Bowen v. Chemi-Cote Perlite Corp.

Decision Date24 January 1967
Docket NumberCA-CIV,CHEMI-COTE,No. 2,2
Citation423 P.2d 104,5 Ariz.App. 28
PartiesArthur C. W. BOWEN, Appellant, v.PERLITE CORPORATION, a corporation, Appellee. * 248.
CourtArizona Court of Appeals

Engdahl, Jerman, Butler & Estep, by Dean Estep, Phoenix, for appellant.

Spector & Johnson, by R. E. Johnson, Phoenix, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment rendered in favor of a lode mining claimant as against a placer mining claimant as to public lands belonging to the United States of America situated in Pinal County, Arizona. The contest involves two lode claims of approximately 20 acres each as opposed to two placer claims of approximately 160 acres each. The lode claims were located in 1944 under the names 'Mary T' and 'Sandy No. 2.' The placer claims, which include the same areas as the lode claims and more land in the immediate area, were located in 1950 and 1954, respectively. The appellee, Chemi-Cote Perlite Corporation, hereinafter referred to as Chemi-Cote, is the successor in interest to the original lode claimants. The appellant, Bowen, is the successor in interest to the eight persons who originally located each of these placer claims.

As to each of the mining claims in question, the validity of the claim is based upon the discovery of perlite, a non-crystalline rock having a peculiar physical structure which has entrapped within it three to five per cent of water. When crushed and exposed to high temperatures, the rock expands and pops similar to popcorn to form a lightweight porous material with many uses.

The testimony at the trial below, without a jury, was directed entirely at the question of whether the mineral in question should be located as a lode or as a placer under applicable federal law. It was conceded by the opposing parties that all of the mining claims in contest, both placer and lode, had been properly located and were valid, provided that the discovery of the perlite in question was sufficient to support the particular type of claim made.

At the conclusion of the trial, the trial court found:

'1. That the mining claims known as 'Mary T' and 'Sandy No. 2' in Sections 8 and 9, Township 2 South, Range 12 East, Gila and Salt River Base and Meridian were validly located as lode claims in April, 1944, by plaintiff's predecessors in possession and with the knowledge of defendant Bowen.

'2. That plaintiff and its predecessors having (sic) been in continuous possession and performed necessary annual assessment work of the 'Mary T' and 'Sandy No. 2' mining claims since the date of the original location of same.

'3. That this is a possessory action and this Court has jurisdiction over the parties hereto and the subject matter, namely, the right of possession to said claims.

'4. That the right of possession of plaintiff to the 'Mary T' and 'Sandy No. 2' mining claims is superior to that of the defendants.'

On the basis of these findings, the trial court entered judgment in favor of Chemi-Cote, quieting its title to the 'right of possession' to the two lode mining claims in question, and denying Bowen judgment on his counterclaim to quiet his title to these mining claims and to recover damages for wrongful removal of ore therefrom.


The first question raised on appeal is whether the lower court had jurisdiction of the subject matter of the suit. The appellant's contention that jurisdiction was lacking is based upon the fact that an application for patent had been filed by Bowen with the Bureau of Land Management prior to the commencement of the action below as to the two placer claims in question. This application was posted and published as required by applicable law, 30 U.S.C.A. § 29, and no adverse claim was filed by Chemi-Cote with the Land Office within the sixty days permitted by this law.

Bowen relies upon the decision of Warnekros v. Cowan, 13 Ariz. 42, 108 P. 238, 239 (1910), as establishing lack of jurisdiction. In Warnekros it was held that, when a lode mining claimant makes application for patent, and no adverse claim is filed by a conflicting lode mining claimant within the time permitted, a quiet title complaint, similar to that filed herein, should be dismissed for lack of jurisdiction in the lower court. Our Supreme Court said:

'Upon the filing of an application for patent to public mineral land, the jurisdiction of the Land Office becomes exclusive as to all questions affecting the title to the lands therein applied for, and so remains until the final determination of the application.'

13 Ariz. at 45, 108 P. at 239.

'There is no allegation that the plaintiffs or either of them have filed an adverse claim therein. It appearing that the subject-matter of the action is within the exclusive jurisdiction of the Land Office, the demurrer to the jurisdiction of the trial was properly sustained.'

13 Ariz. at 47, 108 P. at 240.

The broad language of Warnekros finds support in encyclopedic law. 42 Am.Jur. Public Lands § 57, p. 835; 73 C.J.S. Public Lands § 186(a), pp. 847--848. However, there are well-established exceptions to this rule of exclusive jurisdiction in the Land Department in the area of possessory actions. Generally, it may be said that pending a determination of an issue in the Land Department, rights of temporary possession may be determined by a state court of competent jurisdiction. Hulsebus v. McConnell, 46 Ariz. 371, 51 P.2d 259 (1935); Northern Pacific Railroad Co. v. McComas, 250 U.S. 387, 39 S.Ct. 546, 63 L.Ed. 1049 (1919); Gauthier v. Morrison, 232 U.S. 452, 34 S.Ct. 384, 58 L.Ed. 680 (1914); 73 C.J.S. Public Lands § 186(a), p. 848; 42 Am.Jur. Public Lands § 70, p. 846. A general statement of this law is as follows:

'Also, prior to the time when the disposition of the land has passed from the control of the land department and pending a contest in the department, The courts may and will protect the rights of the partics as far as this may be done without ciding the controversy before the department.' (Emphasis added)

