Birchfield v. Thiercof
| Citation | 5 Ariz.App. 484,428 P.2d 148 |
| Decision Date | 26 May 1967 |
| Docket Number | CA-CIV,No. 2,2 |
| Parties | Howard A. BIRCHFIELD, Sr., Appellant, v. C. THIERCOF and Joffre Marcil, Appellees. 290. |
| Court | Court of Appeals of Arizona |
Cattany & Howe, by Robert E. Cattany, Tucson, for appellant.
Smitherman & Whitney, by James D. Whitney, Bisbee, for appellees.
This is an appeal from a quiet title judgment as to four unpatented mining claims in Cochise County. Both the plaintiffs and the defendant moved for summary judgment and the trial court granted the motion of the plaintiffs.
The area of the four lode claims in question was originally located in 1946 by M. W. Fry and Alva Green. The claims were given the names Lone Star Nos. 1 through 4 inclusive. There is no issue raised as to the validity of these original claims. The plaintiffs allege that they are the successors in interest of these original claimants. In affidavit form, they presented satisfactory evidence of a chain of title from the aforesaid M. W. Fry and Alva Green through various successors in interest to a grantee designated, in a deed executed June 22, 1950, as 'Fluorspar Producers Corporation.' There is a gap in the chain of title at this point in the record below, the next conveyance being from 'Arizona-Eastern Fluorspar Corportion' to one of the plaintiffs, the deed being dated April 23, 1957, and recorded January 27, 1964. 1 The complaint herein was filed on August 28, 1964.
In addition to the foregoing, there were presented to the lower court uncontroverted affidavits that Arizona-Eastern Fluorspar '* * * expended approximately $40,000 in development work * * *' on these claims in 1953; and, that the plaintiffs did the annual assessment work on the claims in question from 1958 through 1963 inclusive. Other than the foregoing, the record shows no possessory acts on the part of the plaintiffs as to these claims.
Affidavits also establish that since November of 1963, the defendant has been in actual possession of said mining claims, and that in August of 1964, one of the plaintiffs and an agent attempted to go upon the claims to do the annual assessment work and were forcibly prevented from entering the claims by the defendant and his agents.
According to the record before us, in November of 1963, a certain Mrs. Gabriel M. Camara had located the claims in question and in April of 1964 she conveyed her interest in these mining claims to the defendant. Subsequently, the defendant relocated the claims, changing the names from Lone Star Nos. 1 through 4 to H and D Mine Nos. 1 through 4. There is no question but what these locations of Mrs. Camara and the defendant were proper, providing the claims were open to location at the respective times. The entry of Mrs. Camara and the defendant upon these claims appears from the record to have been a peaceful one.
In considering whether a summary judgment was properly rendered, this court must give to the party against whom judgment was rendered the benefit of any doubts left open by the record presented below. Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 368 P.2d 317 (1962); Elerick v. Rocklin, 102 Ariz. 78, 425 P.2d 103 (1967). The rule of procedure under which this judgment was rendered particularizes the requirements:
(Emphasis added.) 16 A.R.S. Rule 56(e), Rules of Civil Procedure.
The only chink in the plaintiffs' armor in this case appears to be the gap in their chain of title, and they attempt to obviate this defect by relying upon an affidavit of one of the plaintiffs which contains the following verbiage:
'That Arizona-Eastern Fluorspar Corporation was incorporated August 20, 1952, and in December 1952 issued 77,650 of its shares to Fluorspar Producers Corporation in consideration of all the assets of Fluorspar Producers Corporation being assigned to Arizona-Eastern Fluorspar Corporation and the assumption by the latter of all the liabilities of the former; * * *.'
The affidavit within which this language is contained was given by the plaintiff Marcil. Nowhere in the affidavit is there any showing as to how the affiant might be 'competent to testify to the matters stated.' Neither does it appear from the contents of the affidavit that its material parts are statements made on personal knowledge so as to satisfy the requirements of Knight v. DeMarcus, 102 Ariz. 105, 425 P.2d 837 (1967). We hold that the affidavit does not satisfy the requirements as to testimonial qualifications, above quoted.
