Swansea Properties, Inc. v. Hedrick

• Court: Arizona Court of Appeals
• Writing for the Court: DONOFRIO; STEVENS, C.J., and CAMERON
• Citation: Swansea Properties, Inc. v. Hedrick, 416 P.2d 1015, 3 Ariz.App. 594 (Ariz. App. 1966)
• Decision Date: 27 July 1966
• Docket Number: CA-CIV
• Parties: SWANSEA PROPERTIES, INC., Appellant, v. Sam HEDRICK, Sr., Elmer R. Ragsdale, James C. Hedrick, Richard C. Newth, and John E. Challinor, Appellees. ,1313.

Page 1015

416 P.2d 1015

3 Ariz.App. 594

SWANSEA PROPERTIES, INC., Appellant, v. Sam HEDRICK, Sr., Elmer R. Ragsdale, James C. Hedrick, Richard C. Newth, and John E. Challinor, Appellees.

,1 CA-CIV 313.

Court of Appeals of Arizona.

July 27, 1966.

Rehearing Denied Sept. 2, 1966.

Ingraham, Dennis & Jones, by F. Lewis Ingraham, Yuma, for appellant.

Mackenzie, Scott, Gasser & Bolze, by Albert H. Mackenzie, Phoenix, for appellees.

DONOFRIO, Judge.

This is an appeal by Swansea Properties, Inc., defendant below, from the granting of summary judgment in favor of the appellees, plaintiffs below, Sam Hedrick, Sr., Elmer R. Ragsdale, James C. Hedrick, Richard C. Newth and John E. Challinor. We shall hereafter designate the parties as they appeared below.

Plaintiffs brought this action to quiet title to a group of sixteen unpatented mining claims, Ferro Caballo, Nos. 1 through 4, and 6 through 17, located in Yuma County. Their right is based on relocations of these claims after they were abandoned or forfeited by defendant for failure to do annual assessment work.

Briefly the facts are: The same parties were involved in an earlier quiet title action (Case No. 21486) covering the same ground although the names of the claims were different. The earlier claims were called Iron Horse and the present ones have been named Ferro Caballo.

Although the trial court took judicial notice of its file No. 21486, this Court can only consider that which appears on the record before us. In reviewing the proceedings below we do not look beyond the record on appeal. Lawless v. St. Paul Fire & Marine Insurance Co., etc., 100 Ariz. ---, 415 P.2d 97 (1966); Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963); State Automobile & Casualty Underwriters v. Engler, 90 Ariz. 321, 367 P.2d 665 (1961). The order granting the motion for summary judgment contains the only information regarding this lawsuit. The court said:

'The file in #21486 shows that on June 1, 1964, the Court ordered the trial reopened on the question of 'mineral in place' in the discovery shafts and subsequently held that the failure of plaintiff to establish 'mineral in place' in the discovery shafts was fatal to certain of the claims being litigated at that time. (these claims covered the same ground as the Ferro Caballo claims) The court dismissed the case as to them and entered judgment quieting title in certain other claims where the existence of 'mineral in place' in the discovery shafts had been established.'

As background the following facts are helpful. While the parties were involved in the quiet title action No. 21486, the plaintiffs noting that the defendant had done no assessment work during the mining year September 1, 1962 through September, 1963 on the area in dispute (Iron Horse claims 1 through 17) and that it had not petitioned the Federal Government for a deferment of the annual assessment work pending the litigation as provided by 30 U.S.C.A. Sec. 28b through 28e thereupon relocated the same grounds on March 28, 1964 with their Ferro Caballo claims. This was around seven months after the deadline for doing the annual assessment work of September 1, 1963.

There is no genuine issue as to any material fact on this point. The motion for summary judgment had attached to it an affidavit of John E. Challinor wherein he set forth facts and stated that defendant did not perform any assessment work at any time between November 4, 1961 and July 19, 1964. The defendant is obligated to file affidavits in opposition thereto otherwise the facts stated therein are to be accepted as true. Martinez v. Coombs, 93 Ariz. 127, 379 P.2d 118 (1963).

Plaintiffs contend that the mining ground in question became open for location when the defendant failed to keep up its assessment work. Defendant, on the other hand, urges that plaintiffs as parties to suit No. 21486, are precluded from taking advantage of the failure of the defendant to do the required assessment work during the pendency of said suit and are estopped from relocating the claim.

We cannot agree with defendant. The language involved is contained in 30 U.S.C.A. § 28, as amended, and reads as follows:

'On each claim located after the 10th day of May 1872, and until a patent has been issued therefor, not less than $100 worth of labor shall be performed or improvements made during each year * * *; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.'

and 30 U.S.C.A. § 28b reads as follows:

'The performance of not less than $100 worth of labor or the making of improvements aggregating such amount, which labor or improvements are required under the provisions of section 28 of this title to be made during each year, may be deferred by the Secretary of the Interior as to any mining claim or group of claims in the United States upon the submission by the claimant of evidence satisfactory to the Secretary that such mining claim or group of claims is surrounded by lands over which a right-of-way for the performance of such assessment work has been denied or is in litigation or is in the process of acquisition under State law or that other legal impediments exist which affect the right of the...