73 C.J.S. Public Lands § 186(a), p. 848.

In determining rights to possession of public lands, the state courts must necessarily construe federal statutes:

'In exercising jurisdiction to determine the possessory interests as between appellants and the irrigation district, the state court may be required to determine the mineral or non-mineral character of the land and the question of whether discovery has been made, where such a determination is necessary to settle the controversy before it. See McLemore v. Express Oil Co., 1910, 158 Cal. 559, 112 P. 59; Double Eagle Mining Co. v. Hubbard, 1910, 42 Cal.App. 39, 183 P. 282. We agree with the view of the California courts that it is not improper for state courts to make such a determination but such determination affects only the possessory interests of the litigants and has no effect upon the paramount title of the government. See Potter v. Randolph, 1899, 126 Cal. 458, 58 P. 905; Lightner Mining Co. v. Superior Court, 1910, 14 Cal.App. 642, 649, 112 P. 909.'

Duguid v. Best, 291 F.2d 235, 239 (9th Cir. 1961).

To the extent that the validity of the Chemi-Cote lode claims was at issue in the patent application proceeding, under the above general law, it is arguable that any decision of the state court pertaining to rights of possession would only be temporary pending the final decision rendered in this regard by the Land Department. An example of such a decision holding that state court's jurisdiction to try possession will be limited to the determination of temporary possession until the final determination in the Department of the Interior is that of Perry v. Erling, 132 N.W.2d 889 (N.D.1965). In this regard, the North Dakota Supreme Court stated:

'The questions of whether the receiver's receipt should be cancelled or whether a patent should be issued are wholly within the jurisdiction of the Department of the Interior of the United States and Are now at issue in a proceeding before the Secretary of the Interior. This court is therefore without jurisdiction to make an adjudication that defendants Erling et al. have title. However, since the record shows that the defendants Erling et al. are in possession of the land under color of title, they are entitled to have that possession protected until the issue of title is decided by the Department of the Interior of the United States. They are therefore entitled to an injunction enjoining the plaintiff and the other defendants from interfering with that possession until such time as the issue of title is decided.' (Emphasis added)

132 N.W.2d at 899.

However, we believe it to be equally clear from this general body of law that if the question of the validity of the Chemi-Cote lode claims was not at issue in the proceeding pending before the Land Department, then it was within the general jurisdiction of the state court to conclusively determine the validity of the Chemi-Cote lode claims as between the parties before it.

It should be noted the doctrine of recognizing exclusive jurisdiction in the Land Department as to controversies pending before it goes beyond the ordinary rules pertaining to the conflict of jurisdictions between courts in In personam and In rem actions. As to the former, no defect in jurisdiction is found unless '* * * the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded.' Allen v. Superior Court of Maricopa County, 86 Ariz. 205, 209, 344 P.2d 163 (1959); also see 20 Am.Jur.2d Courts §§ 128, 129, pp. 481--489, and 21 C.J.S. Courts § 492, p. 745. As to In rem or Quasi in rem actions, the general law is that when a court takes into its possession or control a Res involved in litigation, it exercises exclusive jurisdiction over that Res and another court cannot interfere with such possession or control. 21...

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  • Tonnemacher v. Touche Ross & Co.
    • United States
    • Arizona Court of Appeals
    • February 8, 1996
    ...Co., 119 Ariz. 552, 582 P.2d 642 (App.1978), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978); Bowen v. Chemi-Cote Perlite Corp., 5 Ariz.App. 28, 423 P.2d 104 (1967), rev'd, 102 Ariz. 423, 432 P.2d 435 (1967). 6 In Nogales, the court affirmed the dismissal of a federal antitr......
  • Mills v. Royse
    • United States
    • Arizona Court of Appeals
    • October 9, 1975 a fact question and that the location prior in time was upheld over a subsequent location. See also Bowen v. Chemi-Cote Perlite Corp., 5 Ariz.App. 28, 423 P.2d 104 (1967), reversed on other grounds at 102 Ariz. 423, 432 P.2d 435 (1967). In a case similar factually as to this one, Titaniu......
  • Cole v. Gerhart, 2
    • United States
    • Arizona Court of Appeals
    • January 27, 1967
  • Velasco v. Mallory, 2
    • United States
    • Arizona Court of Appeals
    • April 27, 1967 a possessory action between the parties. Bagg v. New Jersey Loan Co., 88 Ariz. 182, 354 P.2d 40 (1960); Bowen v. Chemi-Cote Perlite Corp., 5 Ariz.App. 28, 423 P.2d 104 (1967). Appellants, Bernardo C. Velasco, et al., initiated an action in the superior court in Gila County, seeking to qu......
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1 books & journal articles
    • United States
    • FNREL - Special Institute Mineral Patenting Procedures (FNREL)
    • Invalid date
    ...Perlite Corp. v. Arthur C. W. Bowen, 72 I. D. 403, GFS (Min) SO-41 (A-30404, Sept. 30, 1965); Bowen v. Chemi-Cote Perlite Corp., 5 Ariz. App. 28, 423 P.2d 104 (1967), rev'd 102 Ariz. 423, 432 P.2d 435 (1967). [31] See, e.g., 30 U.S.C. § 37 (1970). [32] See 30 U.S.C. § 29 (1970), Cf. 43 C.F.......

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