Daily Mines Company, a Corp. v. Control Mines, Inc., Civil 4468

• Decision Date: 06 April 1942
• Docket Number: Civil 4468
• Citation: 59 Ariz. 138,124 P.2d 324
• Parties: DAILY MINES COMPANY, a Corporation, Appellant, v. CONTROL MINES, INC., a Corporation; and HAZEL WILSON DAILY, as Administratrix of the Estate of W. H. Daily, Deceased, HAZEL WILSON DAILY, Individually, J. EDGAR ATKINS, DR. H. G. BONNELL and FRANCIS M. HARTMAN, Interveners, Appellees
• Court: Arizona Supreme Court

124 P.2d 324

59 Ariz. 138

DAILY MINES COMPANY, a Corporation, Appellant, v. CONTROL MINES, INC., a Corporation; and HAZEL WILSON DAILY, as Administratrix of the Estate of W. H. Daily, Deceased, HAZEL WILSON DAILY, Individually, J. EDGAR ATKINS, DR. H. G. BONNELL and FRANCIS M. HARTMAN, Interveners, Appellees

Civil No. 4468

Supreme Court of Arizona

April 6, 1942

APPEAL from a judgment of the Superior Court of the County of Pima. J. C. Niles, Judge. Judgment affirmed.

Mr. Tom K. Richey, and Messrs. Baker & Whitney, for appellant.

Mr Francis M. Hartman, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an action in forcible detainer by Daily Mines Company, a corporation, plaintiff against Control Mines, Inc., a corporation, defendant, and others. Judgment of not guilty was rendered, and after the usual preliminary steps, this appeal was taken.

It is apparently agreed by plaintiff and defendant that the real question for our decision is whether there is legal evidence to sustain the finding of the trial court that defendant did comply with the terms of the lease under which it held possession of certain mining property belonging to plaintiff. In passing upon the appeal, there are certain principles of law governing our consideration thereof, which cannot be disputed: (a) If there is reasonable evidence to support the findings of fact of the trial court, they will be sustained by this court. Glaspie v. Williams, 46 Ariz. 381, 51 P.2d 254. (b) If there is sufficient legal and competent evidence to support such findings, the erroneous admission of other evidence by the trial court will not justify a reversal of the case. First Baptist Church v. Connor, 30 Ariz. 234, 245 P. 932; Glaspie v. Williams, supra. (c) If different inferences as to the ultimate facts may be drawn from evidentiary facts, we must accept the inference drawn by the trial court. First National Bank v Osborne, 39 Ariz. 107, 4 P.2d 384.

In September, 1939, plaintiff leased certain mining properties to one R. A. Burney. This lease contained, among other things, the following provisions:

(a) "Lessee shall furnish a proper and suitable mill for the proper treatment of the ores from said claims and shall have the same in operation and milling said ore on or before the 1st day of January, 1940, and shall thereafter properly mill and treat at least 1,000 tons of ore from said claims each month during the life of this lease; Provided however, that if, with proper and continuous mining on said claims, Lessee shall be unable to extract 1,000 tons of ore from said claims, in any month during the life of this lease, that then and in that event, Lessee shall mill and treat all ores extracted from said claims in such month and shall diligently and continuously prosecute development work on said claims to bring production of ores from said claims to the said minimum of 1,000 tons per month for milling and treatment as provided herein; and Provided further, that if the price of copper shall fall to nine cents or less per pound during the life of this lease, Lessee shall have the privilege of suspending mining and milling operations under this lease, without however, forfeiting or abandoning the same, and upon the restoration of the price of copper to more than nine cents per pound, Lessee shall resume mining and milling operations hereunder and carry same on as before the exercise of said privilege.

"...

(b) "Lessee may at once enter upon and take possession of said claims for the purposes herein defined, and beginning with the month of November, 1939, shall do and perform at least one hundred shifts of development and mining work and labor on said claims each month during the life of this Lease, except as herein otherwise provided, and in doing and performing said work and labor Lessee shall keep the development work ahead of production.

(c) "All work done on said claims by Lessee shall be done in a good, substantial, minerlike manner, timbering and ventilating where good mining calls for same, impounding and preserving the tailings from said mill operations and the placing and piling of debris, rock, dirt and refuse resultant from the extraction and seeking for ores shall be done in a proper and minerlike manner, with a view to future convenience and economy in carrying on the mining and development of said properties.

