Velasco v. Mallory, 2

• Decision Date: 27 April 1967
• Docket Number: No. 2,CA-CIV,2
• Parties: Bernardo C. VELASCO, Mary A. Beard, a widow, Juana C. Velasco, a widow, George P. Bartlett, Rudolph C. Velasco, Louise Adams, a widow, Silas W. Lehmer, plaintiffs in 13,538--B, and Bernardo C. Velasco and Consuelo P. Velasco, his wife, and Frank M. Calderon, plaintiffs in 13,539--B, Appellants, v. Guy MALLORY, Appellee. John L. Splane, Applicant for Intervention and Appellant. * 246.
• Court: Arizona Court of Appeals

Page 540

427 P.2d 540

5 Ariz.App. 406

Bernardo C. VELASCO, Mary A. Beard, a widow, Juana C. Velasco, a widow, George P. Bartlett, Rudolph C. Velasco, Louise Adams, a widow, Silas W. Lehmer, plaintiffs in 13,538--B, and Bernardo C. Velasco and Consuelo P. Velasco, his wife, and Frank M. Calderon, plaintiffs in 13,539--B, Appellants, v. Guy MALLORY, Appellee.

John L. Splane, Applicant for Intervention and Appellant. ^*

No. 2 CA-CIV 246.

Court of Appeals of Arizona.

April 27, 1967.

Rehearing Denied June 12, 1967.

Review Denied Sept. 21, 1967.

Verity & Smith, by Victor H. Verity and Leo N. Smith, Tucson, for appellants.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by E. F. Rucker, Tucson, for appellee.

Rees, Estes & Browning, by Paul G. Rees, Jr., Tucson, for intervenor-appellant.

HATHAWAY, Chief Judge.

This case involves two appeals arising out of an action to quiet title to unpatented mining claims. The trial court treated the matter as a possessory action between the parties. Bagg v. New Jersey Loan Co., 88 Ariz. 182, 354 P.2d 40 (1960); Bowen v. Chemi-Cote Perlite Corp., 5 Ariz.App. 28, 423 P.2d 104 (1967).

Appellants, Bernardo C. Velasco, et al., initiated an action in the superior court in Gila County, seeking to quiet title to unpatented lode mining claims known as the Chilito claims situated in the Banner Mining District, Gila County, Arizona. The Velascos filed a second action in the same court, seeking to quiet title to the Chilito Extension Groups, located in the same district and county.

Appellee, Guy Mallory, the only answering defendant in both actions, denied the Velascos' ownership and counterclaimed in both actions seeking to have title quieted in his overlying Black Eagle group of unpatented lode mining claims. The Velascos replied to the counterclaims, denying Mallory's claimed conflicting interest. The cases were consolidated and tried to the court. They remain consolidated in this appeal.

At trial, after all the evidence was in, Mallory moved to dismiss the Velascos' complaints and moved for judgment on the counterclaims. The Velascos moved to dismiss Mallory's counterclaims for failure to join a co-owner of the Black Eagle claims (Casias), contending he was an indispensable party to the counterclaims. The Velascos' trial counsel withdrew prior to entry of judgment. Their present counsel did not participate in the trial. The court ruled for Mallory and judgment was entered establishing that the Black Eagle group of claims was prior to the Velasco claims.

The judgment was vacated on motion of the Velascos. An amended judgment was entered resizing the Black Eagle claims and establishing that as between Mallory and the Velascos, the Black Eagle group of claims was prior. Title to the Velascos' Chilito and Chilito Extension groups was quieted in the Velascos except the areas included within the resized Black Eagle group. The Velascos moved for a new trial. This appeal is from the amended judgment and from the denial of the motion for a new trial.

John L. Splane, alleged co-owner of the Black Eagle mining claims, seeks review of the court's refusal to allow him to intervene after conclusion of the trial.

The litigation concerns an area where one Anton Hogvall, since deceased, had previously located mining claims starting in 1905 through approximately 1935. The Velascos' predecessors in interest had located four claims in 1937. In 1948 the four claims were amended and 17 additional claims were located. These claims known as the 'Chilitos' were located before, and the Chilito Extension group was located after Mallory's.

Mallory's Black Eagle claims, located by his predecessors in interest in 1953, overlap and conflict with major portions of the Velascos' claims. The following diagram depicts the position of the claims. The Hogvall and the original Black Eagle dimensions are as indicated. All other claims are standard size, 600 feet by 1500 feet. At trial, the Velascos claimed: (1) that the Chilito claims were located before the Black Eagle claims and, (2) that the assessment work had been performed on the Chilitos for the assessment year ending prior to the location of the Black Eagle claims.

