State v. Rawson
| Decision Date | 19 June 1957 |
| Citation | 210 Or. 593,312 P.2d 849 |
| Parties | STATE of Oregon, by and through its State Highway Commission, composed of Ben R. Chandler, Charles H. Reynolds and M. K. McIver, Appellant, v. Fred P. RAWSON and Sam D. Rawson, Respondents. |
| Court | Oregon Supreme Court |
Norman N. Griffith, Portland, argued the cause and filed a brief for respondents.
Before PERRY, C. J., and BRAND, McALLISTER and KESTER, JJ.
This is a suit in equity brought by the State of Oregon by and through its Highway Commission against the defendants Fred P. and Sam D. Rawson, wherein plaintiff seeks an injunction restraining the defendants from trespassing upon and removing cinders from the lands described. The trial court dismissed the suit and plaintiff appeals. The complaint alleges that the plaintiff is the owner and in possession of 'The southeast quarter (SE-1/4) of the southwest quarter (SW-1/4) of Section 13, Township 11 South, Range 12 East, W. M., Jefferson County, State of Oregon.' It is further alleged that on 3 August 1953 plaintiff commenced an action at law for damages sustained by reason of the wrongful entry upon plaintiff's property by the defendants and the removal by said defendants of large quantities of cinders, and that on the 22nd day of January 1954 defendants wrongfully entered upon the property and removed large quantities of cinders. It is alleged that defendants threaten to continue to trespass and remove cinders, and the prayer is for an injunction. Defendants separately demurred to the complaint. The demurrers were properly overruled. The complaint stated facts which if proven would warrant injunctive relief. Each defendant then filed a 'second amended answer and counterclaim' denying the material allegations of the complaint.
It is admitted that plaintiff commenced an action at law against the defendants on 3 August 1953 and that Sam Rawson was on the claim of Fred on 7 January 1954 and had a power shovel thereon and on 2 February 1954 was working a power shovel on the 'above described land.' By way of 'counterclaim' defendants allege that defendants Rawson were and are a group and an association of persons who on 12 February 1953 located the following placer mining claims, each containing 20 acres more or less, the east half of the land described in the complaint being located as a mining claim by Fred and the west half being located as such claim by Sam Rawson. Defendants allege that at all times subsequent to 12 February 1953 defendants have been and are the owners of and entitled to the possession of said placer mining claims. We quote from the answers:
'IV.
Defendants allege that they are in possession of said land and they set forth the development work done thereon. They allege that the lands contain volcanic cinders in commercial quantities and that they are valuable minerals having a market value. They further allege that:
'VII.
'VIII.
'At all times herein subsequent to April 10, 1953, defendants Rawson have been and are now lessee of the said land from the State of Oregon upon a royalty basis of ten per cent of the gross value of all minerals produced and said lease is without limitation as to time.'
Defendants then state that they have produced not more than 400 cubic yards of cinders having a gross value of fifty cents per yard and that ten per cent of the said value is $20.
It is alleged that defendants have not tendered said royalties to the State Land Board because such tender would be useless, but they now tender the royalties. Defendants allege due performance of the 'lease' and due diligence in the development and operation. They pray that plaintiff's complaint be dismissed and that the plaintiff State of Oregon and the Highway Commission be enjoined from action inconsistent with defendants' said lease.
The plaintiff filed replies, in effect, denying that defendants located any placer claims on the lands described or that defendants are owners thereof. Plaintiff further denies the allegations of Paragraph IV of the counterclaim quoted supra. It admits that defendants did development work; admits that the land contains volcanic cinders having market value; admits that defendants made application to the State Land Board and that the land is subject to the control of the Highway Commission; admits that no tender was made to the Land Board. Plaintiff denies that defendants are lessees of the land and denies the other allegations of the answers.
At the opening of the trial it was agreed that the case was 'very largely a question of law', the plaintiff contending that the statute on which defendants relied was not applicable to the land in question. The parties stipulated that at the time defendants filed their application for a lease the property was owned by the plaintiff. The citizenship of defendants is admitted. It is admitted that defendants 'purportedly located' the placer mining claims on the lands described and complied with the formalities of the mining law, the question as to the legal effect of the purported location being in dispute. Plaintiff admitted the allegations of paragraph IV of the counterclaim (see supra) except that it denies that the lands were unoccupied, unclaimed or unappropriated. It is stipulated that defendants made excavations and did development work and had a power shovel on the lands at various times and removed cinders and tendered into court the alleged royalties and performed the conditions of the purported lease. The following exhibits were received without objection: the notice of location of placer mining claims dated February 12, 1953; and the application to the State Land Board for a lease. Other exhibits received without objection were two letters from the clerk of the State Land Board denying the authority of the Board to execute the requested lease. Other stipulations were that Round Butte on which the disputed tract is located is 600 feet above the surrounding country; that there were laid bare in excess of 50,000 cubic feet of cinders on the claim and that in 1951 F. L. Summers removed substantial quantities of cinders from the abutting 40 acres with the consent of the Highway Commission and that they were used on a county road pursuant to an agreement between the United States, the State of Oregon and Jefferson County.
In his opening statement counsel for the plaintiff said that 'The whole case depends upon whether the statute authorizing a lease by the Land Board applies to the property in question.' Counsel for defendant agreed. Counsel for plaintiff also made a qualified admission, as follows:
'* * * The question is, by Statute does that cover this land or does it not.
'The Court: That one is the Statute that provides the State Land Board may grant a lease?
'Mr. Wyckoff: That's right.
'The Court: And if it fails to grant a lease under certain claim or condition then the party seeking----
'Mr. Wyckoff: He is more or less granted a lease by operation of law and payment of royalty. * * *'
We do not consider that this court is bound by the 'more or less' admission of counsel that because the parties did not agree on the royalties to be paid defendants had a lease by operation of law. Counsel cannot give up the rights of the state by an admission as to the legal effect of a statute. We will first consider the contention of the defendants that they became lessees by operation of law. We will then address ourselves to the basic question on which the parties have submitted the case, namely, whether the statute authorizing mining leases by the State Land Board applies to this land purchased by the State Highway Commission.
By their own allegations it is established that defendants made written applications to the State Land Board for a lease and the Board refused to execute any lease for the reason that the Highway Commission was in control of the land. How then do defendants support the allegations that they are now lessees? Their reliance is expressly placed upon Oregon Laws 1941, chapter 262 which remained in effect from its enactment until the passage of Laws of 1955, chapter 528. The 1941 law was therefore in effect and was controlling at the time of the alleged location of placer claims, the filing thereof, the application for lease, and the adverse action thereon by the Land Board and the alleged trespasses by the defendants and the filing of plaintiff's suit. The statute provides:
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