Firchau v. Barringer Crater Co.

• Decision Date: 30 September 1959
• Docket Number: No. 6667,6667
• Citation: Firchau v. Barringer Crater Co., 344 P.2d 486, 86 Ariz. 215 (Ariz. 1959)
• Parties: Albert J. FIRCHAU, Appellant, v. BARRINGER CRATER CO., a corporation, Appellee.
• Court: Arizona Supreme Court

Page 486

344 P.2d 486

86 Ariz. 215

Albert J. FIRCHAU, Appellant, v.BARRINGER CRATER CO., a corporation, Appellee.

No. 6667.

Supreme Court of Arizona.

Sept. 30, 1959.

Wilson, Compton & Wilson, Flagsataff, and Lewelling & Gies, Salem, for appellant.

Mangum & Christensen, Flagstaff, for appellee.

UDALL, Justice.

This is an appeal by defendantAlbert J. Frichau from an order of the lower court denying a motion to dissolve the temporary restraining order theretofore issued and the granting of an injunction pendente lite to plaintiff-appellee.We shall hereafter refer to the parties as they were designated in the trial court, i. e., plaintiff and defendant.

The facts giving rise to the appeal are as follows: The Barringer Crater Company, a corporation, as plaintiff, on October 23, 1957, brought an action against defendant-appellant, Albert J. Firchau, to quiet its title to:

'* * * sections 13and24, Township 19 North, Range 12 1/2 East, G. & S. R. B. & M., Coconino County, Arizona, together with the placer mining claims designated by the surveyor general of the United States as LotNo. 1806, known as the Venus, Mars, Jupiter, and Saturn Placer Mining Claims.'

Also, injunctive relief and damages were sought against defendant.On the same day the complaint was filed, the plaintiff--without notice to defendant--obtained from the court a temporary restraining order, and an order to show cause on November 1, 1957, why a preliminary injunction should not be ordered pendente lite.A bond of $1,000 was exacted and later furnished by plaintiff.From the court's minutes, dated November 1, 1957, it appears that by stipulation of counsel the hearing on temporary restraining order and order to show cause was ordered continued until November 18, 1957, and the temporary restraining order was directed, in the interim, to remain in full force and effect.

On November 18, 1957, defendant filed his answer wherein he claimed to be in lawful possession of the premises under an express contract in writing for the working, mining and development of said property; and by a seaprate defense and counterclaim he asked for a dissolution of the restraining order and for damages, puls attorney's fees.On the last mentioned date--with all parties represented--a daylong hearing was had on the temporary restraining order and the order to show cause.A half dozen witnesses testified, and numerous decuments were admitted in evidence as exhibits, whereupon the court took the matter under advisement and asked for briefs.Thereafter, on December 24, 1957, there was filed with the clerk a letter from the presiding judge directing the entry of the following order, viz.:

'It is ordered that the injunction now in force be continued, in conformity with the prayer of the complaint, and the Motion to Dissolve said injunction is hereby denied.'

Said order was properly entered and docketed by the clerk.A motion for new trial was filed and denied by operation of law.This appeal, under A.R.S. section 12-2101, subd. F, par. 2, followed.

There are but two assignments of error, the first of which reads:

'The court erred in denying defendants' motion to disslove the temporary restraining order and entering Judgment in favor of plaintiff for the reason and upon the ground that the acts restrained involved the working and mining of a mining claim and was issued without notice to the defendants contrary to the provisions of A.R.S. section 12-1807, and said proceedings were therefore void.'

The section of the code above referred to is as follows:

'An injunction against the working and mining of a lode or mining claim shall not be granted without notice to the opposite party, and no ppreliminary injunction or temporary restraining order shall be issued to prevent the working or mining pending hearing of the application for the injunction.'(Sec. 12-1807)

Though this unique section, unchanged in phraseology, has been a part of our statutory law at least since the adoption of the Civil Code, revised Statutes, 1913(Section 1465)--prior thereto it appeared in substance as Section 2746, R.S. '01--it has never heretofore been interpreted by this court.Its source or purpose and scope is not readily apparent, though possibly it was considered by the legisalture that the ordinary mining claim could hardly be subject to irreparable damage through the continued working or mining of the claim during the period of the notice--this for the reason that the interest of the parties in a mining claim is primarily in the minerals, and not in the property as such.Here, however, we have a much more involved and complicated situation.It will be noted that we are dealing strictly with fee lands and that areas and interests other than the four patented placer claims are sought to be protected.The placer claims in question cover what is known as 'Meteor Crater', created by a falling meteor, which is widely recognized as a scientific phenomenon.It is a tourist and scenic attraction; and this part of the property in question was under lease to the Bar-T-Bar Ranch, Inc. for these purposes long prior to any dealings between plaintiff and defendant.

The following quotation from the temporary restraining order, stating the grounds for its issuance, is self-explanatory:

'The injury, loss and damage which plaintiff claims in the verified Complaint and Motion for this Temporary Restraining Order appears to the Court to be immediate and irreparable for the reason that it is represented by said Motion and verified Complaint that defendants, without right or authority assert a right to enter upon said property and to grade and construct roads and to explore and drill the same for mineral bodies, and if discovered to mine the same and to control the aforesaid premises and appropriate the same and the use and occupation thereof to the defendants exclusively, so as to deprive the plaintiff of its right of ownership in and to said lands and to thereby destroy the value of said premises as a scenic and tourist attraction; and for all such reasons, this Temporary Restraining Order is granted, without notice to the defendants herein of a hearing thereon.'

With these added factors it seems doubtful whether, under the peculiar facts of this case, the legislature intended by enactment of the statute in question to deny plaintiff immediate relief without notice.

However, assuming, without deciding, that section 12-1807, supra, is applicable and governs rather than Rule 65(d),Rules of Civil Procedure, 16 A.R.S.--which rule undoubtedly formed the basis for the issuance of the order in question--because some mining operations are concededly involved here, still we believe that defendant is endeavoring to unduly narrow the issue by contending in his brief

'* * * that the Court did not decree an injunction but confined his Judgment to the temporary restraining order which was the only injunction in force at the time of making the order, so we are concerned only with the validity of the restraining order.'(Emphasis supplied.)

As a matter of law the temporary restraining order became functus officio when superseded by the court's orders of November 18th and December 24, 1957.The latter order--which is the subject of this appeal--as we interpret it, in effect, granted a temporary injunction after a full hearing thereon.The distinction is succinctly stated in 28 Am.Jur., Injunctions, section 11, viz.:

' § 11.Restraining Orders.A temporary restraining order, which in effect a species of injunction, is in some respects to be distinguished therefrom.It is an interlocutory order or writ issued by the court upon an application for an injunction, and is intended as a restraint on the defendant until the propriety of granting a preliminary injunction can be determined, thus going no further in its operation than to preserve the status quo until that determination.When that determination is made, the whole force of the temporary restraining order ceases by its own limitations.It is intended only as a restraint on the defendant until the propriety of granting an injunction pendente lite can be determined,...