Filed with the affidavits of the plaintiffs, but not incorporated by reference therein and not mentioned in the plaintiffs' motion for summary judgment, are facsimile copies of instruments that purport to be minutes of the board of directors of Arizona-Eastern Fluorspar Corporation, Fluorspar Producers Corporation and Lone Star Mines Corporation, which minutes authorize a merger of these corporations. There is also filed in similar unauthenticated form a facsimile copy of what purports to be an agreement among these same three corporations to effect a merger. These documents do not comply with the requirement of the subject rule that 'sworn or certified copies of all papers * * * referred to in an affidavit shall be attached thereto * * *' and hence lend no support to the judgment rendered below.
Apparently anticipating that this court would hold, as we do, that there is a break in their chain of title, the plaintiffs argue that the judgment below was properly rendered in their favor because this is a 'possessory action,' and they, having been in possession of the subject claims prior to any possession of the defendant, have thus established a better right. The plaintiffs rely upon the decisions of Bagg v. New Jersey Loan Company, 88 Ariz. 182, 354 P.2d 40 (1960), and Woolsey v. Lassen, 91 Ariz. 229, 371 P.2d 587 (1962). They also contend that they are entitled to recover under the doctrine of adverse possession for the statutory period of ten years.
We do not find the Bagg and Woolsey decisions to be apposite. In both cases, there was evidence of actual possession of the disputed claims in the prevailing party at the time of the subsequent entry held to be illegal.
In Bagg, the subsequent entry of Bagg was made when he was in the course of his employment by Arizona Mining Corporation, a predecessor in interest of the plaintiff. He had been employed to do assessment work on and '* * * to exercise a custodial function * * *' (88 Ariz. at 185, 354 P.2d 40), over the claims, a portion of which he attempted to jump. It was not contested in the case that at the time of his entry to relocate, the plaintiff's predecessory in interest was '* * * in possession * * *' of the 'Hillside' claim, one of those relocated by Bagg (88 Ariz. at 186, 354 P.2d 40). As to the other claim jumped, the 'Virginia No. 1,' the court predicated its decision only on 'bad faith' (88 Ariz. at 192, 354 P.2d 40), a doctrine providing ample justification to rest the entire decision as to all the claims in dispute in Bagg.
In Woolsey, the actual prior possession of the prevailing party is noted in the following language:
'At that time (time of Woolsey's entry upon the claim in dispute) the defendant, Pima Mining Company, was in possession conducting an extensive pit copper mining and milling operation.' 91 Ariz. at 232, 371 P.2d at 589.
Here, the only actual possession of the plaintiffs established by the record is such possession as might result from doing 'development work' in 1953 and the annual assessment work from 1958 through 1963 inclusive. There is no showing that the plaintiffs were doing any mining upon the subject property during this latter period of time nor is there any showing that they maintained a watchman on the property or in any other way had actual possession at the time of defendant's entry in November, 1963.
Inasmuch as the plaintiffs defend the judgment rendered below both on doctrines of prior possession and adverse possession, we consider the respective natures of (1) the 'prior possession' without good title, which will be protected against intrusion, and (2) the possession necessary to establish a right to patent to a mining claim upon federal public domain under the doctrine of 'adverse possession.'
General statements of law as to the essentials of the possession required under these two doctrines have much in common. In Bagg, supra, our Supreme Court indicated that in a 'possessory action' the possession to be protected was a 'peaceable possession' (88 Ariz. at 188--189, 354 P.2d 40) and 'prior and subsisting possession' (88 Ariz. at 191, 354 P.2d 40). A leading encyclopedia indicates that this type of protection is granted to 'one who is in bona fide possession and working the claim.' (58 C.J.S. Mines and Minerals § 139, p. 245.) In Harris v. Equator Mining and Smelting Co., 8 F. 863 (C.C., D.Colo.1881), a prior possession case, the court indicated that it was a '* * * locator in actual occupancy, who has been evicted by a wrongdoer * *...
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