"...

(d) "Lessee shall keep accurate reports, assay sheets, maps and plats of underground workings, logs of diamond drill operations, including assay maps thereof, recommendations and suggestions of engineers and computations of dimensions and possible tonnage of ore bodies discovered or developed, and shall furnish Lessor with a correct copy of same each month as operations progress under this Lease.

"...

(e) "Should Lessee fail to do any of the things herein specified to be done by Lessee at the time and place herein mentioned, Lessor may declare this Lease at an end and recover possession as if said premises were hold by forcible detainer."

This lease was later assigned to defendant herein. On September 19, 1940, plaintiff served the following notice on defendant:

"Tucson, Arizona, September 19, 1940.

"Control Mines, Inc.,

"Oracle, Arizona.

"Gentlemen:

"You are hereby notified that the undersigned Daily Mines Company, elects to do and does hereby declare at an end that certain lease and indenture made on September 25th, 1939, between Daily Mines Company, party of the first part, therein called Lessor, and R. A. Burney, party of the second part, therein called Lessee; the interest of the said R. A. Burney in said lease and indenture having been assigned to Control Mines, Inc. under date of October 30th, 1939. The aforesaid action on the part of and by Daily Mines Company is taken under authority of that certain paragraph appearing on page 5 of said lease and indenture and which said paragraph reads as follows: -- (quoting par. (e) of lease).

"This action is taken for the reason that you have failed, neglected and refused to do and perform the following things specified in said lease and indenture to be done and performed by you: -- (setting forth the substance of paragraphs (a), (b), (c) and (d) of lease).

"You are hereby required to cease all operations on the properties and claims covered by or described in said lease, whether mining, milling or other operations, and to vacate all of said properties at once, and demand is hereby made that you deliver possession of said properties to Daily Mines Company, a corporation, on or before ten days from the date of the service of this notice and demand for possession.

"Yours very truly,

"Daily Mines Company

By J. W. Daily, President."

to which defendant promptly answered on September 24th, as follows:

"The Control Mines, Inc., has complied and is now complying fully and completely with all the terms and conditions of that certain lease and option contract made and entered into September 25th, 1939, between Daily Mines Company, as party of the first part, and R. A. Burney, as party of the second part.

"The Control Mines, Inc., will not cease operations on the properties and claims covered by said lease and option contract.

"The Control Mines, Inc., will not vacate said properties, and will not deliver possession of said properties to Daily Mines Company."

On October 15 this suit was commenced. After considerable delay, which apparently was acquiesced in by both parties, the case was tried before the court without a jury, and judgment was rendered of not guilty. After considerable discussion and delay, the court filed findings of fact, which held that defendant did not violate the terms of its lease. These findings are as follows:

"1. (a) The defendant, Control Mines, Inc., from November, 1939 to September 30, 1940, mined and milled from the Daily Mine, over 15,000 tons of ore which yielded a grade of less than 2% copper, not high enought to yield a profit.

"(b) The defendant, Control Mines, Inc., was unable, with proper and continuous mining on said Daily Mine, to extract 1,000 tons of ore therefrom, for each of the months of May, June, July, August and September, 1940; but did, during each of said months, mill and treat all ores extracted from said mine; and did, during each of said months diligently and continuously prosecute development work on said mine.

"(c) From February to September, inclusive, 1940, the price of copper as paid for by the smelter, was less than nine cents per pound.

"2. Defendant, Control Mines, Inc., during each of the months of November and December, 1939, January, February, March, April, May, June, July, August and September, 1940, performed at least one hundred shifts of development and mining work and labor on said mine; and in doing and performing said work and labor kept the development work ahead of production.

"3. All work done on said mine by defendant, Control Mines, Inc., was done in a good, substantial, minerlike manner.

"4. (a) Defendant, Control Mines, Inc., kept accurate reports and assays of all ore mined, milled and marketed, from said mine, and furnished plaintiff with correct copies of same each month.

"(b) John W. Daily, President and General Manager of plaintiff Daily Mines Company, visited said properties...