Mallory maintained: (1) that, due to the existence of the Hogvall claims, the area within the Black Eagle claims was closed to location at the time of location of the Velascos' claims; (2) that the Hogvall claims were abandoned prior to location of the Black Eagle claims; (3) that the location work performed upon the Velascos' claims was insufficient, or that the assessment work was inadequate.

In studying the record, we have considered the evidence in the light most favorable to sustain the judgment.

The following questions are presented for decision:

1. Is a nonjoined co-owner an indispensable party to a quiet title action?

2. Must a locator, such as Mallory, claiming areas within a prior location (Chilitos) prove the validity of third party (Hogvall) claims relied upon to defeat the prior location?

3. Was the evidence sufficient to establish an abandonment or forfeiture of the Hogvall claims before relocation of the Black Eagle group?

4. Must the Hogvall claims be resized first to determine which area was available for relocation?

FAILURE TO JOIN CO-OWNER

John L. Splane's interest was acquired by quitclaim deed from V. L. Burns, who had previously been dropped as a party defendant. Splane attempted to intervene after trial and after a minute entry order that judgment was to be entered in favor of Mallory. The Velascos join with him in his contention that he should have been permitted to intervene. At the pretrial conference the parties entered into the following stipulation:

'Plaintiffs and defendants stipulate that the complaints may be dismissed as to the following parties: V. L. Burns, and unknown heirs of Tom C. Casias.'

The Velascos having joined in this stipulation are bound and are precluded from raising the question on appeal:

'Objections to the omission of an indispensable party or necessary party may ordinarily be raised for the first time in the appellate court unless the complaining party himself is responsible for such defect.'

39 Am.Jur. Parties § 5. See also 67 C.J.S. Parties § 126.

Splane contends that as a matter of law he was entitled to intervene, that his intervention was timely, and that the judgment subsequently entered directly and injuriously affected his real property rights and left title to the property 'in a confused condition.' He claims a right to intervene under Rule 24 of the Arizona Rules of Civil Procedure, 16 A..R.S., providing for intervention of right and permissive intervention.

'24(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action:

'1. When a statute confers an unconditional right to intervene.

'2. When the representation of the applicant's interest by existing parties is or may be inadeuate and the applicant is or may be bound by a judgment in the action.

'3. When the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or of an officer thereof.

'24(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action:

'1. When a statute confers a conditional right to intervene.

'2. When an applicant's claim or defense and the main action have a question of law or fact in common.

'In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'

Splane complains that the judgment creates a cloud on his record title and '* * * creates false impression * * *' as to his position regarding ownership. This argument is groundless in view of the care of the superior court judge in limiting the issues. The amended judgment provided that the issues were 'limited solely to the claims of the plaintiffs against the defendant, Guy Mallory, and that the rights of no other than said persons are involved.'

Splane points out that if the excess of the oversized claims is discarded without joinder of the other co-owners, '* * * then theoretically the other two people may later choose entirely separate areas, or a court in a later action might well determine that the boundaries of the claim were different then those determined in the initial action * * *.' We have not been shown how Splane is actually injured or adversely affected by this judgment, nor do we believe that he is or can be. His distress lies in problems which at this stage are imaginary. We will not render advisory opinions anticipative of troubles which do not exist; may never exist; and the precise form of which, should they ever arise, we cannot predict. 5 C.J.S. Appeal and Error § 1455; Phoenix Metals Corp. v. Roth, 79 Ariz. 106, 284 P.2d 645 (1955).

A tenant in common may maintain an action to remove a cloud from the common property without joining his co-tenant. 74 C.J.S. Quieting Title § 55, p. 78; McCleary v. Broaddus, 14 Cal.App. 60, 111 P. 125 (1910); See 61 Colum.L.Rev. 1254 (1961); 30 So.Calif.L.Rev. 80 (1957). The trial court, having acquired jurisdiction over the parties and their respective interests in the property through due process, had the power to render the limited judgment that was given.

Apparently the trial judge recognized Splane as a permissive intervenor asserting a claim having questions of law and fact in common with the main action. In denying the attempted intervention after trial, the trial court properly exercised its discretion in keeping with the admonition in Rule 24(b), Arizona Rules of Civil Procedure, that '* * * the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.' The trial court's action is supportable on the theory that the parties before it should not be...