance, for reasons to be set forth later in this opinion.

By its judgment, the trial court granted plaintiff the relief sought in its first stated cause of action, and as to the second, ordered defendant to surrender to plaintiff the immediate possession of certain items of personalty removed or otherwise kept from plaintiff's control by defendant. To understand the extent of the relief granted plaintiff by the court in regard to plaintiff's first cause of action, we set forth the latter, in pertinent part, as follows:

'Wherefore, plaintiff prays judgment against the defendants:

'1. That said defendants, and each of them, be required to set forth the nature of their several claims, if any they have, and that all adverse claims of said defendants, or any of them, be determined by the Decree of this Court; that by said Decree it be declared and adjudged that the plaintiff is the owner and entitled to the exclusive possession of said Hillside mining claim and said Hillside Millsite, and the improvements and all mining equipment, tools and other personal property thereon, and the lands embraced therein, and that plaintiff's estate therein be established, and that the defendants, and each and all of them, have no estate, title or interest whatsoever in, of or to said mining claims, or any improvements, equipment, machinery and other personal property thereon, or either of them, and the lands embraced therein, or any part thereof, and that said defendants, and each and all of them, be forever barred and estopped from having, asserting, or claiming any right or title to the said premises adverse to the claim, right and title of plaintiff.'

We may therefore proceed upon the assumption of the judgment appealed from is one confirming plaintiff's assertion of ownership of both the Hillsite claim and the Hillside millsite, and of the various improvements and personal property located on the respective properties, and that defendant have no legal interest in any of this.

In his answer, defendant directly confronted plaintiff's assertion of ownership of the two Hillside properties with an assertion of ownership on his onw behalf based upon the purported Bulldog location. Defendant, however, did not allege a forfeiture or abandonment connected with these properties as the basis of his location, rather alleging in effect that plaintiff did not own the properties because at the time of the Bulldog location, they were on public land open to location.

Proceeding upon the hypothesis that plaintiff's action was a suit to quiet its title to the subject properties, defendant offers the general rule in such artions that a plaintiff must succeed on the strength of its own title and not on the weakness of the adversary's title. Applying this rule to the plaintiff, defendant contends that to be entitled to a quiet title decree, plaintiff must show a valid original location or relocation, or in lieu thereof, a consecutive chain of title to it from a valid original locator or relocator, and submits the proposition that a deed from one not shown to have title to land is not sufficient proof of title to sustain a suit to quiet title thereto. Defendant thereupon attacks both the validity and timeliness of plaintiffs' deeds, and in addition relies upon plaintiff's alleged failure to prove sufficient title in its predecessors in interest.

We are not concerned with all this. This is not a quiet title action. The rule of law upon which defendant bases its hopes is that applicable where the fee title is at issue in an 'adverse suit' involving the quieting of title to mining claims after application for patent has been made. Rundle v. Republic Cement Corporation, 86 Ariz. 96, 341 P.2d 226. But there is another action available in certain circumstances, the 'possessory action', the nature of which is set forth comprehensively in American Mining Law, Fourth Edition (edited by A. H. Ricketts) Vol. 1, Ch. XIX, §§ 382, 383, and 384, from which we quote:

' § 382. Introductory

'The main difference between an 'adverse suit' and a 'possessory action' is that in an adverse suit the judgment therein affects the title to the ground in dispute as between the parties thereto and the government and the judgment in a possessory action affects only the title to the ground as between parties litigant. As a general rule an acted in ejectment or a suit to quiet title, as circumstances may dictate, is as proper in the one class of cases as in the other, * * *.

' § 383. Actions

'A possessory action for the recovery of any mining title * * * is adjudged by the...