Karnes v. Flint

• Decision Date: 02 August 1929
• Docket Number: 21889.
• Citation: 279 P. 728,153 Wash. 225
• Parties: KARNES et al. v. FLINT et al.
• Court: Washington Supreme Court

279 P. 728

153 Wash. 225

KARNES et al. v. FLINT et al.

No. 21889.

Supreme Court of Washington

August 2, 1929

Department 1.

Appeal from Superior Court, King County; Ralston, Judge.

Action by F. A. Karnes and another against T. E. Flint and others. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

H. A Martin, of Seattle, for appellants.

Bausman Oldham & Eggerman, of Seattle, for respondents.

BEALS J.

This litigation involves the possessory rights to two groups of mining claims in the Mt. Constance mining district of Jefferson county, claimed under location notices and relocation notices, posted and filed in compliance, or attempted compliance, with the federal mining laws and the Mining Code of this state.

Plaintiff F. A. Karnes, together with one L. A. Wallin, during the year 1918, located, on the south slope of Mt. Constance, 16 lode mining claims, supposed to be valuable for the manganese therein contained, which they designated as the 'Elkhorn Group of Mining Claims.' It appears from the testimony that there are three ore-bearing ledges on the mountainside running approximately north and south, up and down the slope. By mistake the original locators established their 16 claims across, instead of along, the ledges.

During the month of January, 1925, Mr. Karnes, together with defendant H. I. Soles and one Dowling, incorporated the plaintiff American Manganese Corporation, having a capital stock of $2,000,000 non-par value shares, for all of which, with the exception of 2,000 shares, Mr. Karnes subscribed, paying therefor by quitclaiming to the corporation his interest in the Elkhorn group. Mr. Karnes has been, ever since the organization of the corporation, its president, one of its trustees, and the principal stockholder. Mr. H. I. Soles was, from the date of the organization of the corporation until March, 1928, one of its trustees and also its secretary-treasurer. After the commencement of this action, Mr. Wallin quitclaimed to the corporation his interest in the Elkhorn group.

In March, 1925, Mr. Karnes relocated the claims correctly, so that they ran along, instead of across, the lodes; the location notices being signed in the name of the American Manganese Corporation (who will hereinafter be referred to as the corporation). During the following July Mr. Karnes, in his own name, located a group of 12 additional claims, which he called 'Extension to Elkhorn group,' which claims border on one end of the Elkhorn group, and with it form something like a reversed letter L. October 15, 1925, Mr. Karnes filed for record the location notices of his extension group of claims, but failed to file the notices of amended location of the claims of the original Elkhorn group. He did, however, file for record his affidavit stating that the Elkhorn group 'has been rearranged to comply with the law.'

During the assessment year 1925-26 a cabin was built on claim extension 4, and trails were constructed across portions of the Elkhorn group. At the time of the trial the Elkhorn group was owned by the corporation, and the extension group by Mr. Karnes, each in severalty.

Some time after June 30, 1927, defendant S. J. Witcombe, believing that no proper or sufficient assessment work had been done during the preceding assessment year to hold the mining claims, attempted to relocate the ground. Defendant Witcombe offered no evidence on the trial of the action, and apparently abandoned any rights which he might have acquired under the location notices which he posted.

In February, 1928, defendant Rodriguez made an examination of the ground embraced within the two groups of claims, and, believing that default had been made in the performance of the required annual assessment work, attempted to locate 13 claims along the three ore ledges, which he called the 'Constance Group of Mining Claims'; his notices of location being filed for record February 27, 1928.

Defendants concede that these location notices were defective, in that they failed to comply with the law; the notices not stating that the claims were located upon abandoned ground. Rem. Comp. Stat. § 8629; Lindley on Mines, § 408; Florence-Rae Copper Co. v. Kimbel, 85 Wash. 162, 147 P. 881. Mr. Rodriguez, realizing that his first notices were fatally defective, posted amended notices, in which it was stated that the locations covered abandoned ground, which amended notices were filed for record in the office of the county auditor within 90 days from the date of the posting of the original notices.

