State v. Tracy, 5584

• Court: Supreme Court of Arizona
• Writing for the Court: UDALL; STANFORD; WINDES, J., being disqualified, PATTERSON
• Citation: 76 Ariz. 7,257 P.2d 860
• Parties: STATE v. TRACY et al.
• Docket Number: No. 5584,5584
• Decision Date: 01 June 1953

Page 860

257 P.2d 860 76 Ariz. 7 STATE
v.
TRACY et al. No. 5584. Supreme Court of Arizona. June 1, 1953.

[76 Ariz. 8] Fred O. Wilson, Atty. Gen., and R. G. Langmade, Asst. Atty. Gen., for appellant.

Shute & Elsing, of Phoenix, for appellees.

UDALL, Justice.

Sam P. Tracy and P. D. McIntyre, plaintiffs, brought an action against the State of Arizona, et al., and recovered a judgment against the State for damages in the sum of $5,000, from which judgment this appeal was taken.

Page 861

The parties are now before us in the reverse order of their appearance in the trial court, but for convenience reference will be made to them herein as they there appeared, namely as plaintiffs and defendant.

Originally the action was directed against the five members of the State Highway Commission, the State Engineer, and the Yount Construction Company--the latter being the contractor on a strip of the Ehrenburg-Wickenburg Highway (U. S. 60, 70). They were charged with having entered upon and having occupied a group of 26 unpatented mining claims--in the La Paz mining district of Yuma County--allegedly belonging to the plaintiffs, without either obtaining their consent or filing a proceeding to obtain a right of way by condemnation. Later the State of Arizona was, by court order, made a party defendant and the complaint against the contractor dismissed. Following a trial before the court, sitting without a jury, judgment was entered for the individually named defendants, the State alone being held liable for the taking of property without due process. The court made no findings of facts as a request for same was withdrawn.

[76 Ariz. 9] The amended complaint alleges that plaintiffs were and now are the owners of and in possession of the unpatented mining claims in question. The defendant by its answer denies the purported mining claims are valid and subsisting; denies that plaintiffs are the owners thereof; and alleges that the construction by the State of this highway across these claims was wholly upon land within a 400-foot easement for right of way duly and regularly acquired by the State, from the United States, on March 6, 1947.

There is no question about the validity of the right of way easements, but these were expressly given 'subject to all valid existing rights'. As to the land within the easements the defendant, as grantee, now occupies the position of the federal government with the right to possession unless plaintiffs can show a prior right to possession by operation of law through compliance with the applicable mining laws. Therefore, the existence or nonexistence of valid unpatented mining claims prior in time to said highway easement is the narrow question.

At the trial the plaintiffs limited their proof to six claims (five placer and one lode), which for convenience will be listed in three groups, viz.:

First Group

Nugget No. 2, a 20-acre placer claim, purportedly located by one Edward Beggs, who filed a location notice dated June 1, 1911, with the County Recorder of Yuma County.

Surething No. 2, a 20-acre placer claim, purportedly located by Edward Beggs and M. Y. Haggerty who filed a location notice dated May 13, 1910 with the County Recorder of Yuma County. These claims are on the West half of Sec. 36, T. 4 N., R. 21 W., G. & S. R. B. & M.

Second Group

High Bar Nos. 1, 2, and 3.

These are the placer claims of 40 acres each, purportedly located by Edward Beggs and M. Y. Haggerty; the location notices were dated January 1, 1916 and recorded with the County Recorder of Yuma County, Arizona. These claims are on Sec. 2, T. 3 N., R. 21 W., G. & S. R. B. & M.

Third Group

Empire Lode claim, purportedly located by Edward Beggs and M. Y. Haggerty, amended location notice dated October 2, 1916, recorded December 1, 1916.

The evidence shows that two placer claims, Surething No. 2 and Nugget No. 2, substantially overlap the Empire Lode claim, and at the time of oral argument before us counsel for plaintiffs stated they were limiting their claim for damages to the gold placer claims involved and that the lode claim need not be considered. Inasmuch as the end result would be the same, we shall confine our discussion to the placer claims.

[76 Ariz. 10] In passing, it might be noted that other than placing in evidence certified photostatic copies of the location notices above referred to there was not a scintilla of evidence offered by the plaintiffs to establish that the original locators, Beggs and Haggerty,

Page 862

had within the time allowed by law, or at all, made a discovery of placer gravel on any of the claims; had monumented the claims on the ground so that their boundaries could be readily traced; or, had posted a copy of location notices thereon. Furthermore it appears that the notices of location of the High Bar group fail to make reference to a natural object or permanent monument as will identify the...