The evidence introduced by plaintiffs was to the effect that during the assessment year 1926-27 Mr. Karnes out of his own means paid one Metzler for the performance of 55 days' work on the claims at the rate of $5 a day, and that in June of that year Mr. Karnes himself and a man named Cole each worked on the claims 9 days, and that they left provisions and tools in the cabin on claim extension 4; that during the assessment year 1927-28 Mr. Karnes, in the month of August, took in provisions by pack horses and himself worked 5 days on the claims, awaiting the arrival of Mr. J. T. Hubbard, a mining engineer then in the employ of Robert M. Adams Company, a prospective purchaser of the properties. Mr. Hubbard not arriving, Mr. Karnes departed, leaving tools and provisions in the cabin. This same month Mr. Karnes delivered to defendant H. I. Soles, as his agent, a written authorization to sell all his interest in the mining claims and the corporation for $5,000 net.

The Adams Company, during the following September, having taken an option on both groups of mining claims, Messrs. Karnes and Hubbard visited the property in December, each putting in 11 days' work. December 31, defendant Witcombe posted on the ground 30 location notices in an attempt to relocate the same. February 26, 1928, Messrs. Karnes and Hubbard, together with one Smith, visited the property and discovered the location notices which had been posted by defendant Rodriguez, who, as Mr. Karnes testified, was occupying the cabin together with defendants R. O. Soles, C. P. Haugen, and A. Ferguson, where they had been consuming the provisions and using the tools left there by Mr. Karnes.

Between the date last mentioned and June 30 following, work was done on the properties on behalf of plaintiff, with the intention of complying with the law requiring that assessment work be performed annually in order to hold the claims. It is important to note that this work was commenced prior to the posting by Rodriguez of his amended location notices.

Plaintiffs jointly instituted this action, in which they sought a decree quieting their titles to the two groups of mining claims as against defendants and each of them. From a decree in plaintiffs' favor, defendants appeal.

Appellants urge 43 assignments of error, the first group of which are based upon the refusal of the trial court to sustain their contention that there was an improper joinder of parties plaintiff. Respondents alleged in effect a joint ownership on the part of the two respondents of the two groups of mining claims. As a matter of fact, respondent corporation owned one group and respondent Karnes owned the other group; each ownership being in severalty.

Appellants earnestly contend that this state of facts presents an improper joinder of parties plaintiff and of several and distinct causes of action, and that the proof showed a variance which entitled appellants to an order of dismissal. Respondents contend that the evidence showed a conspiracy on the part of appellants for the purpose of depriving respondents of their respective properties. The evidence shows that some of the location notices posted by appellant Rodriguez covered portions of claims in both the Elkhorn and the Elkhorn extension groups.

It is, of course, obvious that appellants were in no wise misled by the allegations of respondents' complaint, as the facts of the ownership of the respective groups of claims must have been will known to all parties interested. While the trial court should probably have granted appellants' motion to require respondents to make their complaint more definite and certain, by setting forth therein, or by way of a bill of particulars, the respective interests of respondents in the claims referred to in the complaint, we do not find that the denial of this relief to appellants resulted in such prejudice as now requires any action by this court. It does not appear that appellant sought to elicit the desired information by way of interrogatories, after the denial of their motion to make the complaint more definite, and we hold that as to this matter the record fails to show the commission of reversible error by the trial court.

In our opinion, under the circumstances disclosed by this record, respondents properly joined as plaintiffs under rule II of the Rules of Pleading, Procedure, and Practice, adopted by this court January 14, 1927, pursuant to chapter 118, p. 187, Laws of 1925, Extraordinary Session, paragraph 1 of which rule reads as follows:

'All persons may be joined in one action, as plaintiffs, in whom any right to relief in respect of, or arising out of, the same transaction or series of transactions, is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise; Provided, That if, upon the application of any party, it shall appear that such joinder would embarrass or delay the trial of the action, the court may order separate trials or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be

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